The Electronic Frontier Foundation has filed a federal lawsuit asking the court to declare the Fight Online Sex Trafficking Act (FOSTA) unconstitutional
The Electronic Frontier Foundation (EFF) filed a federal lawsuit on June 27 seeking to overturn FOSTA, a recently enacted federal law that makes it illegal to “facilitate” or “promote” prostitution online and expands civil and criminal liability for websites regarding sex trafficking.
The 52-page complaint in Woodhull Freedom Foundation et al. v. United States argues that the Fight Online Sex Trafficking Act (FOSTA) — which Congress in March and President Donald Trump signed into law on April 11 — violates the First Amendment’s guarantee of freedom of speech and the Fifth Amendment right to due process. The suit also contends that a retroactivity provision in the statute violates the Constitution’s prohibition on ex post facto laws — i.e., laws that outlaw acts that were legal at the time they occurred.
Along with EFF, the plaintiffs are represented by two heavy-hitting First Amendment law firms — Davis, Wright Tremaine and Walters Law Group — and by cyberlaw expert Daphne Keller, former general counsel at Google who’s now with Stanford University’s Center for Internet and Society.
The lawsuit notes that FOSTA conflates commercial sex among adults with “sex trafficking,” — the latter of which federal statute defines as involving minors in the sex trade, or bringing adults into prostitution through force, fraud, or coercion. Punishments for violations of FOSTA are severe. Anyone who “owns, manages, or operates an interactive computer service” with the intent to “promote or facilitate the prostitution of another person” could be imprisoned for up to 10 years. Violations that involve five or more persons, or the “reckless disregard” of conduct contributing to sex trafficking, could land a defendant behind bars for 25 years.
BREAKING: EFF has filed a lawsuit asking the federal court to declare FOSTA unconstitutional. https://t.co/84U1Kbi4SW
— EFF (@EFF) June 28, 2018
Already, the combination of FOSTA’s potentially ruinous criminal and civil penalties and its vague wording has chilled free speech online.
“Fear, Outrage, Activism: Sex Work After FOSTA/SESTA and the Demise of Backpage”
According to the federal complaint, FOSTA has “muzzled countless online speakers and led to closure of many online platforms that hosted their speech.” Among the casualties: Several sections on Craigslist, including the personals; and Reddit’s r/Escorts and r/Sugar Daddy forums. A recent real-world consequence: Desiree Alliance, an international nonprofit sex workers’ collective canceled its next scheduled biennial conference, which had been slated for 2019.
That kind of fallout sheds light on the concerns of the lawsuit’s five plaintiffs:
- Eric Kosyk, a licensed massage therapist in Portland, Oregon. Kosyk advertised his services on Craigslist, which shut down its “therapeutic services” section in response to FOSTA.
- Human Rights Watch. According to the suit, this nonprofit, which monitors human-rights violations worldwide, is concerned that it could be targeted for prosecution under FOSTA because it explicitly “opposes the criminalization of consensual adult sex.”
- Alex Andrews, treasurer of the Sex Workers Outreach Project USA (SWOP USA). Andrews worries that RateThatRescue.org, a website she operates that encourages sex workers to post information about various organizations putatively dedicated to helping them, might fall under FOSTA’s over-broad mandate.
- The San Francisco-based nonprofit Internet Archive. Also known as the Way Back Machine, the archive is dedicated to preserving a historical record of the internet and any “born digital” materials. According to the lawsuit, the archive contains “330 billion web pages spanning from 1996 to the present,” in addition to millions of other files. The site automatically preserves some “80 million web pages per day” via internet bots known as “web crawlers.” Prior to FOSTA, the Internet Archive would be held blameless for all of the content it preserved, thanks to Section 230 of the federal Communications Decency Act of 1996 (CDA). But FOSTA blasted a gaping hole through Section 230, meaning the archive could be liable for housing any content that “facilitates” or “promotes” prostitution or sex trafficking.
- Washington, D.C.-based Woodhull Freedom Foundation. The suit’s lead plaintiff describes itself as the “only national human rights organization that works full time to affirm and protect sexual freedom as a fundamental right.” Its mission includes supporting the rights and welfare of all sex workers, from porn performers to escorts and prostitutes. The nonprofit’s annual Sexual Freedom Summit, scheduled for August 2-5 in Alexandria, Virginia, includes workshops on issues related to sex work, and the organization fears that its online promotion of the workshops will draw the ire of law enforcement or civil litigants.
The Woodhull Foundation’s upcoming event explains the complaint’s request for a preliminary injunction that would halt enforcement of FOSTA no later than August 1, the day before the group’s summit begins.
“FOSTA chills sexual speech and harms sex workers. It makes it harder for people to take care of and protect themselves…Woodhull is deeply concerned about the damaging impact that this law will have on all people.”
Read full press release here: https://t.co/WVsdZotyy0
— Woodhull Foundation (@WoodhullSFA) June 29, 2018
Why We’ve Filed a Lawsuit Against a US Federal Law Targeting Sex Workers https://t.co/HNLFDhTqQm
— Human Rights Watch (@hrw) June 29, 2018
David Greene, a senior staff attorney at EFF, explained to Front Page Confidential that the plaintiffs are not themselves seeking to advertise sex work. They simply want to engage in “legal speech, advocacy, and outreach,” without fear of prosecution or a civil claim.
“What [FOSTA] has done at a minimum is cast a great deal of uncertainty over whether their speech is legal,” Greene said. “They’re discouraged about whether or not they are able to speak, and they’re not speaking when they might be able to.”
Moreover, most of the plaintiffs argue for the decriminalization of sex work, advocacy that law enforcement officials might construe as “facilitating” prostitution. Greene contends that such speech is protected under the First Amendment.
Greene added that EFF is “pretty confident” it will prevail.
“National Sex Workers’ Summit Culminates in Manifesto Calling for Decriminalization of Prostitution”
“New Federal Anti-Prostitution Law Triggers Widespread Censorship Online”
Some legal observers, however, are less optimistic.
Eric Goldman, a professor at Santa Clara University School of Law whose Technology and Marketing Law Blog is a must-read for analysis regarding government regulation of the internet, sounded a cautionary note in a conversation with Front Page Confidential.
Goldman observed that some parts of FOSTA are more vulnerable than others. He said the “expanded crimes” — such as those aimed at the facilitation of prostitution, “create the most First Amendment problems.” But he said he has more trouble envisioning how the “contraction of Section 230” would create a similar First Amendment issue.
Constitutional challenge to SESTA/FOSTA just filed, plaintiffs include @hrw, @WoodhullSFA — my story: https://t.co/r1Lv2gQaD6
— Melissa Gira Grant (@melissagira) June 28, 2018
Goldman predicted that the outcome may well hinge on the judge in the case, and whether he or she is swayed by the plaintiffs’ descriptions of how FOSTA has harmed them.
“Some judges might shrug their shoulders and not be convinced that [the consequences require] intervention,” Goldman said. “Other judges will see the impact that the law has had in ways it wasn’t intended to have.”
Electronic Frontier Foundation’s Constitutional Challenge of FOSTA in Woodhull Freedom Foundation et al. v. United States
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