Stop Enabling Sex Traffickers Act

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Stop Enabling Sex Traffickers Act
and
Allow States and Victims to Fight Online Sex Trafficking Act
Great Seal of the United States
Long title SESTA: "To amend the Communications Act of 1934 to clarify that section 230 of that Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sex trafficking."

FOSTA: "A bill 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."
Acronyms (colloquial) FOSTA-SESTA
Enacted by the 115th United States Congress
Legislative history

The Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) are the U.S. Senate and House bills that as the FOSTA-SESTA package became law on April 11, 2018. They clarify the country's sex trafficking law to make it illegal to knowingly assist, facilitate, or support sex trafficking, and amend the Section 230 safe harbors of the Communications Decency Act (which make online services immune from civil liability for the actions of their users) to exclude enforcement of federal or state sex trafficking laws from its immunity. Senate sponsor Rob Portman had previously led an investigation into the online classifieds service Backpage (which had been accused of facilitating child sex trafficking), and argued that Section 230 was protecting its "unscrupulous business practices" and was not designed to provide immunity to websites that facilitate sex trafficking.

SESTA received bipartisan support from U.S. senators, the Internet Association, as well as companies such as 21st Century Fox and Oracle, who supported the bill's goal to encourage proactive action against illegal sex trafficking. SESTA was criticized by pro-free speech groups for weakening section 230 safe harbors, alleging that it would make providers become liable for any usage of their platforms that facilitates sex trafficking, knowingly if they moderate for such content, and with reckless disregard if they do not proactively take steps to prevent such usage.

SESTA was incorporated into the House version of the bill with the "Allow States and Victims to Fight Online Sex Trafficking Act" (FOSTA) and the joint proposal was known as the "FOSTA-SESTA package". On February 27, 2018, the FOSTA-SESTA package was passed in the House of Representatives with a vote of 388-25.[1] On March 21, 2018, the FOSTA-SESTA package bill passed the Senate with a vote of 97-2, with only senators Ron Wyden and Rand Paul voting against it.[2] The bill was signed into law by President Donald Trump on April 11, 2018.[3][4]

Overview[edit]

The Section 230 safe harbor was established in 1996, making the providers of "interactive computer services" immune from liability under civil laws for the actions of their users if they publish objectionable content (such as defamatory and obscene content). Section 230 has been considered a key piece of internet legislation, as operators of online services that handle user-generated content are not liable for civil wrongs committed by their users, if the service was not directly involved in the offending content. These provisions do not apply to criminal or intellectual property law.[5] The Stop Advertising Victims of Exploitation (SAVE) Act made it illegal to advertise sex trafficking, knowingly benefit financially from participation in a venture that advertises sex trafficking, and to engage in activities related to sex trafficking besides advertising, knowingly or in reckless disregard of the fact that sex trafficking is involved.[6][7]

In an op-ed, Portman cited numbers from the National Center for Missing and Exploited Children, with an 846% increase in reports of suspected child sex trafficking to the organization. He attributed this largely to Backpage—an online classifieds service that had been accused of knowingly accepting ads which facilitated child sex trafficking, and filtered specific keywords in order to obfuscate it. The site had faced legal disputes, and a government investigation spearheaded by Portman.[8] Portman argued that Section 230 was being used to "protect its unscrupulous business practices", and that Section 230 protections "were never intended to apply – and they should not apply – to companies that knowingly facilitate sex trafficking."[9]

The Stop Enabling Sex Traffickers Act amends Section 1591 of Title 18 of the United States Code to add a definition of "participation in a venture", as knowingly assisting, facilitating, or supporting sex trafficking.[10] It amends section 230 of Title 47 of the United States Code to state that it is policy to "ensure vigorous enforcement of Federal criminal and civil law relating to sex trafficking", and that section 230 does not impair enforcement of "any State criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting [sex trafficking]", nor "impair the enforcement or limit the application of section 1595 of title 18, United States Code."[7][11]

Reaction[edit]

Support[edit]

Congress[edit]

SESTA was co-sponsored by 27 Democratic and Republican senators; early supporters of the bill included members of the Permanent Subcommittee on Investigations, which is chaired by Portman and led the aforementioned investigation into Backpage.[12] Representative Mimi Walters stated that websites such as Backpage have become the "storefronts" for the modern-day slave trade and that the FOSTA-SESTA legislation will help prosecutors "crack down on websites that promote sex trafficking" as well as provide recourse for victims.[13] Representative Carolyn Maloney (D-NY) stated her support for the FOSTA-SESTA package, believing that "Congress must act to clarify that Section 230 of the Communications Decency Act was never meant to shield sex traffickers."[13]

Advocacy Groups[edit]

The New Jersey Coalition Against Human Trafficking called the FOSTA-SESTA package a "groundbreaking bill" in the effort to bring justice to victims.[13] The FOSTA-SESTA package is also supported by other members of advocacy groups such as ECPAT Executive Director Carol Smolenski, Operation Texas Shield founder John Clark, and Faith & Freedom Coalition Executive Director Timothy Head.[13]

Corporations[edit]

21st Century Fox and Oracle Corporation have pledged support for the bill; Oracle vice president Kenneth Glueck stated that it would "establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking".[14] Fox stated that "everyone that does business in this medium has a civic responsibility to help stem illicit and illegal activity. While it is impossible to formulate laws to govern every possible situation, [the] legislation is a rational and measured effort to deal with a tragic and pernicious problem that is global in scope."[15]

Criticism[edit]

U.S. Department of Justice[edit]

Writing on behalf of the U.S. Department of Justice, Assistant-Attorney General Stephen Boyd addressed Chairman of the House Judiciary Committee, Bob Goodlatte, expressing concerns that provisions of the bill would make it even harder to prosecute sex traffickers. Additionally they expressed concerns that certain provisions would violate the Constitution's Ex Post Facto Clause and thus be unconstitutional.[16]

Congress[edit]

Opposition to the bill was voiced by members of Congress as well. In an official statement Senator Ron Wyden stated, "I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals, that it will favor big tech companies at the expense of startups and that it will stifle innovation."[17] The only other Senator to oppose the bill was Republican Rand Paul.[2]

Advocacy Groups[edit]

SESTA has been criticized by pro-free speech and pro-Internet groups including the Center for Democracy and Technology, Electronic Frontier Foundation, the ACLU,[18] Engine Advocacy, the Sex Workers Outreach Project (which described SESTA as a "disguised internet censorship bill"),[19] and the Wikimedia Foundation,[20] who argue that the bill weakens the section 230 safe harbors, and places an unnecessary burden on internet companies and intermediaries that handle user-generated content or communications.[14] EFF staff attorney Aaron Mackey told the Washington Examiner that under SESTA, service providers would be required to proactively take action against sex trafficking activities, and would need a "team of lawyers" to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies).[12] Online sex workers argued that SESTA would harm their safety, as the platforms they utilize for offering and discussing sexual services (as an alternative to street prostitution) had begun to reduce their services or shut down entirely due to the threat of liability under SESTA. Social media hashtag campaigns emerged to advocate against the bill for these reasons, such as #LetUsSurvive and #SurvivorsAgainstSESTA.[21][22]

In its original form, the bill defined "participation in a venture" as "knowing conduct by an individual or entity, by any means".[10] The EFF and the Internet Association argued that any online service could theoretically be used to "facilitate" sex trafficking, and that the law would have a chilling effect on voluntary moderation of websites (as encouraged by the "Good Samaritan provision" of section 230, which states that providers are not liable on account of "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be [objectionable]"),[23] as even the mere discovery of sex trafficking content could constitute knowing conduct of participation in a venture, and that dismissing the risk could constitute reckless disregard.[14][24][25] The Senate voted down a proposed amendment by Ron Wyden, which would have clarified the law to ensure that moderation does not contribute to liability.[26][27] The Consumer Technology Association stated that SESTA was well-intentioned but could "create a trial lawyer bonanza of overly-broad civil lawsuits".[14]

The EFF further argued that websites which knowingly facilitate sex trafficking were already liable per Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, which ruled that section 230 immunity does not apply if an online service was directly involved in the creation of content that violates civil law.[24] Exposure of websites to liability under state trafficking laws was also considered a contradiction of 230, as it was designed to help protect service providers from varying state civil laws.[24] In late March 2018 and early April 2018, following the bill's passage but prior to its implementation, courts in Massachusetts and Florida made rulings affirming that Backpage was liable for facilitating sex trafficking, because its practice of intentionally removing keywords pertaining to minors made it a provider of content subject to liability, as opposed to an interactive computer service.[28][29]

The Internet Association stated that it would "support targeted amendments to the Communications Decency Act that would allow victims of sex trafficking crimes to seek justice against perpetrators", but initially criticized SESTA for using terms which were undefined or broadly-interpreted in case law, and argued that it would "introduce new legal risk not just for internet services that do not knowingly and intentionally facilitate illegal conduct, but also create risk for an incredibly broad number of innocent businesses by expanding the notion of contributory liability."[25] The Internet Association pledged support for SESTA on November 3, 2017 after an agreement to clarify portions of it; in particular, the definition of "participation in a venture" was amended to replace "knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation" with just "knowingly assisting, supporting, or facilitating a violation".[10]

It has been suggested that SESTA could be used as a model for future exclusions from Section 230 immunity, such as copyright infringement (especially with its support from major film studios), and terrorism content.[14][15][12][30]

Corporations[edit]

Initially The Internet Association (which represents Facebook, Google, Microsoft, and other tech companies) voiced opposition to the bill. However, after coming to a compromise on the wording of one section, they withdrew their opposition. The proposed bill originally defined participation as “knowing conduct, by an individual or entity, by any means, that assists, supports or facilitates a violation of sex trafficking laws" and was amended to “knowingly assisting, supporting, or facilitating a violation.”[31]

FOSTA-SESTA Package[edit]

On February 21, 2018, representative Ann Wagner (R-MO) issued a press release stating that the bill she sponsored, H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA),[32] would be put on the House floor the week of February 26, 2018.[13] According to Wagner, the bill was expected to be considered with an amendment from representative Mimi Walters (R-CA) that included victim-centered provisions from SESTA.[13] Like SESTA, the FOSTA-SESTA package would clarify that section 230 of the CDA does not prevent states and victims of sex trafficking from pursuing a course of action against interactive computer service providers, such as Backpage.[13] Wagner said she believed that "[o]nline trafficking is flourishing because there are no serious, legal consequences" for websites that profit from sex trafficking and that the "FOSTA-SESTA package will finally give prosecutors the tools they need to protect their communities and give victims a pathway to justice."[13]

Response[edit]

Craigslist ceased offering its "Personals" section within all US domains in response to the bill's passing, stating "Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services."[33] Furry personals website Pounced.org voluntarily shut down, citing increased liability under the bill, and the difficulty of monitoring all the listings on the site for a small organization.[34]

The effectiveness of the bill has come into question as it has purportedly endangered sex workers and has been ineffective in catching and stopping sex traffickers.[35]

While there have yet to be any official reports on the effects of the law, there have been many anecdotal reports of increased street sex work, attempts by sex workers to seek advice for how to ply their trade without using the internet, increased activity of "pimps" attempting to prey on vulnerable sex workers, and an immediate increase in the disappearances and deaths of sex workers, with no indication that law enforcement has been able to uncover and prosecute sex trafficking more effectively. These reports are largely in line with what critics of the bill have stated would happen, indicating that the law has had an adverse effect on anti-sex trafficking efforts, the opposite of the law's intended purpose.[36][37][38] In addition, similar consequences of the law's enactment have been reported internationally.[39]

Legal Challenge[edit]

On the 28th of June 2018, the EFF filed a lawsuit challenging the law, representing the Internet Archive, Human Rights Watch, the Woodhull Freedom Foundation, Eric Koszyk, and Alex Andrews, seeking to have the law declared unconstitutional and seeking to have an injunction against it being enforced.[40][41] The lawsuit cites Reno v. American Civil Liberties Union (where all but Section 230 of the Communications Decency Act was invalidated) and the invalidation of the Child Online Protection Act as precedent, arguing that the combined FOSTA/SESTA law is too broad and poorly-worded and constitutionally defective in the same way those acts were.

References[edit]

  1. ^ Jackman, Tom (February 27, 2018). "House passes anti-online sex trafficking bill, allows targeting of websites like Backpage.com" – via www.washingtonpost.com. 
  2. ^ a b "U.S. Senate: U.S. Senate Roll Call Votes 115th Congress - 2nd Session". www.senate.gov. 
  3. ^ Elizabeth Dias (2018-04-11). "Trump Signs Bill Amid Momentum to Crack Down on Trafficking". New York Times. Retrieved 2018-04-11. 
  4. ^ Larry Magid (2018-04-06). "DOJ Seizes Backpage.com Weeks After Congress Passes Sex Trafficking Law". Forbes. Retrieved 2018-04-08. 
  5. ^ "A new bill to fight sex trafficking would destroy a core pillar of internet freedom". The Verge. Retrieved 2017-09-19. 
    "Section 230 Of The Communications Decency Act Turns 20". Law360. Retrieved 2017-09-19. 
  6. ^ "H.R. 4225 - Summary". United States Congress. Retrieved 19 May 2014. 
  7. ^ a b "Stop SESTA: Amendments to Federal Criminal Sex Trafficking Law Sweep Too Broadly". Electronic Frontier Foundation. 2017-09-08. Retrieved 2017-09-20. 
  8. ^ Hawkins, Derek (2017-01-10). "Backpage.com shuts down adult services ads after relentless pressure from authorities". Washington Post. ISSN 0190-8286. Retrieved 2017-09-21. 
  9. ^ Jackman, Tom (2017-08-01). "Senate launches bill to remove immunity for websites hosting illegal content, spurred by Backpage.com". Washington Post. ISSN 0190-8286. Retrieved 2017-09-20. 
    "Holding Backpage.com accountable". The Blade. 2017-08-20. Retrieved 2017-09-20. 
    Washington, Olivia Solon Sabrina Siddiqui in (2017-09-07). "Why is Silicon Valley fighting a sex trafficking bill?". The Guardian. ISSN 0261-3077. Retrieved 2017-09-20. 
  10. ^ a b c "Internet Association Sells Out The Internet: Caves In And Will Now Support Revised SESTA". Techdirt. Retrieved 2017-11-04. 
    Tsukayama, Hayley (2017-11-03). "Major tech-industry group drops opposition to sex trafficking bill". Washington Post. ISSN 0190-8286. Retrieved 2017-11-04. 
  11. ^ "S.1693 - Stop Enabling Sex Traffickers Act of 2017". Congress.gov. Retrieved 2017-09-20. 
  12. ^ a b c Quinn, Melissa. "Tech community fighting online sex trafficking bill over fears it will stifle innovation". Washington Examiner. Retrieved 2017-09-20. 
  13. ^ a b c d e f g h "Wagner Trafficking Bill Headed To House Floor - Congresswoman Ann Wagner". wagner.house.gov. 
  14. ^ a b c d e "Sex trafficking bill is turning into a proxy war over Google". The Verge. Retrieved 2017-09-20. 
  15. ^ a b Johnson, Ted (2017-09-13). "21st Century Fox Backs Sex Trafficking Bill Opposed by Major Internet Firms". Variety. Retrieved 2017-09-20. 
  16. ^ "DOJ Tells Congress SESTA/FOSTA Will Make It MORE DIFFICULT To Catch Traffickers; House Votes For It Anyway". Techdirt. Retrieved 2018-03-26. 
  17. ^ "Wyden Issues Warning About SESTA | U.S. Senator Ron Wyden of Oregon". www.wyden.senate.gov. Retrieved 2018-04-11. 
  18. ^ "ACLU letter opposing SESTA". American Civil Liberties Union. Retrieved 2018-03-25. 
  19. ^ "SWOP-USA stands in opposition of disguised internet censorship bill SESTA, S. 1963". Sex Workers Outreach Project. Retrieved 2017-10-23. 
  20. ^ "Wikipedia warns that SESTA will strip away protections vital to its existence". The Verge. Retrieved 2018-03-08. 
  21. ^ "How a New Senate Bill Will Screw Over Sex Workers". Rolling Stone. Retrieved 2018-03-25. 
  22. ^ Zimmerman, Amy (2018-04-04). "Sex Workers Fear for Their Future: How SESTA Is Putting Many Prostitutes in Peril". The Daily Beast. Retrieved 2018-04-07. 
  23. ^ "Alt-Right Twitter App Developers Sue Google After Gab.Ai App Is Kicked Out Of The Play Store". Techdirt. Retrieved 2017-09-20. 
  24. ^ a b c "Stop SESTA: Section 230 is Not Broken". Electronic Frontier Foundation. 2017-09-06. Retrieved 2017-09-20. 
  25. ^ a b "Testimony of Abigail Slater, General Counsel, Internet Association" (PDF). Internet Association. Retrieved 2017-10-23. 
    "The Sex Trafficking Fight Could Take Down a Bedrock Tech Law". Wired.com. Retrieved 2017-09-20. 
  26. ^ "SESTA's Sponsors Falsely Claim That Fixing SESTA's Worst Problem Harms Hollywood". Techdirt. Retrieved 2018-03-24. 
  27. ^ "Senate passes controversial anti-sex trafficking bill". The Verge. Retrieved 2018-03-24. 
  28. ^ "Court Shows SESTA Is Not Needed: Says Backpage Can Lose Its CDA 230 Protections If It Helped Create Illegal Content". Techdirt. Retrieved 2018-04-07. 
  29. ^ "Yet Another Court Says Victims Don't Need SESTA/FOSTA To Go After Backpage". Techdirt. Retrieved 2018-04-07. 
  30. ^ Mullin, Joe (2018-03-16). "How FOSTA Could Give Hollywood the Filters It's Long Wanted". Electronic Frontier Foundation. Retrieved 2018-03-24. 
  31. ^ Jackman, Tom (2017-11-07). "Internet companies drop opposition to bill targeting online sex trafficking". Washington Post. ISSN 0190-8286. Retrieved 2018-04-10. 
  32. ^ Ann, Wagner, (March 21, 2018). "H.R.1865 - 115th Congress (2017-2018): Allow States and Victims to Fight Online Sex Trafficking Act of 2017". www.congress.gov. 
  33. ^ "Craigslist Just Nuked Its Personal Ads Section Because of a Sex-Trafficking Bill". Motherboard. Vice. 2018-03-23. Retrieved 2018-03-23. 
  34. ^ Samantha Cole (April 2, 2018). "Furry Dating Site Shuts Down Because of FOSTA". Motherboard. Vice. Retrieved April 28, 2018. 
  35. ^ "Police Realizing That SESTA/FOSTA Made Their Jobs Harder; Sex Traffickers Realizing It's Made Their Job Easier". 
  36. ^ "Congress is forcing sex workers to revert back to a more dangerous, pre-internet era". The Verge. Retrieved 2018-05-18. 
  37. ^ "Pimps Are Preying on Sex Workers Pushed Off the Web Because of FOSTA-SESTA". Motherboard. 2018-04-30. Retrieved 2018-05-18. 
  38. ^ "Police Realizing That SESTA/FOSTA Made Their Jobs Harder; Sex Traffickers Realizing It's Made Their Job Easier". Techdirt. Retrieved 2018-05-18. 
  39. ^ "Australian sex workers have had a devastating few weeks. Here's why". NewsComAu. Retrieved 2018-05-18. 
  40. ^ https://www.eff.org/deeplinks/2018/06/eff-sues-invalidate-fosta-unconstitutional-internet-censorship-law
  41. ^ https://assets.documentcloud.org/documents/4567280/Woodhull-Freedom-Foundation-v-United-States-Filed.pdf

External links[edit]