The Intersections of FOSTA with CDA and DMCA

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This article was originally published in the May 2019 issue of XBiz World Magazine and online.

Laws in the U.S. that are known in short by the acronyms, FOSTA, CDA, and DMCA each relate to online content and services.  The CDA and DMCA have been around since 1996 and 1998, respectively.  The “new kid on the block,” or more accurately, the new bully on the block, is FOSTA, passed in 2018.  The applications of these laws are different, yet interconnected, as they intersect in various possible scenarios with FOSTA showing no mercy.

Section 230 of the CDA, “Communications Decency Act,” has allowed the Internet to flourish as a place of open communication by relinquishing website providers of certain liabilities for illegal activities of users on their sites.  Section 230 says, in summary, that a provider of an “interactive computer service” is not to be treated as the publisher or speaker of information shared on the service by a third-party user. So, if a user of a site posts or transmits information that is furthering an illegal activity, the site provider is not liable for that, with some exceptions including copyright infringement.

The DMCA, “Digital Millennium Copyright Act,” fills in the gap for copyright infringement liability left by Section 230 of the CDA.  The DMCA includes “safe harbor” provisions that if a website “service provider” follows, will relinquish the provider of liability for copyright infringement committed by third party users on the provider’s website.  These provisions state, in short, that in response to a user complaint requesting a take-down of their copyrighted content (which was uploaded by a third party), if the website service provider timely removes the content, the website service provider will not be liable for the copyright infringement.

FOSTA, the “Allow States and Victims to Fight Online Sex Trafficking Act,” created a new gap, or more accurately, a gaping hole, in the protection afforded by Section 230 of the CDA.  According to the new law, a provider of an “interactive computer service”- that with the intent to promote or facilitate the prostitution or sex trafficking of another person, or that acted with reckless disregard to such on their site – can be subject to civil or criminal liability.  Violations may result in the imposition of fines and jail time of up to 25 years.  Unlike the DMCA, there is no safe harbor written into the law.

An “interactive computer service” for purposes of CDA and FOSTA, or “service provider” for purposes of DMCA, can be any website which allows the posting or transmission of user-generated content.  Examples include clip sites, live cam sites, tube sites, dating sites, escort advertising services, and web forums, as well as mainstream websites, such as social networking sites.

Previously, the CDA (specifically, Section 230) and the DMCA enabled communication on websites without requiring “big-brother” censorship of users by website providers.  The practical effect of FOSTA, though, is that providers of websites that allow users to post or communicate with one another now have to monitor and censor that content for possible prostitution and sex trafficking.

Let’s take a look at some example hypothetical, yet certainly plausible, scenarios.

In a first hypothetical scenario, Website provider 1 operates an escort advertising service.  Person A grabs an image of a flower from an online search result, and superimposes text onto it saying, “BJ’s with me for $50, and sex for $100/hr. Call now: (XXX) XXX-XXXX.”  The copyright to the image is owned by Person B.  Person A posts the image to her feed on Website provider 1’s site without Person B’s permission.  Website provider 1 has staff that manually monitors activity on the site only for obscenity, and allowed the image upload.

In this first scenario, there are at least two issues – Potential copyright infringement, and potential promotion of prostitution in violation of FOSTA.  Person B is angry that his image has been stolen and files a DMCA notice (requesting take-down of the image) with Website provider 1.  Here, Website provider 1 can escape liability for copyright infringement via the DMCA if it follows the proper procedures for removal.  Such removal does not absolve Website provider 1 of liability under FOSTA, however, since FOSTA does not include a safe harbor.  It could be argued in court that, by manually allowing the posting of the image, Website provider 1 intended to promote prostitution, and therefore, would be subject to penalties.

In a second hypothetical scenario, Website provider 2 operates a clip site.  Person C uploads a video to the site.  Person C writes in a comment below the video, “Hot girls like these for sale by the hour – Great sex, discreet and inexpensive.  Call now (XXX) XXX-XXXX”.  Person D sees the video and realizes that it is actually her video, and that Person C pirated it.  Website provider 2 does not monitor activity on the site, except to address user complaints.

In this second scenario, there are at least two issues – Potential copyright infringement, and potential facilitation of sex trafficking in violation of FOSTA.  Person D files a DMCA take-down request with Website provider 2, and Website provider 2 removes the video according to DMCA guidelines.  Accordingly, Website provider 2 can be relinquished from liability for copyright infringement… but may still be liable for a violation of FOSTA for facilitating sex trafficking.  In court, it could be argued that the provider acted in reckless disregard of sex trafficking on its site by choosing not to monitor for such activity, and therefore, would be subject to penalties.

In a third hypnotical scenario, Website provider 3 operates an online group chatroom application.  Person E initiates a chatroom titled, “Criminals and Thieves” and uploads a cover image that includes a false statement, “My wife, Jane Doe, embezzled millions from my business.”  In the chatroom, Person F types, “Person E, I’m so sorry to hear about your wife’s scam.  You want to get her back?  I’ll sleep with you for $100.”  Person E responds, “Yes, that sounds great.  I’ll meet you at XYZ hotel in a half hour.”  Website provider 3 uses automated text filtering software to monitor for things like criminal activity and obscenity on the site.

In this third scenario, there are at least two issues — potential defamation and potential facilitation of prostitution in violation of FOSTA. Website Provider 3 eventually finds the image, which managed to evade the text filters, via a user complaint. Website Provider 3 takes down the image immediately. Under Section 230 of the CDA, the provider can escape liability for a claim of defamation by Jane Doe (though Person E is still on the hook, as Section 230 is not applicable to the offending user). When investigating the complaint, Website Provider 3 sees the chat between Persons E and F, and also disables their user accounts.

Note that, in such a scenario, although the disabling of accounts will serve as evidence of efforts to remedy the situation, FOSTA’s lack of safe harbor provisions means that those efforts may still not absolve Website Provider 3 of liability under FOSTA. In addition, the use of the filtering software will serve as evidence of good faith effort to prevent that kind of situation, but failure of the software is not a basis for not being liable under FOSTA.

The actual edges and boundaries of FOSTA, and the extent to which it will be applied, are still to be determined in the court system. Unlike the safe harbor provisions of the CDA and DMCA, the “black letter law” of FOSTA is unforgiving, so website providers beware, even if you’re already compliant elsewhere.

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