‘Unconstitutional’ Frankenstein FOSTA Bill Lumbers Toward Senate Passage

grainy black-and-white image of "Dr. Frankenstein and His Creature," an exhibit at Movieland Wax Museum in Niagara Falls, Canada
U.S. Sen. Mitch McConnell (right) readies FOSTA (reclining, left) for passage ( Diego Torres Silvestre via Flickr)
U.S. Senate Majority Leader Mitch McConnell has moved the Frankenstein FOSTA bill one giant jackbooted step closer to becoming law

The Fight Online Sex Trafficking Act (FOSTA), which detractors have dubbed the “Frankenstein bill,” just lurched one step closer to passage by the U.S. Senate. On Wednesday, Republican Senate Majority Leader Mitch McConnell moved to limit debate on the controversial anti-sex-trafficking measure, signaling that a vote is close at hand.

McConnell’s so-called cloture motion must gain the support of three-fifths of the U.S. Senate (normally 60 votes) in order to move the bill along. But at the moment, FOSTA seems unstoppable, despite growing opposition online and an advisory from the U.S. Department of Justice that the legislation is unconstitutional and could it more difficult to prosecute “bad actor” websites.

On February 27 the House overwhelmingly approved FOSTA after tacking on an amendment that added wording from the Stop Enabling Sex Traffickers Act, FOSTA’s companion legislation in the Senate, which had been idling in the upper chamber after it passed out of the Commerce, Science, and Transportation Committee on November 8 of last year.

FOSTA seeks to derail Section 230 of the 1996 Communication Decency Act, which grants immunity to the operators of interactive online platforms for content posted by users. It would carve out exceptions for online ads linked to sex trafficking, as well as ones that pitch prostitution among consenting adults. (Though you might not know it to listen to activists and elected officials, there is a significant difference between the two: Under federal law, “sex trafficking” is defined as involving minors in commercial sex, or inducing adults into sex work via force, fraud, or coercion. Prostitution, meanwhile, is, well, this. Or this.)

The legislation effectively eliminates a “safe harbor” provision of Section 230 that allows website administrators to police content without fear that doing so might be used against them in court (if they miss something, for instance). It creates severe criminal penalties for operating or attempting to operate a business with the intent of promoting or facilitating prostitution. And it authorizes state and local prosecutors to enforce state civil and criminal laws that parallel the new federal statute.

As a result, the FOSTA-SESTA Frankenstein monster has sent shivers down the spines of free-speech advocates, sex workers, small-business owners, and internet companies that lack the resources of tech giants such as Twitter, Facebook, and YouTube to deal with the legal and manpower expenses the new law would necessitate. Moreover, many anti-trafficking activists and academics observe that by pushing adult ads underground, the new law would make it less likely that law enforcement agencies would be able to identify and locate victims of sex trafficking.

Even the U.S. Department of Justice sounded the alarm. In a letter to Republican Congressman Bob Goodlatte just before the February 27 vote, Assistant U.S. Attorney General Stephen E. Boyd warned that a retroactivity provision in FOSTA violates the U.S. Constitution’s prohibition on ex post facto laws, because the bill would “impose a punishment for an act which was not punishable at the time it was committed.”

Boyd’s letter cautioned that the bill’s proposed language regarding prostitution is so broad that it could extend to areas with “minimal federal interest,” such as “instances in which an individual person uses a cell phone to manage local commercial sex transactions involving consenting adults.”

The DOJ also objected to the way in which the bill defines “participation in a venture [involving sex trafficking]” as “knowingly assisting, supporting, or facilitating” — pointing out that the vague language was unnecessary and might hinder prosecutions. Current law, Boyd wrote, “already sets an appropriately high burden of proof, particularly in cases involving advertising.”

Why don’t the DOJ’s worries carry more weight with Congress, particularly since the Justice Department will carry most of the burden of enforcing the would-be law?

India McKinney, a legislative analyst with the Electronic Frontier Foundation, a nonprofit that fights for civil liberties in cyberspace, told Front Page Confidential that she believes it’s a matter of too little, too late.

“The DOJ’s letter came out about an hour before the final vote [on FOSTA] in the House, which really wasn’t enough time for it to make the kind of impact that you would normally expect a letter like that to make,” McKinney said. “I don’t know why the DOJ didn’t submit their input back in the fall, but here we are.”

See Also:
“‘Frankenstein’ Sex-Trafficking Bill Moves Forward in U.S. Congress”
“FOSTA/SESTA ‘Frankenstein Bill’ Heads to House Floor”
“Despite Justice Department Warning, House Passes ‘Unconstitutional’ Sex Trafficking Bill”

Theoretically, the Senate could still amend FOSTA to address the DOJ’s objections. But doing so would mean sending the bill back to the House for another vote, which McKinney says the Senate apparently does not want to do.

Voting on FOSTA with no changes means the bill, if passed, will be “ready for the president’s signature,” said McKinney. And because “everybody who is trying to pass this bill has coalesced around the FOSTA bill,” a vote in favor of it comprises the path of least resistance.

Sen. Ron Wyden, who helped author Section 230 two decades ago, has steadfastly resisted attempts to nullify or water down one of his major achievements in office. But earlier this week, Wyden appeared to change his tune, telling reporters that the tech industry can look forward to additional FOSTA-like regulations if Silicon Valley doesn’t step up.

“Section 230 gave the companies very significant opportunities to police their platforms,” Wyden said. “If they don’t do it, [FOSTA] won’t be the only bill.”

Added the Oregon Democrat: “The idea that somehow these companies have these neutral pipes is not a view I share,” saying the industry, “blew it on the 2016 election,” a reference to the Russian use of social media platforms to affect the presidential contest.

Perhaps in a nod to inevitability, Wyden also told reporters that he had not placed a legislative “hold” on FOSTA — a reference to a parliamentary maneuver that prevents the Senate from approving the bill by unanimous consent — a trick he pulled off with SESTA back in November.

When Front Page Confidential reached out to the senator’s office to inquire about the recent comments, spokesman Keith Chu replied via email that the senator had “made this point before.” Chu attached a passage from a November 1, 2017, transcript of a U.S. Senate Select Committee on Intelligence hearing regarding Russian meddling in the 2016, during which Wyden pointedly questioned the general counsels for Google, Twitter, and Facebook, then admonished them to “stop paying lip service to shutting down bad actors” on their platforms.

Though there seems to be nothing but smooth sailing ahead for FOSTA in its current form, McKinney has been encouraged by recent mainstream news stories and opinion pieces that find fault with the bill, particularly in Slate and the Wall Street Journal [subscription required].

Additionally, there has been a wellspring of online activism committed to killing the bill. Hashtags such as  #LetUsSurvive and #SurvivorsAgainstSESTA have taken hold, and sex workers, former sex workers, sex-trafficking victims, and their supporters have taken to Twitter and other outlets to tell their stories and warn that the lives of trafficking victims and sex workers are at stake.

“There are a lot of non-tech voices that are really important in how to protect victims of sex trafficking and how to bring traffickers to justice,” McKinney observed.

Particularly influential has been an essay in Allure magazine by Alana Massey. In the piece, Massey, a writer and former sex worker, eviscerates a pro-SESTA public-service announcement wherein celebrities including Seth Meyers and Amy Schumer express woefully uninformed views on the topic.

“The final call of the PSA is #ListenToSurvivors, which is an interesting choice considering that no known survivors spoke in the PSA,” Massey dryly observes at one point. “The creators probably didn’t think they knew any, and certainly not any famous ones.”

Will voices like Massey’s sway self-serving senators who seem hell-bent on passing FOSTA, regardless of how much harm it will do to the internet and those it purports to help?

A cynic might argue it’s unlikely. But for McKinney, it ain’t over till our porcine POTUS affixes his autograph.

“Until the president’s signature is on a bill, there is always hope,” McKinney said.

The Senate has adjourned until Monday, March 19. Votes on McConnell’s cloture motion and the underlying bill should take place during the week.

About Stephen Lemons

Stephen Lemons is an award-winning investigative journalist with more than 20 years of experience covering everything from government corruption to white-supremacist gangs. In addition to Front Page Confidential, his work has appeared in Phoenix New Times, the Los Angeles Times, Salon.com, and the Southern Poverty Law Center’s Intelligence Report magazine.

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