This article was originally published in Sex Tech Space, Issue 4 at www.SexTechSpace.com.
On April 11, 2018, the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” was signed into U.S. law by President Donald Trump. In the text of the law, known in short by the acronym “FOSTA,” the stated purpose is to provide federal and state authorities with more tools to fight “sexual exploitation of children or sex trafficking.” Though stopping sexual exploitation is certainly an honorable cause, FOSTA has actually created big problems for legitimate websites, while in reality, also increasing the difficulty of finding and prosecuting human trafficking.
Let’s start with a little background. Section 230 of “The Communications Decency Act of 1996” [U.S.] has allowed the Internet to thrive as a place of open speech and communication by relinquishing website providers of certain liabilities for illegal activities of users on their sites. That law says that a provider of an interactive computer service is NOT to be treated as the publisher or speaker of information provided on the service by a third-party user. So, under Section 230, if a user of a site posts or transmits information that is furthering an illegal activity, the site provider is not liable for that. In my opinion, this makes sense as a site provider is merely a passive conduit, like a phone service provider, rather than an active participant.
However, fast-forward about 20 years, and a dent… Well, actually, a giant gaping hole, has been put into that protection. In the text of FOSTA, it says that “section 230 … was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.”
The new law rolls back the protections of Section 230 for content that promotes or facilitates prostitution or human trafficking. FOSTA states, in pertinent part, “Whoever… owns, manages, or operates an interactive computer service …, or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.” An “aggravated” violation is committed, when in addition, an interactive computer service –
(1) promotes or facilitates the prostitution of 5 or more persons, or
(2) acts in reckless disregard of the fact that such conduct contributed to sex trafficking.
An aggravated violation is punishable by a fine or prison sentence of up to 25 years.
In short, an operator, owner, or manager of an interactive computer service, that with the intent to promote or facilitate the prostitution of another person, or should have known of such on their site, can be subject to civil or criminal liability under the law. Violations may result in the imposition of fines and jail time of up to 25 years. For the purposes of FOSTA, an “interactive computer service” can be any website which allows the posting or transmission of user-generated content. Examples include porn sites, live cam sites, tube sites, dating sites, escort ad services, web forums, as well as mainstream websites, such as social media sites.
Accordingly, the practical effect of FOSTA is that providers of websites that allow users to post or communicate with one another now have to review and censor user communications and posts for possible prostitution or human trafficking. This is especially true for websites directed to adult themes since the adult industry has always been a target of the government. Government has routinely tried to interfere with the adult industry’s ability to do business whether it be in “obscenity” prosecutions, in declaring porn a public health crisis (over 20 states have done or attempted to do this), in zoning of sex toy shops out of municipalities, or by allowing warrantless raids of porn production studios (via a law known in the biz, in short as, as “Section 2257”), among many other examples.
In order to comply with the provisions of FOSTA, at a minimum, companies should update the Terms of Service for their websites to include a user agreement prohibiting the sale of sex, setting up dates in exchange for money, and other activities that could potentially be interpreted as sex trafficking.
In addition to that update, website providers must now monitor the postings of private messages of users on their sites. Yes, you read that right – even private messages. Automated software monitoring systems will be ideal for filtering text-based communications. Image analysis software may be used for discerning the content of images and video.
For large-scale companies that already have traction (i.e. money to spend), the answer is likely a tailored software solution integrated into their platform. For other smaller websites, a third party provided “canned” system may be more reasonable in terms of pricing and feasibility.
Human assessment will likely need to be involved as well – For example, to review for confirmation of filter-flagged material prior to a disabling of an account or removal of a communication. Though neither automated systems, nor humans, will be perfect, it will at least show a good faith effort and serve as significant evidence in negating “reckless disregard” (basically, “should have known”) and “intent” to allow illegal activity on a website.
Companies should develop and implement an internal cohesive written policy about how to monitor and process communications that could be related to facilitation or promotion of sex trafficking or human trafficking. The policy should address the levels of escalation, including warnings (if any), disabling of accounts, and removal of communications or accounts of users that appear, through filtering or otherwise, to be promoting or facilitating such illegal activity.
Note that FOSTA’s effect is retroactive. Companies may be subject to liability for illegal prostitution or sex trafficking activity that happened through their websites prior to the passage of the new law. Whether enforcement for prior activities will actually occur has yet to be seen, but beware of the possibility.
Accordingly, the stakes are high. Website providers must be conscientious in efforts to comply with the new law. Even if a website is hosted outside of the U.S. (for example, in Europe), but is accessible to users in the U.S., FOSTA may still apply. Though obtaining jurisdiction in U.S. courts would be much tougher for sites outside of the country, in some circumstances, it would not be impossible. The U.S. government and courts have broad powers.
This law change is historic in the United States. Although many of us in the legal community take serious issue with FOSTA’s legality under the U.S. Constitution, it typically takes years for a law to work its way through the court system in a challenge. Luckily, the fight has already begun. In June of 2018, Woodhull Freedom Foundation, Human Rights Watch, and other plaintiffs brought suit to challenge the law in the U.S. District Court for the District of Columbia. The case was initially dismissed in September based on a formality (rather than on the merits), and is now being appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
That appeal is much needed for the adult industry, as well as for victims of human trafficking. A very sad outcome of FOSTA is that its effect is truly the antithesis of what it was supposedly was set out to do. Evidence of human trafficking, which previously could have sometimes been obtained from offenders’ online actions, is no longer available since trafficking operations have moved offline and “underground.” Now, instead of being able to trace IP addresses and electronic message strings, members of law enforcement have to go into the trenches, which is slower, more difficult, more dangerous, and much less efficient.
In addition, without being able to communicate online, willing sex workers (prostitutes) have now had to go back to pimps who, it is no secret, are abusive and steal the fruit of their labor. Operating in cyberspace allowed sex workers to instead manage their own businesses, screen clients for themselves, and reap the financial benefits of the work they’d chosen to do.
Keep your fingers crossed that the challenge of FOSTA is eventually successful… for the sake of free speech, the adult industry, sex workers, and human trafficking victims. I’ll be watching, and so should you. Even if you work outside of Sex Tech and the adult industry, this law has sweeping ramifications that could affect your life and probably already has, though you might not have realized it at the time.