‘Unconstitutional’ Anti-Sex-Trafficking Bill Breezes Through U.S. Senate En Route to White House

Photoshopped image depicting U.S. Senator Ron Wyden in a dirtpile in front of a bulldozer being driven by Frankenstein. (Really.)
Artist conception: Oregon Senator Ron Wyden didn't stand a chance agains the FOSTA Frankenstein bulldozer (bulldozer: U.S. Air Force photo/Staff Sgt. Andrew Satran; Wyden: U.S. Department of the Interior via Flickr; Frankenstein: Boris Karloff)
Oregon senator Ron Wyden tried in vain to fix FOSTA, the anti-sex-trafficking bill that will do nothing to combat sex trafficking but might kill internet freedom

U.S. Sen. Ron Wyden pretty much threw himself in front of the proposed Fight Online Sex Trafficking Act (FOSTA) on Wednesday, offering a lonely but impassioned speech on the Senate floor in opposition to the legislation, which seeks to make online adult ads illegal in the United States.

Wyden’s resistance was valiant but futile. The ineptly crafted “Frankenstein bill,” as detractors refer to it, flung aside the Oregon Democrat like a rag doll on its way to approval by the Senate. It now heads to the White House for the signature of La Grande Orange.

Final tally: 97 to 2, with only Wyden and Republican senator Rand Paul of Kentucky voting against it.

Prior to the vote, senators roundly rejected a Wyden-sponsored amendment to allocate $20 million that, unlike the bill, might actually have contributed to the fight against sex trafficking.

When that measure went down to defeat, Wyden withdrew a second amendment, which would have allowed owners and operators of websites and social-media platforms to police their sites for questionable content without fear that doing so might be used against them in court.

FOSTA proponents opposed both amendments because altering the bill would mean returning the legislation to the House — which had passed the measure by a margin of 388 to 25 in late February — for another go-round.

Wyden warned that the Senate would come to “deeply regret” passing FOSTA unamended. The law, he said, will have a “chilling” effect on speech and online innovation, forcing otherwise law-abiding interactive services to spend money on attorneys and perhaps cease moderating content altogether.

“If companies decide, as a result of a poorly written bill, that their only safe option is to put their blinders on and ignore vile, illicit content, that’s bad for everybody except the criminals,” Wyden asserted, adding, “I want companies to know without a doubt that they have the right to moderate the content users post.”

Wyden challenged the underlying assumption of the bill: that by forcing websites to eliminate all communications that might appear to advertise prostitution, sex trafficking will vanish. Wyden argued — as do many anti-trafficking advocates and sex workers — that FOSTA will push those ads underground, making it less likely that actual trafficking victims are rescued and real-life traffickers are punished.

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“Colleagues, the bill before the Senate is focused on taking down online advertisements, not on catching criminals or protecting victims,” Wyden said. “Taking down ads doesn’t mean the pimps and predators start following the rules. When the ads come down, the criminals go to darker corners of society. Instead of stopping trafficking, this bill will push it to the dark alleys, the dark web, and overseas.”

The senator was not without a dog in the fight. In 1996, Wyden’s freshman year in the Senate, he co-wrote Section 230 of the Communications Decency Act, a crucial piece of legislation that generally grants immunity to interactive websites and platforms for content posted by users.

Considered the internet’s “fairy godmother,” Section 230 has allowed the global computer network to thrive and shielded start-ups from onerous legal costs and capricious state statutes. Contrary to what one of FOSTA’s primary pushers — Ohio Senator Rob Portman — said in the run-up to Wednesday’s vote, the law doesn’t exempt anyone from federal criminal statutes.

Section 230 was the conduit through which the First Amendment applied to the internet, Wyden explained. In doing so, it permitted online commerce to thrive, creating “$1 trillion of economic value in the private economy” and making the United States the envy of other countries that imposed more stringent regulations on online content.

FOSTA will be the beginning of the end of all that.

If the bill becomes law, it will blast a Grand Canyon-size rift in Section 230, creating new criminal penalties for anyone who operates an interactive service with the “intent to promote or facilitate” consensual, adult prostitution — up to 10 years in prison for enabling the prostitution of one person, 25 years if five or more people are involved.

FOSTA would also make websites criminally liable for “knowingly assisting, supporting, or facilitating” sex trafficking (a term that federal law defines any commercial sex that involves minors, or adults who are induced via force, fraud, or coercion. It allows for state and local prosecutions and civil suits to proceed. And it includes a retroactivity provision that would permit prosecutors to press charges for offenses that occurred prior to FOSTA becoming law.

That retroactivity provision is one reason the U.S. Department of Justice refused to endorse the bill in its current form. In a letter to Bob Goodlatte, the Republican chairman of the House Judiciary Committee, ,Assistant Attorney General Stephen E. Boyd stated that the provision violates the Constitution’s prohibition on ex post facto laws.

“That’s another issue the Congress ought to address before sending it to the president’s desk,” Wyden said. “But instead, it just looks like everybody says, ‘We’ll drive it through as-is.'”

Boyd’s letter also predicted that paradoxically, FOSTA would effectively create “additional elements that prosecutors must prove at trial.”

Not only would the new law put the fear of the federal government into honest website owners, Wyden observed, but it would “raise the burden of proof in cases against sex traffickers.”

FOSTA supporters were unmoved by rational arguments. In pushing their agenda, they relied on faulty statistics and emotional appeals.

Sen. Richard Blumenthal, a Connecticut Democrat who was one of the original sponsors of the Senate version of the bill (the Stop Enabling Sex Traffickers Act, a.k.a. SESTA) asserted that “every major law-enforcement group” backed FOSTA — conveniently overlooking the DOJ’s unwillingness to support it.

Blumenthal did his best to incite a sense of panic, claiming that the National Center for Missing and Exploited Children (NCMC) has reported “an 840 percent increase in suspected child sex trafficking from 2010 to 2015.”

Note the careful use of the word “suspected.” Contrary to what Blumenthal and others would have people believe, there is little or no evidence that human trafficking — a term that includes but is not limited to sex trafficking — is at a crisis level in the U.S., a canard Reason.com associate editor Elizabeth Nolan Brown has hammered home again and again in her tireless reporting on the subject.

Much of the Senate’s mania for passing FOSTA is motivated by a desire to see the online listings giant Backpage.com prosecuted, despite the fact that Backpage shuttered its adult-services section in January 2017 as the Senate was conducting hearings regarding its business practices — much as Backpage competitor Craigslist closed its own adult-services section under federal pressure in 2010. (Backpage’s critics claim that illegal activity has migrated to other parts of the site.)

But federal and state courts nationwide have largely concluded that Backpage has operated lawfully and within industry standards, to the chagrin of many politicians, for whom the website is a popular piñata. (Disclosure: The owners of this website co-founded Backpage in the early 2000s; they sold it in 2015.)

In her remarks in support of the bill, for instance, Sen. Claire McCaskill of Missouri expressed her wish that the Justice Department and “all the prosecutors in the country” go after anyone who “knowingly facilitates sex trafficking online.” She made clear that she felt Backpage fit the bill.

Professor Eric Goldman of the Santa Clara University School of Law seems less certain that FOSTA will deliver a pound of Backpage flesh to the Senate’s door. Goldman, whose Technology and Marketing Law Blog is a tech-industry lodestone — has testified before Congress on Section 230 and the attempts to undermine it. He told Front Page Confidential that FOSTA’s impact remains uncertain.

“If Congress expects the DOJ to announce a prosecution the day after the bill is effective, I think they’re going to be sorely disappointed,” Goldman said.

“For that matter, I’m not sure which of the private plaintiffs are going to take advantage of it,” Goldman added. “There are already a number of pending lawsuits against Backpage. I don’t know who else apart from the plaintiffs is planning to sue.”

Goldman maintains that a number of aspects of the bill could be the subject of constitutional challenges. He pointed out that Alex Levy, a professor at the University of Notre Dame Law School who also contributes to Front Page Confidential, addressed some of these issues in guest pieces for his blog. The most recent asserts that FOSTA’s anti-prostitution provisions violate the First Amendment. Another discusses problems with FOSTA’s retroactivity provision.

But Goldman noted that because Congress created Section 230 as an extension of the First Amendment, Congress can also “dial back” 230 if it wants to — as long as doing so doesn’t roll back First Amendment protections.

On another note, Goldman praised Wyden’s opposition to FOSTA and the Oregon senator’s attempts to ameliorate it.

“Not only did he go it alone in many respects, but he went it alone on a topic that’s so sensitive and heart-wrenching, in the face of substantial criticism of him for his efforts,” Goldman said.

Reaction to FOSTA’s passage fell along predictable lines, with supporters such as Arizona Sen. John McCain and First Daughter Ivanka Trump hailing the news and FOSTA opponents expressing anger and angst.

The Electronic Frontier Foundation (EFF), a nonprofit that fights for civil liberties online, issued a statement on its website calling it a “dark day for the internet,” while Techdirt editor Mike Masnick tweeted that it was “depressing” to think of how much damage the new law would do.

Also on Twitter, Reason‘s Nolan Brown offered a sarcastic imaginary dialogue between senators and the citizens they ostensibly represent.

And a few hours before the vote, New York City-based Dia Dynasty, a self-described Asian dominatrix, Alpha Witch, and Female Supremacist, offered a fuck-you tweet to the world’s most exclusive club:

“We may work in the shadows,” she wrote, “but we are never going away so you better deal with us.”

Watch Sen. Wyden’s remarks on Section 230 and FOSTA below:

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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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