A proposed amendment would turn the unconstitutional anti-sex-trafficking bill known as the FOSTA Frankenstein into something slightly less monstrous
Senator Ron Wyden is taking a page from Mel Brooks’s 1974 comedy classic Young Frankenstein in a bid to alter the disastrous Fight Online Sex Trafficking Act (FOSTA) — a.k.a. the “Frankenstein bill” — which is galumphing toward a vote in the U.S. Senate next week despite the U.S. Department of Justice having deemed the bill “unconstitutional” in its present form.
Aware that the Senate’s leadership has the votes to limit debate on the bill (after which final approval is virtually guaranteed), the Oregon Democrat is attempting to make the FOSTA Frankenstein a tad less menacing, much in the way that Gene Wilder’s character, Dr. Frederick Frankenstein attempts to transfer his intellect to the body of the brutal behemoth, played by Peter Boyles, thereby civilizing the savage beast.
As Santa Clara University Law Professor Eric Goldman reports on his Technology and Marketing Law Blog, Wyden’s office has proposed an amendment to FOSTA that would at least purge the bill of its most noxious flaws. The new language would allow owners and operators of websites and other internet platforms to edit user content in order to rid it of offensive material, without fear that doing so might be used against them in court.
In his latest post, Goldman urges readers to:
*[I]mmediately* call your Senators (you have 2, remember!) and tell them:
1) You oppose SESTA/FOSTA because it’s not clear the law actually helps sex trafficking victims; and
2) You want your Senator to support Sen. Wyden’s proposed content moderation amendment because it ensures online services will keep being the first line of defense in the fight against sex trafficking.
Note 1: This issue could be moot as early as Monday afternoon, so literally CALL NOW.
Note 2: CALL, not email. The EFF has made it easy for you to do.
As it stands, FOSTA would blow a colossal hole in Section 230 of the Communications Decency Act of 1996. That piece of legislation, which Wyden co-wrote, holds individual users — as opposed to website operators or social-media platforms — responsible for any civil or criminal liability that results from material they publish online. FOSTA would flip that rule on its head and create an exception for content that facilitates sex trafficking, or even consensual prostitution among adults.
Faced with the possibility of decades in prison under FOSTA — 10 years for an ad involving one person, 25 years for one involving five or more — website owners would have to address what Goldman calls the “moderator’s dilemma”: either assume full responsibility for policing their sites and hire additional manpower and legal help, or eschew moderation altogether in order to avoid liability.
Wyden’s amendment would help things by shoring up Section 230’s so-called “safe harbor” provision with the following language:
“The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove material the provider or user considers objectionable shall not be considered in determining the criminal or civil liability of the provider or user for any material that the provider or user has not removed or restricted access to.”
That same amendment would address concerns regarding FOSTA’s retroactivity provision, which otherwise would allow federal and state prosecutors to pursue civil and criminal charges against website owners and operators for actions that occurred prior to FOSTA becoming law. As the Justice Department noted in its opinion, which was made public just before the House passed its version of FOSTA, the U.S. Constitution prohibits such ex post facto statutes.
Owing to this and other significant problems with the legislation, the DOJ declined to support FOSTA. Wyden’s amendment would not strike the bill’s retroactivity provision, but it would make the safe-harbor language retroactive as well, so that prosecutors would not be able to use a moderator’s past policing as evidence of alleged wrongdoing.
Contacted by Front Page Confidential, an aide to Wyden gave the following explanation, asking not to be identified:
“Senator Wyden is attempting to provide guaranteed funding to prosecute actual sex traffickers and help victims of these heinous crimes. He has also proposed language to encourage websites to make good-faith efforts to go after bad actors without becoming targets for litigation.”
Wyden has already conceded via Twitter that FOSTA is certain to pass the Senate, after which President Trump’s signature is all that’s required to make it law. (Ergo the urgency.)
In addition to the content-moderation amendment, Wyden has drafted a separate amendment that would appropriate $20 million for the U.S. Attorney General to prosecute “website operators that criminally facilitate sex trafficking or the sexual exploitation of children.”
If the Senate adopts either or both of Wyden’s amendments, the bill would have to go back to the House of Representatives for approval.
Sources tell Front Page Confidential that the House would likely pass the amended bill. But barring some sort of intervention, such as the phone blitz Goldman suggests, senators and activists seem determined to turn the monster loose on the world, complete with its “Abby Normal” wording (as Marty Feldman’s Igor, rest his soul, might have said).
Unlike Mel Brooks’s iconic comedy, however, there’s nothing remotely funny about FOSTA.
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