The U.S. House is poised to fuse FOSTA and SESTA into an anti-internet behemoth that would rip the beating heart right out of the Communications Decency Act's Section 230
UPDATE: As anticipated, on Monday, February 26, the U.S. House Rules Committee sent FOSTA 2.0 and a SESTA-like amendment from Rep. Mimi Walters to the House floor for debate and a vote on Tuesday. This FOSTA/SESTA “Frankenstein bill” passed on a voice vote. The committee only heard advocates of the bill as witnesses, and none of the committee members asked skeptical questions. The Electronic Frontier Foundation (EFF) is urging people to phone their representatives to ask them to vote no on the measure.
Original story below:
The U.S. House of Representatives seems ready to throw the switch and bring to life a monstrous hybrid of two reactionary bills — the Senate’s Stop Enabling Sex Traffickers Act (SESTA) and the House’s own Fight Online Sex Trafficking Act (FOSTA) — which, if enacted, will subvert a federal law that for the past two decades has allowed the internet to thrive.
The House Rules Committee has scheduled a hearing for this “Frankenstein bill,” as some are calling it, on Monday, February 26, at 5 p.m. If the committee approves it, the next stop will be the House floor, for debate and a vote. With 174 co-sponsors, FOSTA is anticipated to pass in some form, with or without the SESTA language, which is being appended in the form of an amendment.
Critics warn that this latest development will do nothing to impede sex trafficking and will cause a chilling effect on the tech industry, burdening smaller companies and start-ups with legal and other costs to keep in compliance and leaving larger tech companies with an unfair advantage.
India McKinney, a legislative analyst with the Electronic Frontier Foundation, a San Francisco nonprofit committed to defending civil liberties on the internet, regards this impending amalgamation of the worst of all possible worlds to be disastrous.
“This bill opens up liability at both the state and federal level, on both the criminal and civil front,” McKinney told Front Page Confidential. “That’s a big problem, and there are a lot of people opposed to this. Including us.”
On the other hand, the Internet Association, which represents the monoliths of the tech industry, including Facebook, Amazon, Google and Twitter, already has endorsed both FOSTA and SESTA. As a result, McKinney and her allies have their work cut out for them, if they hope to block the Frankenstein bill’s advance.
The legislative creature’s origins go back about a year, when supporters introduced SESTA in the Senate, and, later, FOSTA in the House, with the intent of undermining Section 230 of the Communications Decency Act of 1996, the watershed federal law that holds owners and operators of interactive computer services harmless for content that users upload to their sites or platforms.
Section 230 contains a so-called safe harbor provision, allowing internet companies to police their sites for illegal content without fear that doing so will be used against them in civil or criminal court. Known as the “fairy godmother of the internet,” Section 230 protects, say, Twitter from liability for Islamist terrorists who use its site, or Facebook from being sued for libelous content that users post to the social-media giant.
“This bill opens up liability at both the state and federal level, on both the criminal and civil front. That’s a big problem, and there are a lot of people opposed to this. Including us.” — India McKinney, Electronic Frontier Foundation
The authors of SESTA and FOSTA have made clear that their target is the online listings giant Backpage.com, which they accuse of facilitating sex trafficking via adult ads that users post on the website. But most federal and state courts have held that Section 230 protects Backpage from liability for the third-party content, and that the site’s practices are consistent with industry standards.
Moreover, in January of last year, Backpage shuttered its adult section amid a congressional inquiry, in much the same way its competitor, Craigslist.com, closed down its adult section in 2010, bowing to congressional pressure. And the mania to prosecute Backpage persists in spite of the passage in 2015 of the Stop Advertising Victims of Exploitation (SAVE) Act, which amended federal law to make it a crime to “knowingly” advertise sex trafficking.
Introduced in the Senate in August, SESTA would further broaden the language of the federal sex-trafficking statute, defining “participation in a venture” that involves sex trafficking as “knowingly assisting, supporting, or facilitating” sex trafficking.
SESTA also makes clear that Section 230 does not shield websites involved in sex trafficking from prosecution or civil liability. It permits state attorneys general to bring civil suits based on sex-trafficking violations, and it has an ex post facto provision that allows the law to apply retroactively — an element that Alexandra F. Levy, an attorney and an adjunct professor at the University of Notre Dame Law School who also contributes to Front Page Confidential, has suggested may be unconstitutional.
In the meantime, over on the Senate side, the Committee on Commerce, Science, and Transportation approved the current version of SESTA this past November. But Sen. Ron Wyden, an Oregon Democrat who co-wrote the CDA in 1996, placed a legislative hold on the bill. The hold remains in place, but SESTA now boasts 66 co-sponsors, which almost assures its passage when it does come up for a vote.
For the most part, tech-industry watchers regarded FOSTA, the House-crafted bill, to be a more draconian version of SESTA. But in December, FOSTA went before the U.S. House Judiciary Committee for a hearing, and committee chairman Bob Goodlatte, a Republican from Virginia, offered a sweeping amendment that the committee subsequently passed, rewriting FOSTA in its entirety.
Goodlatte’s FOSTA 2.0 offered a whole different set of problems. Instead of going after sex trafficking, it targeted all prostitution online, creating a maximum criminal penalty of 10 years in prison for an offense involving one person, and 25 years for an offense involving five or more people.
On the other hand, FOSTA 2.0 seemed to raise the bar on what attorneys refer to as mens rea or scienter — terms that apply to the knowledge of wrongdoing that is required for conviction. Goodlatte’s FOSTA stressed “intent” on the part of someone to operate (or attempt to operate) a business in order to “promote or facilitate” prostitution.
“FOSTA 2.0: Rep. Bob Goodlatte Rewrites House Sex Trafficking Bill to Target All Illegal Prostitution”
Technology law expert Eric Goldman, a professor at the Santa Clara University School of Law and author of the influential Technology & Marketing Law Blog, saw Goodlatte’s FOSTA as flawed but preferable to SESTA.
Then along came Rep. Mimi Walters, a California Republican. Last week Walters introduced an amendment to FOSTA that mimics much of SESTA’s language, including the “participation in a venture” definition, and the Orwellian retroactivity provision.
The House Rules Committee is expected to take up both the Walters’s amendment and FOSTA 2.0 on Monday.
The combination of FOSTA’s wide net and SESTA’s broad application of scienter has the tech community on edge.
Mike Masnick, founder, editor, and CEO of the snarky and informative internet news site Techdirt, observed that a site as apparently law abiding as his own could get snapped up by the yawning, indiscriminate jaws of a FOSTA-SESTA leviathan.
“I mean, even we get people trying to spam our comments all the time with what appear to be prostitution ads,” he wrote in a February 22 opinion piece. “We catch most of them, but what if a few get through and some law enforcement agency wants to make life difficult for us? Under FOSTA, that’s a real possibility. Such laws can be abused.”
Indeed, the retroactivity provision alone presents the frightening prospect of prosecutors applying new standards of criminality to past content that, when it was published, was legal.
“Privately, anti-trafficking legal professionals admit that SESTA is poorly crafted policy that hurts their efforts, but when I ask them for a quote, they politely decline because they fear adverse consequences for coming out against such a superficially popular piece of legislation.” — Kimberly Mehlman-Orozco, human-trafficking researcher
Why then is the Internet Association kowtowing to Congress over SESTA and FOSTA?
The EFF’s India McKinney believes the behemoth companies have the resources to consult attorneys and comply with the monitoring requirements. Not so for smaller fry and start-ups, however.
“Potential competitors to the internet giants, as well as users, don’t always have access to that legal infrastructure,” McKinney told FPC. “And the content of these bills incentivizes platforms to engage in content moderation through a mix of automatic filters and human censorship.”
Even worse, McKinney points out, the purported anti-trafficking legislation that will result promises absolutely nothing to stop sex trafficking. In fact, it likely will make it more difficult for law-enforcement agencies to root it out.
“We have heard from law enforcement and also some victims’-rights groups that seeing these ads on the internet means they know where the victims are: They know who needs help and where to find them,” McKinney noted.
McKinney is not alone in this view. Anti-trafficking advocate Kimberly Mehlman-Orozco, a professor of criminology at George Mason University and the author of the book Hidden in Plain Sight: America’s Slaves of the New Millennium, has written more than one internet op-ed in which she has faulted Congress for its shortsighted approach to the problem.
In a recent opinion piece for the website Homeland Security Today, Mehlman-Orozco argues that law-enforcement agencies use websites with adult ads as a tool to “rescue victims and arrest sex traffickers.” If the government puts U.S.-based websites with such ads out of business, she says, the ads will “displace to other websites, likely overseas,” that might not cooperate with subpoenas issued stateside.
Mehlman-Orozco says that many in law enforcement are quietly in agreement with her assessment but refrain from speaking out.
“Privately, anti-trafficking legal professionals admit that SESTA is poorly crafted policy that hurts their efforts,” she writes. “[B]ut when I ask them for a quote, they politely decline because they fear adverse consequences for coming out against such a superficially popular piece of legislation.”