Congress Passes the Allow States and Victims to Fight Online Sex Trafficking Act of 2017

By: Jeffrey Hamlin

As of March 21, 2018, both chambers of Congress have approved H.R. 1865—the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA). In a rare show of bipartisanship, both Houses approved the bill with veto-proof majorities—the House by a vote of 388 to 25 and the Senate by a vote of 97 to 2. But some free-speech advocates, internet-law experts, and technology companies oppose the legislation, which exposes interactive computer service providers to criminal and civil liability when users post content that promotes an illegal prostitution or sex-trafficking enterprise.

The arguments for and against FOSTA are best understood in the context of another law enacted more than two decades ago. In 1996, Congress passed the Communications Decency Act (CDA) to (i) remove disincentives for the development and use of technologies that block and filter objectionable web content and (ii) promote the continued development of the internet and interactive computer services. To that end, the current CDA states that no provider or user of an interactive computer service can be treated as a publisher or speaker with respect to third-party content posted to its platform. The CDA also precludes state-law actions that are inconsistent with CDA protections. The upshot is that, under current law, web platforms like Craigslist, eBay, and Twitter cannot be held criminally or civilly liable for certain content posted by their users.

As the internet expanded, so did the proliferation of sites that promote illegal prostitution and sex trafficking, including trafficking of minors. Bad-actor websites escaped liability despite a raft of civil litigation. For example, in 2014, three underage girls sued Backpage.com under the Trafficking Victims Protection Reauthorization Act. The complaint, filed in the U.S. District of Massachusetts, alleged that the site was designed to assist in the crafting, placement and promotion of ads that offered the girls for sale. Relying on the CDA, the district court dismissed the suit on grounds that Backpage could not be held liable as a publisher of third-party content. A subsequent Senate investigation found that Backpage knew the site was being used to facilitate prostitution and child sex trafficking, engaged in content creation, and actively concealed illegal activity in order to profit off of the ads. But, absent a change to the CDA, Backpage could not be held liable.

FOSTA purports to remedy the problem in two ways. First, it amends chapter 117 of title 18 of the U.S. Code. The added provision (to be codified at 18 U.S.C. § 2421A) criminalizes the attempted or actual use of “a facility or means of interstate or foreign commerce” (i.e., a web platform) with the intention of promoting or facilitating illegal prostitution. Second, FOSTA amends CDA § 4, 47 U.S.C. § 230(e), by removing the impediment to state-law criminal prosecutions for conduct that would amount to a violation of 18 U.S.C. § 2421A or 18 U.S.C. § 1591(a), a federal law that prohibits sex trafficking of children. FOSTA also removes the impediment to civil actions against interactive computer service providers for third-party content that promotes or facilitates illegal prostitution and sex trafficking.

Proponents argue that FOSTA will promote vigorous enforcement against bad-actor websites and give sex-trafficking victims greater tools for obtaining restitution and civil damages against web platforms that profit off of criminal activity. But opponents like the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) argue that the new legislation will chill lawful internet speech, encourage websites to impose overly restrictive terms of service, discourage new web platforms from entering the market, drive bad actors underground, and endanger sex workers. They also argue that FOSTA is unconstitutionally vague insofar as it proscribes activity that “promotes or facilitates” illegal prostitution or sex trafficking. “Facilitate” generally means to make something easier or less difficult. Construed broadly, the new legislation could be read to target web content that has even the most tenuous connection to illegal sex trafficking.

If enacted, FOSTA will likely be challenged as unconstitutional. Indeed, the law may run afoul of the First Amendment because, technically speaking, it proscribes all content that promotes or facilitates prostitution, regardless of whether such prostitution is legal under state law. The law provides an affirmative defense for activity that is legal in certain jurisdictions, but that provision does not cancel out the general proscription, which is over-inclusive. Moreover, courts may well find that the legislation is so broad it does not give fair warning of what conduct is and is not prohibited. In that case, courts will either attempt to salvage the law by construing it in the narrowest terms or send it back to Congress for a rewrite.