Tomorrow, the House Judiciary Committee will hold a markup on HR 1865, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). The Committee will consider an amendment to the original FOSTA in the form of a substitute bill offered by Chairman Goodlatte.
This bill includes a number of improvements over both the original House bill and the SESTA bill in the Senate, and we appreciate the Committee’s diligent efforts to craft a more tailored legislative approach. But CDT remains concerned that increasing the risk of criminal charges and civil claims against website operators and other online intermediaries will result in overbroad censorship of constitutionally protected speech.
What the Goodlatte bill does
Unlike either SESTA or the original version of FOSTA, the Goodlatte bill does not amend the existing federal statute criminalizing sex trafficking (18 U.S.C. § 1591). Rather, it creates a new federal crime (18 U.S.C. §2421A) of using a facility of interstate or foreign commerce (which includes the Internet) “with the intent to promote or facilitate the prostitution of another person”. It then creates aggravated penalties for anyone who does so with “reckless disregard of the fact that such conduct contributed to sex trafficking in violation of § 1591(a).” The aggravated penalties also apply to anyone who is found to have intentionally promoted or facilitated the prostitution of 5 or more persons. (Prostitution itself is not a federal crime and laws vary state by state. It is an affirmative defense under this bill for a defendant to demonstrate that the content promoting or facilitating prostitution was targeted at a jurisdiction where prostitution is legal.)
The bill enables trafficking victims to recover damages from a website operator or other intermediary if its promotion or facilitation of prostitution “includes responsibility for the creation or development of all or part of the information or content provided through any interactive computer service.”
The Goodlatte bill also amends Section 230 to enable state prosecutors to bring charges against intermediaries under state law if the conduct underlying the charge constitutes a violation of the new federal crime, § 2421A, or the existing federal anti-trafficking statute, § 1591.
Strengths and weaknesses of the bill
A key component of this bill is its use of a criminal intent standard in the underlying crime. By requiring prosecutors to demonstrate that a website operator actually intended to promote or facilitate prostitution, the Goodlatte bill avoids one of the biggest flaws of SESTA, which could be read to allow for prosecution of operators who were aware of specific posts on their servers but did not actually know that these posts were part of a trafficking venture. As Eric Goldman explained in his recent testimony to the House Energy & Commerce Committee, a knowledge standard in these criminal laws creates the “Moderator’s Dilemma” and discourages moderators from conducting any review of user-generated content, in order to avoid potential liability. By conditioning liability on intent, the Goodlatte bill works to avoid the Moderator’s Dilemma and is more targeted at intentional bad actors, which is a significant improvement over SESTA.
By requiring prosecutors to demonstrate that a website operator actually intended to promote or facilitate prostitution, the Goodlatte bill avoids one of the biggest flaws of SESTA.
But the Goodlatte bill is in some ways broader than SESTA, in that it focuses on the promotion and facilitation of prostitution generally (including consensual prostitution), and not only on sex trafficking (defined in federal law as commercial sex with a person who is coerced or who is under 18). This draws a much broader range of online content under potential scrutiny: Would a blog post advocating for decriminalization of consensual commercial sex be considered “promotion of the prostitution of another person”? What about online reviews of a strip club where some employees have also engaged in unlawful commercial sex acts, or linking to the social media profiles of specific performers? If the answer to any of these questions is “yes”, then the authors of that content could face criminal charges under the new law. And website operators will likely respond to this uncertainty by considering such content too risky to handle.
The civil recovery provision in the bill also scopes too broadly. It appears intended to encode the Roommates.com standard into the bill, enabling recovery of damages from a website operator that is “responsib[le] for the creation or development of all or part of the information or content provided through any interactive computer service.” But this formulation goes much further than Roommates.com and could cover essentially any website operator, since the vast majority of user-generated content sites include some information (such as titles, headings, policies, “about” pages) created by the website operator. In order to be consistent with Section 230, this provision should be revised to closely match the Roommates.com opinion, which specifies that “the term ‘development’ … refer[s] not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness.”
Consequences for online speech
Ultimately, the goal of the Goodlatte bill (as well as SESTA and FOSTA) is to encourage and enable more prosecution of website operators who host third-party content. Of the many drafts of legislation that have been circulating on the Hill since August, the Goodlatte bill comes the closest to limiting its scope to bad-actor websites, and to avoiding the unintended consequence of discouraging good-faith moderation efforts.
The increased risk of prosecution will be felt not only by bad actors, but by intermediaries ranging from giant social media platforms to tiny start-ups.
The increased risk of prosecution will be felt not only by bad actors, but by intermediaries ranging from giant social media platforms to tiny start-ups. In addition to the new federal crimes, the bill significantly increases the risk of hosting third party speech by enabling state prosecutors to target website operators for promotion or facilitation of prostitution. State attorneys general have been seeking this sort of power for many years, targeting Craigslist in 2009 with failed lawsuits (but a successful public pressure campaign) over its “adult services” section and petitioning Congress in 2013 to enable prosecution of intermediaries under all state criminal laws. Enabling state AGs to bring charges against intermediaries under state law that aligns with a new federal “promotion of prostitution” crime will undoubtedly lead to more prosecutions of website operators across the country.
In that environment, website operators will face substantial pressure to demonstrate that they fall far outside the scope of activity covered by the bill. Some intermediaries may feel comfortable relying on the fact that they genuinely have no intent to facilitate prostitution, much less sex trafficking, and take their chances with prosecutorial discretion. But many intermediaries, especially smaller operations with limited resources, could be driven out of business due to the costs of (even successfully) defending a criminal case.
The likely response from many intermediaries will be to censor aggressively and remove lawful, constitutionally protected sex- and sex-work-related speech, in an effort to demonstrate “good faith” attempts to stay well within the bounds of the law. Discussion and commentary, including political advocacy, around sex work would likely be unwelcome on many general-purpose social media and blogging platforms. And, as we’ve seen with unfortunate frequency, filters and policies designed to block sex-related content disproportionately censor LGBT voices and material.
As Congress considers legislation to combat sex trafficking, it must also be mindful of the consequences of these bills for constitutionally protected speech. We appreciate the efforts the House Judiciary Committee has made to remedy SESTA’s flaws and take a more targeted approach, and encourage the Committee to consider further amendments to refine and improve the bill (see, e.g., suggestions by Eric Goldman and TechFreedom). However, CDT remains concerned that the ultimate effect of the bill will be to drive intermediaries to censor protected speech.