The US House of Representatives has just passed a bill called FOSTA (the “Fight Online Sex Trafficking Act”). This bill is headed to the senate. It needs to be stopped.
This bill is, as the name implies, ostensibly intended to fight sex trafficking. Sex trafficking is awful, and should be fought. But a lot of sex trafficking experts think that this bill won’t have that effect. That it will actually make things much worse for sex workers. For example, those sex trafficking victims that are supposed to be protected may suddenly find it illegal to talk about their experiences. Whoops.
(Yes, that’s a Jezebel link. If they don’t match your politics, fair enough, try Reason. Pretty much nobody on any side thinks this is a good idea, except a handful of underinformed celebrities. This is not a right-left issue.)
That’s probably reason enough not to pass it, or at least to go back and take another look. But that’s not the end of the story.
An amendment slipped into the bill also proposes to override section 230 of the Communications Decency Act. Without overstating the case in any way, CDA 230 is the reason small companies like ours can exist. It protects us from liability for the actions and content of our customers. That means if you don’t like what one of our customers has to say, you can’t sue us about it. The First Amendment is great, and we love it, but in everyday practice, CDA 230 is what keeps rich people and companies from filing nuisance lawsuits to force us to either censor our customers at their behest or drown in legal fees. They know that, and they hate it.
As the EFF has pointed out, if this protection is weakened, pretty soon the small voices will be silenced. Not because what they have to say is illegal, but simply because it might be. Fear of liability will force providers like us to either moderate all the content that appears on our service — massively Orwellian and expensive — or simply proactively disallow anything that might possibly create liability. Or just shut down and leave the Internet to the likes of Facebook.
In that climate, the only people who will be able to have websites will be people who can afford teams of lawyers and people who only say things so boring that they don’t run any risk of creating liability. Remember when mass communication consisted of three broadcast TV channels and everything said on them had to be approved by the channel’s “Standards & Practices” department, which censored much more than any law required them to because that was cheaper than fighting? Do you miss those days?
If you’re not that worried about us, that’s fine. Here’s why you should still care. Does your website have a forum? Does your blog allow comments? Do you have a feedback form? A wiki? Could someone post spam anywhere on your site offering sex for money? If so, enjoy your ten years in Federal prison. (And yes, we’ve seen several cases where people engaging in illegal activity find unmonitored corners of sites that allow user-contributed content and use them to communicate. We act to shut that down when we find out about it, but we’re strongly against sending the operators of those sites — or us — to prison for “facilitating” those communications.)
This sort of crackdown on online communication has been attempted several times in the past, usually around intellectual property. (Remember SOPA, PIPA, etc.?) But intellectual property owners, despite being good lobbyists, aren’t very sympathetic public figures. Sex trafficking victims are.
That is definitely reason enough not to pass it. But that’s still not the end of the story.
If you live in the United States and you ever took even a high-school level civics class, you probably ran across the concept of an ex post facto law. This refers to a situation where, if I’m in government and you do something legal that I don’t like, I make a law against it, I make that law retroactive, and then I use it to prosecute you for what you already did. That’s not how law works, and it’s not allowed.
But FOSTA contains this little tidbit:
(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.
Whoops. I guess Mrs. Mimi Walters of California (the author of the text above) skipped civics class. To be fair to Mrs. Walters, the US Constitution is very vague on this point, and the language is convoluted and hard to follow. (“No Bill of Attainder or ex post facto Law shall be passed.” – Article 1, Section 9)
That’s not the only problem, nor is it only my opinion. The US Department of Justice agrees, raising “serious constitutional concern” about the ex post facto nature of the law and states that the is broader than necessary (meaning it criminalizes not only more than it needs to, but also more than the authors think it does). They are also concerned that despite making so much stuff illegal, this bill makes it harder to prosecute the actual sex traffickers.
When the Department of Justice tells you you’re making too much stuff illegal, obviously you take a step back and fix things… unless you’re the US House of Representatives.
In that case, you pass it as-is 388-25.
That’s right, the US House passed a bill that, our own liability concerns aside, makes it harder to prosecute sex traffickers, but criminalizes people speaking out against sex trafficking, including former victims. What the hell? Do sex traffickers suddenly have really good lobbyists?
The bill has now moved on to the US Senate. Internet superhero Senator Ron Wyden of Oregon is doing his best to save us all once again, as he has done so many times before. But he needs our help. If you’re in the US, please call or email your senators today and urge them to send FOSTA back to the drawing board in favor of something Constitutional, limited, and effective. FOSTA is none of those things.