Breaking Down FOSTA & Its Silencing Impact

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finger on her lips. silence gesture

UPDATE: FOSTA was signed into law by President Donald Trump on April 11, 2018.  This article was written prior to his signature.   The content is still very much applicable, as the text analyzed below is the text that is now law.  Check out my article that followed covering “what to do now” here.

There has been a massive public outcry in the last several weeks and months over the anti-sex-trafficking bills known as SESTA (Stop Enabling Sex Traffickers Act) and FOSTA (Fight Online Sex Trafficking Act).  In the news, there has been a lot of description of the provisions of the bills.  It’s important though to read and understand the precise language.  Here, I’ll go through the actual language of FOSTA, as passed, section by section (with only some minor language omitted), so as to analyze its meaning within an accurate context.

A FOSTA-SESTA package, referred to simply as FOSTA (and the “Bill” here), passed in the U.S. House of Representatives on February 27, 2018.  The package passed in the Senate on March 21, 2018.  The Bill was presented to the president on April 3, 2018, but as of today (April 6, 2018) has yet to be signed.  Accordingly, it is not law as of the current date, but will become law if the president signs it.

The language of the Bill begins with its purported purpose:

To amend the Communications Act of 1934 to clarify that section 230 of such Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking, and for other purposes.

Though stopping sexual exploitation is certainly a noble cause, it’s important to understand the significance of Section 230.  Section 230 of The Communications Decency Act relinquishes website operators of various forms of liability that could otherwise be imputed to them as a result of the actions of third party users on their sites.  In the United States, the First Amendment to the Constitution guarantees the right to free speech.  Section 230 made it so that Internet service providers could not be treated as speakers of content published by third parties, for purposes of establishing liability.  It has allowed the Internet to thrive as a place of open speech and communication without website operators fearing legal consequences to themselves based on the (sometimes illegal) activities of users of their sites.  In light of that, we’ll begin analysis of the sections of the Bill.

Section 1 states the “Short Title of the Law.”

This Act may be cited as the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017”.

This is the “easy” way to reference the law, rather than having to refer to it by it’s number: H.R.1865 — 115th Congress (2017-2018).

Section 2 is titled: “Sense of Congress.”  This is the background.

It is the sense of Congress that—

(1) section 230 of the Communications Act of 1934 (47 U.S.C. 230; commonly known as the “Communications Decency Act of 1996”) 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;

(2) websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion; and

(3) clarification of such section is warranted to ensure that such section does not provide such protection to such websites.

Here, Congress is saying that the Communications Decency Act was not meant to facilitate prostitution, and that clarification is warranted in light of websites that have been reckless with regard to the issue.

Section 3 is titled: “Promotion of prostitution and reckless disregard of sex trafficking.” This section begins the provisions of the law (if passed).  Chapter 117 of title 18, United States Code, is amended by inserting after section 2421 the following:

Ҥ 2421A.Promotion or facilitation of prostitution and reckless disregard of sex trafficking

“(a) In general.—Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), 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.

“(b) Aggravated violation.—Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person and—

“(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, in violation of 1591(a),

shall be fined under this title, imprisoned for not more than 25 years, or both.

“(c) Civil recovery.—Any person injured by reason of a violation of section 2421A(b) may recover damages and reasonable attorneys’ fees in an action before any appropriate United States district court.

“(d) Mandatory restitution.—Notwithstanding sections 3663 or 3663A and in addition to any other civil or criminal penalties authorized by law, the court shall order restitution for any violation of subsection (b)(2). The scope and nature of such restitution shall be consistent with section 2327(b).

“(e) Affirmative Defense.—It shall be an affirmative defense to a charge of violating subsection (a), or subsection (b)(1) where the defendant proves, by a preponderance of the evidence, that the promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or facilitation was targeted.”.

Subsection (a) says that it’s illegal for anyone to provide (own, manage, or operate), or conspire or attempt to provide, a website or web-based service with the intent to promote or facilitate prostitution of another person.  Anyone found guilty under this section can be fined or imprisoned for up to 10 years.  Subsection (b) provides that it is an even higher level crime to provide a website in this way when: (1) it promotes or facilitates the prostitution of 5 or more persons, or (2) is in wreckless disregard as to such conduct contributed to sex trafficking.  Anyone found guilty of the aggravated charge will be fined and may be imprisoned for up to 25 years.

There are many issues with Subsections (a) and (b).  For example, what constitutes “intent”? Must it be willful, or would an operator’s knowledge without reacting be enough? Another example is what constitutes an “attempt”?  Is the mapping it with a pencil and paper enough?  Is buying a domain name enough?  Or, must a person put up a beta site?  Yet another example is what are the definitions of “facilitating” or “promoting”?

Subsections (c) and (d) enable damages to be collected by victims of violations of the law, and provides for mandatory restitution to those victims.  Accordingly, a victim may be awarded monetary damages by a court, and the court must order restitution (i.e. an amount that makes the victim whole).

Section (e) provides an “out” when the promotion/facilitation occurred in a place where prostitution is legal.  Accordingly, where prostitution is legal, a defendant could use such fact as a defense.

Section 4 is titled: “Ensuring ability to enforce federal and state criminal and civil law relating to sex trafficking.”  This section of the bill amends Section 230 of the Communications Decency Act.

(a) In General.—Section 230(e) of the Communications Act of 1934 (47 U.S.C. 230(e)) is amended by adding at the end the following:

“(5) NO EFFECT ON SEX TRAFFICKING LAW.—Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—

“(A) any claim in a civil action brought under section 1595 of title 18, United States Code, if the conduct underlying the claim constitutes a violation of section 1591 of that title;

“(B) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 1591 of title 18, United States Code; or

“(C) any charge in a criminal prosecution brought under State law if the conduct underlying the charge would constitute a violation of section 2421A of title 18, United States Code, and promotion or facilitation of prostitution is illegal in the jurisdiction where the defendant’s promotion or facilitation of prostitution was targeted.”.

(b) Effective date.—The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment.

These subsections are saying that the sex trafficking laws, as previously enacted, remain in full force.  A very troubling portion of this section is (b) where it is saying the law is retroactive in effect.  So, if the law passes, people may wind up entangled in its provisions for actions that occurred long before April of 2018.  It’s important to know though that the “ex post facto” clause of the U.S. Constitution (Art. I, §§ 9, 10) forbids Congress from creating criminal laws that punish acts predating the enactment of the law.  This will likely be a basis for challenge in the future.

Section 5 is titled: “Ensuring Federal liability for publishing information designed to facilitate sex trafficking or otherwise facilitating sex trafficking.”

Section 1591(e) of title 18, United States Code, is amended—

(1) by redesignating paragraphs (4) and (5) as paragraphs (5) and (6), respectively; and

(2) by inserting after paragraph (3) the following:

“(4) The term ‘participation in a venture’ means knowingly assisting, supporting, or facilitating a violation of subsection (a)(1).”.

This is expanding the law regarding prostitution, namely, Section 1591 titled “Sex trafficking of children or by force, fraud, or coercion”.  Take a look at it’s current language (prior to passage of this bill to law) here.

Section 6 is titled: “Actions by State attorneys general.”

(a) In general.—Section 1595 of title 18, United States Code, is amended by adding at the end the following:

“(d) In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by any person who violates section 1591, the attorney general of the State, as parens patriae, may bring a civil action against such person on behalf of the residents of the State in an appropriate district court of the United States to obtain appropriate relief.”.

(b) Technical and conforming amendments.—Section 1595 of title 18, United States Code, is amended—

(1) in subsection (b)(1), by striking “this section” and inserting “subsection (a)”; and

(2) in subsection (c), in the matter preceding paragraph (1), by striking “this section” and inserting “subsection (a)”.

Subsection (b) enables state attorneys general to bring civil actions under the law.  Accordingly, a federal prosecutor or a state prosecutor would be able to bring actions under the law.

Section 7 is titled: “Savings clause.”

Nothing in this Act or the amendments made by this Act shall be construed to limit or preempt any civil action or criminal prosecution under Federal law or State law (including State statutory law and State common law) filed before or after the day before the date of enactment of this Act that was not limited or preempted by section 230 of the Communications Act of 1934 (47 U.S.C. 230), as such section was in effect on the day before the date of enactment of this Act.

This is saying that this law would not limit any criminal prosecution that was not limited by the Communications Decency Act prior to passage of the Bill.

Section 8 is titled: “GAO Study.”

On the date that is 3 years after the date of the enactment of this Act, the Comptroller General of the United States shall conduct a study and submit to the Committees on the Judiciary of the House of Representatives and of the Senate, the Committee on Homeland Security of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate, a report which includes the following:

(1) Information on each civil action brought pursuant to section 2421A(c) of title 18, United States Code, that resulted in an award of damages, including the amount claimed, the nature or description of the losses claimed to support the amount claimed, the losses proven, and the nature or description of the losses proven to support the amount awarded.

(2) Information on each civil action brought pursuant to section 2421A(c) of title 18, United States Code, that did not result in an award of damages, including—

(A) the amount claimed and the nature or description of the losses claimed to support the amount claimed; and

(B) whether the case was dismissed, and if the case was dismissed, information describing the reason for the dismissal.

(3) Information on each order of restitution entered pursuant to section 2421A(d) of title 18, United States Code, including—

(A) whether the defendant was a corporation or an individual;

(B) the amount requested by the Government and the justification for, and calculation of, the amount requested, if restitution was requested; and

(C) the amount ordered by the court and the justification for, and calculation of, the amount ordered.

(4) For each defendant convicted of violating section 2421A(b) of title 18, United States Code, that was not ordered to pay restitution—

(A) whether the defendant was a corporation or an individual;

(B) the amount requested by the Government, if restitution was requested; and

(C) information describing the reason that the court did not order restitution.

This section is indicating that a study is to be conducted in three years.  A report is to be prepared which includes the information listed.

If this Bill becomes law, it will dramatically change the landscape of the Internet.  If website operators can be held liable for actions and speech of users, such operators are going to remove services and likely monitor and filter the content posted on or transmitted through their sites since the government will be watching over their shoulders.  This will be a significant impingement on the exercise of free speech guaranteed by the First Amendment, and will likely be the basis for challenge in the future.

You don’t have to take my word about the chilling effects of FOSTA though – It is proven by the fact that even while the Bill has not yet been signed into law, it has still already caused waves of silenced speech online in the U.S. and beyond.  Some adult sites, as of the date of publication of this article, have completely disappeared, or prevented U.S. users from access to their sites, such as www.cityvibe.com, www.pounced.org, www.nightshift.co, and www.TheEroticReview.com.  Some mainstream sites have shut down portions of their services. For example, Craigslist shut down personal ads for its U.S. listings, and Reddit has banned escorts and sugar daddy forums.

Massive global companies like Google and Microsoft have also already acted.  Microsoft updated its terms of service to prohibit “offensive language” and “inappropriate content.” Google Play has edited its policy to prohibit “explicit” content such as “promotional images of sex toys,” “depictions of sex acts or sexually suggestive poses,” “promoting sexually explicit user-generated content,” and “apps that promote escort services…”.  None of these now-banned things are illegal… But with an unreasonably vague and broad law looming that could threaten a company’s entire existence, we’ll inevitably be seeing much more of this if the President signs the Bill.  This shows the result of FOSTA – extensive censorship.

It’s also unclear how this Bill, as law, would really prevent sex trafficking or human trafficking.  Human trafficking was around long before the appearance of the Internet, so it’s hard to believe that it will go away just because of this law.  Content shared on online sites can be accessed much more easily than the content of oral agreements and handshakes made underground.  This electronic evidence can be used to assist in investigations, locate victims, and prosecute criminals.  In addition, prostitution is “the oldest profession.”  For those who are consensual sex workers (e.g., prostitutes), FOSTA could make them much more vulnerable – And they have been very vocal about it.  Sex workers report that they use such sites to screen potential clients as well as share information among each other about clients who are “safe.”  FOSTA removes this safety net.

In any case, this Bill throws the First Amendment and the ex post facto clause enacted by our forefathers to the wayside.  No doubt that the law’s legality would be challenged, but it could take years to work its way through the court system.  In the meantime, our speech online will be changed in unfathomable ways.  Additionally, as almost always, the outcome in the courts is uncertain, so there is no guarantee that the law would eventually be invalidated.  The bottom line is that if President Trump signs FOSTA into law, it’s highly likely that we’ll living with it for years to come.  Check back here for updates.

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