A last-minute letter from the U.S. Department of Justice deemed the slapped-together FOSTA/SESTA sex trafficking bill "unconstitutional." The House of Representatives passed it anyway.
The U.S. House on Tuesday overwhelmingly approved a poorly conceived bill to combat sex trafficking, notwithstanding an 11th-hour letter from the Department of Justice declaring that the legislation is “unconstitutional.”
Dubbed the “Frankenstein bill” by its critics, H.R. 1865, the Fight Online Sex Trafficking Act (FOSTA), passed 388 to 25 shortly after members approved an amendment, tacked on by Republican Mimi Walters of California, containing elements of the Senate’s version of the bill, known as the Stop Enabling Sex Traffickers Act (SESTA).
As amended, FOSTA combines the worst elements of House and Senate proposals to carve out exceptions to Section 230 of the Communications Decency Act, the benchmark 1996 law that holds interactive websites and platforms harmless for content posted by users. Section 230 is revered by techies and entrepreneurs as the legal principle that makes the internet possible.
During the debate on the bipartisan proposal, Rep. Bob Goodlatte, a Virginia Republican, and Rep. Zoe Lofgren, a Democrat from California, cited a last-minute letter to Goodlatte from the Justice Department, which expressed concerns about the newly slapped-together law.
The most glaring issue: a provision in Walters’s SESTA-derived language that the DOJ says runs afoul of the U.S. Constitution’s prohibition on ex post facto laws — i.e., laws applied retroactively. Goodlatte, the author of the current version of FOSTA, said the error “could subject this legislation to a constitutional challenge.”
The website Techdirt.com later uploaded a copy of the letter, date-stamped February 27. Signed by Assistant U.S. Attorney General Stephen E. Boyd, the letter states that the department cannot support the bill with Walters’s SESTA language appended.
“Insofar as this bill would ‘impose a punishment for an act which was not punishable at the time it was committed’ or ‘impose additional punishment to that then prescribed’ it would violate the Constitution’s Ex Post Facto Clause,” Boyd writes, citing case law to back up the assertion. “The Department objects to this provision because it is unconstitutional.”
Boyd’s letter also criticizes the portion of the Walters amendment that defines “participation in a venture” involving sex trafficking as “knowingly assisting, supporting or facilitating” the crime. The language is drawn directly from SESTA, and opponents of SESTA have lambasted the wording as overbroad and ill-defined.
Boyd writes that the DOJ finds the wording “unnecessary” and potentially harmful.
“History shows that politicians have been remarkably bad at solving technological problems.” — Oregon Sen. Ron Wyden
“While well intentioned, this new language would impact prosecutions by effectively creating additional elements that prosecutors must prove at trial,” the DOJ letter reads. The verbiage, Boyd writes, could have “unintended consequences when applied by the states” (as the new law would allow).
The DOJ also found fault with some of FOSTA’s language as Goodlatte rewrote it in a December markup session before the House Judiciary Committee, where he serves as chairman.
At that time, Goodlatte changed the focus of the initial bill — sponsored by Missouri Republican Ann Wagner — from combating sex trafficking to battling all prostitution, including between consenting adults. (Under federal law, “sex trafficking” is defined as involving minors in commercial sex, or inducing adults into sex work via force, fraud, or coercion.)
Goodlatte’s FOSTA 2.0 creates new criminal statutes. Anyone found guilty of operating or attempting to operate “a facility or means of interstate or foreign commerce” with the intent of promoting or facilitating another person’s work as a prostitute could get 10 years in the slammer. If a defendant is found guilty of promoting or facilitating five or more persons in prostitution, a judge could sentence him or her to 25 years in prison.
Boyd notes that the passage is “broader than necessary” and could “extend to situations where there is a minimal federal interest,” such as a someone using a cell phone “to manage local commercial sex transactions involving consenting adults.”
Though Goodlatte did not formally oppose the Walters’ amendment, Lofgren did, and she asked for a roll call vote on it.
Wagner seemed furious at Lofgren’s interference. She noted that the language of the Walters amendment is identical to that found in SESTA, which has already passed through committee but remains stalled by a hold placed on it by Democratic Senator Ron Wyden of Oregon.
“These two bills [SESTA and FOSTA] depend on each other to address the problem of sex trafficking.” Wagner protested. “Mr. Speaker, we should not allow big-tech money and special interests to try and overdefine this conversation and override our criminal-justice system.”
(Wagner did not explain which aspects of “big-tech money and special interests” applied to the assistant attorney general who wrote the DOJ letter.)
Now that the House has passed its Frankenstein bill, all eyes turn to the Senate.
Section 230 scholar Eric Goldman, a professor at Santa Clara School of Law, predicted this most recent development in the FOSTA/SESTA saga.
In a recent item published on his influential Technology & Marketing Law Blog, Goldman lamented the hybrid anti-trafficking bill, which he labeled, “Worst of Both Worlds FOSTA.”
“FOSTA 2.0: Rep. Bob Goodlatte Rewrites House Sex Trafficking Bill to Target All Illegal Prostitution“
In previous posts, Goldman told readers that he didn’t believe either piece of legislation was a good idea, but that FOSTA was “less likely to do harm to the Internet.” Goldman observed that FOSTA’s “intent” level of criminality did not create the same problems for law-abiding website moderators as SESTA’s “knowingly assisting, supporting or facilitating” standard of wrongdoing. And he regarded the legislative melding of FOSTA and SESTA as a monumentally bad idea.
Speaking with Front Page Confidential after the House vote, Goldman seemed a little surprised that the DOJ’s letter didn’t give pause to more legislators.
“When I first saw the letter, I thought that might slow things down a bit,” he said. “But it didn’t slow anything down at all.”
Goldman added that he found it “bizarre” that the letter had come at the last minute, when “the concerns that the letter raised were apparent in the earlier drafts of the bills from months ago.”
As for the unconstitutionality of the Walters amendment’s retroactivity provision, the professor observed that the Senate’s version of SESTA contains the same language. He pointed out that back in September, University of Notre Dame Law School professor Alex Levy wrote a guest post for his blog that explained why SESTA’s ex post facto section was problematic. In other words, the issue was already out there. (An expert in human trafficking, Levy is a contributor to Front Page Confidential.)
Needless to say, supporters of Section 230 were not happy about Frankenstein-FOSTA’s passage.
Senator Wyden, who co-authored Section 230 back in the 1990s, issued a statement blasting the House for its foolish move, saying, “History shows that politicians have been remarkably bad at solving technological problems.”
In a pessimistic vein, Wyden added:
“This bill will only prop up the entrenched players who are rapidly losing the public’s trust. The failure to understand the technological side effects of this bill — specifically that it will become harder to expose sex traffickers, while hamstringing innovation — will be something that this congress will regret.”
The Electronic Frontier Foundation (EFF), a San Francisco-based nonprofit dedicated to defending civil liberties online, waged a last-ditch campaign to block the FOSTA/SESTA fusion. On its website, EFF called the House vote “an unprecedented push toward Internet censorship,” one that “does nothing to fight sex traffickers.” The foundation held out hope that the two-headed snake could be neutralized in the Senate.
Techdirt founder and CEO Mike Masnick wrote in a Tuesday blog post that given the faults detailed by the DOJ, the House should have delayed its vote. “[B]ringing the [Walters] amendment to the floor without having it go through the House Judiciary Committee (as is supposed to happen), seemed to be the House’s way of washing its hands of the bill, and tossing the issue back to the Senate,” Masnick wrote.
Masnick called the result “the perfect encapsulation of a broken Congress” and slammed the legislators for taking action “for the grandstanding feature alone.”
Front Page Confidential spoke with Kimberly Mehlman-Orozco, a professor in criminology at George Mason University and author of Hidden in Plain Sight: America’s Slaves of the New Millennium. Mehlman-Orozco, who serves as an expert witness in both criminal and civil cases, says the effects of the legislation the House passed will be deleterious if it becomes law.
“You’re going to have businesses, innocent businesses, that are going to be held liable for the actions of third parties,”Mehlman-Orozco explained. “You are going to see a displacement and a dispersion of these erotic advertisements, except instead of being on one open-access website, it’s going to be displaced to other websites that may not be cooperative with law enforcement, and dispersed to multiple websites.”
Mehlman-Orozco said law-enforcement agencies could easily be locked out of sites involved in sex trafficking — such as sites that are password protected, or private online groups on social-media platforms that may require referral from a peer.
“If this bill passes, you have international websites that are waiting in the wings to absorb this traffic,” she said. “And they have publicly stated that they will not be cooperative with law enforcement.”
Mehlman-Orozco said there is “absolutely not an iota of theoretical or empirical evidence” to back up politicians’ claims that the new legislation will be effective.
“They don’t care if it works,” she said, referring to the members of Congress who voted in favor of the bill. “It looks good on paper.”
Politicians never want to seem soft on crime, even if the bill in question is worthless, she added.
“Who’s ‘for’ modern-day slavery?” Mehlman-Orozco asked rhetorically. “No one.”