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Free Expression

It’s All Downsides: Hybrid FOSTA/SESTA Hinders Law Enforcement, Hurts Victims and Speakers

The Senate is poised to consider an anti-sex trafficking bill that passed the House overwhelmingly last week. Unfortunately, this bill will do little to help victims and will silence lawful speech and burden smaller internet intermediaries.

The legislation, a hybrid of the House’s FOSTA and the Senate’s SESTA, is aimed at curbing sex trafficking online by making it easier for federal and state prosecutors and private citizens to sue website operators whose sites have been used by traffickers. While every iteration of both FOSTA and SESTA has threatened protection for online speakers and publishers, the bill passed by the House (described as “The Worst of Both Worlds” of FOSTA and SESTA) is especially concerning. The bill would amend Section 230, which protects websites and other online platforms from being held liable for content that users post. Further, the bill would expand the existing federal anti-trafficking statute in a way that could discourage website operators from moderating content. It would also create a new federal crime of “intent to promote or facilitate prostitution,” substantially expanding the range of user-generated content that might lead to liability for an online service. It would also enable state Attorneys General to pursue criminal and civil claims against websites.

The past week, however, has seen condemnation of the legislation from a few significant corners, including the Department of Justice, which noted that FOSTA/SESTA raises a “serious constitutional concern” in its provision that would apply the law to conduct that happened before the law was passed. The Wall Street Journal chimed in, denouncing the legislation, while the Los Angeles Times editorial board pointed out that Section 230 is one of the biggest factors responsible for the success of the major players online today. If YouTube or Craigslist were responsible for everyone one of its users’ posts, the companies would flounder under the sheer volume of content to review.

The hybrid FOSTA/SESTA would strip away some of the protections in Section 230 that make it possible for platforms large and small to host user-generated content. And website operators aren’t the only ones who will suffer: no internet user, website operator, trafficking victim, law enforcement officer, or other individual will be immune to the consequences of and fallout from this legislation.

Hybrid Bill Creates Negative Consequences for Everyone

Sex Trafficking Victims
Under the hybrid bill, websites are held liable for “knowingly assisting, supporting, or facilitating” sex trafficking. This provision, however, thwarts the intent of the bill (to curb sex trafficking online) because website operators who want to avoid “knowingly” facilitating anything that may even suggest sex trafficking may decide to avoid content moderation entirely. And without anyone to review (or approve/reject) posts, sex trafficking ads will continue, even flourish. Conversely, the legislation could also force companies to moderate their platforms aggressively, forcing sex traffickers (and in turn, their victims) underground, away from well-known and widely watched sites like Backpage. While this may temporarily hinder traffickers, it will also result in the loss of a major resource used by advocates and families to identify and save victims.

Law Enforcement
If website operators intentionally ignore what content is posted on their sites (in an effort to limit their liability), this will also hamper the work of local, state, and national law enforcement agencies fighting sex trafficking online. Currently, website operators are a good resource for law enforcement, but without their active participation in content review, that resource could disappear. Law enforcement efforts are also hindered by the likelihood that traffickers will disappear from the sites where they are known to be especially active. As mentioned above, the impact could thwart efforts to track, intercept, and arrest traffickers. FOSTA/SESTA forces this unfortunate tension—on the one hand, if operators intentionally avoid learning about the nature of posts, they will stop giving law enforcement tips; on the other hand, if operators are aggressive in their efforts, traffickers will go elsewhere, to platforms hosted outside of the reach of US jurisdiction—without addressing or resolving the underlying crime.

Further, the Department of Justice itself has argued that by forcing prosecutors to prove that online content hosts and website operators “knowingly facilitated” a trafficking venture, the FOSTA/SESTA hybrid makes it harder for prosecutors to succeed in court.

Website Operators and Other Intermediaries
Online services that host, link to, and otherwise enable third-party speech would be opened up to new liability on at least two fronts. First, due to the vagaries of this bill, website operators won’t always know whether they are on the right side of the law. Take this hypothetical example: A dating app/website integrates a variety of social features into its service, allowing users to connect their dating profiles to their Twitter, Facebook, and even Venmo profiles. Integrating Venmo enables financial transactions between users—would enabling this functionality expose the operator of the dating app to liability for “facilitating” prostitution? What about failing to disable the ability to embed links to external sites, if it turns out some of their users are using links to point to payment sites?

Even in the paradigm content-hosting circumstance, an operator in good faith might still end up in violation of the law. For those operators who chose to continue moderating content, they must do so perfectly, without mistake–an essentially impossible task. That’s because, under the hybrid bill, the smallest error in deciding to leave up content that was ultimately linked to trafficking could expose those operators to claims that they knowingly hosted this content on their site. Content hosts will be one overlooked message away from a fine or up to 25 years in prison.

Internet Users
While operators work to preemptively stop or aggressively remove content that might invoke their new liability, the effect on users will be an unambiguous chilling of speech. To mitigate liability risks, platforms will err on the side of removing potentially questionable speech rather than leaving it up. Inevitably, a moderator doing his/her job will over-censor, catching up lawful speech protected by the Constitution in an attempt to be as comprehensive as possible. Hosts may rely on broad, over-inclusive keyword filters or other automated tools that wholesale prevent certain types of content from being shared. While such a broad scope of content removal is bad enough, users will begin to self-censor in an effort to keep in line with new and aggressive content review schemes.

Looking at the bigger picture, any number of internet users will suffer under FOSTA/SESTA. Given the vagueness of the law and the liabilities placed on website operators, online platforms will be less inclined to host speech that relates to sex and sexuality. In turn, any number of speakers—a sex worker who blogs about her life, adult entertainment professionals, a former sex worker doing a reddit AMA—and any number of subjects—health information, safety alerts, crowd-sourced lists of clients to avoid—will be silenced. FOSTA/SESTA will only further highlight ambiguities around sexuality and commerce, rather than addressing the difficult questions those issues present. Asking website operators to draw lines that the legal system has been unable to draw will lead to nothing short of wholesale censorship of online speech.

Users around the world have embraced the internet for its ability to both democratize and amplify voices. FOSTA/SESTA, however, may seriously change the landscape of digital freedom of expression, opening the doors for greater censorship by private actors.

As the WSJ editorial board observed last week, “The House and Senate bills would create more problems than they fix.” So what can you do? Go to today to contact your senators and let them know SESTA will change the internet as we know it.