The bill passed today 388-25 by the U.S. House of Representatives marks an unprecedented push towards Internet censorship, and does nothing to fight sex traffickers.
H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), allows for private lawsuits and criminal prosecutions against Internet platforms and websites, based on the actions of their users. Facing huge new liabilities, the law will undoubtedly lead to platforms policing more user speech.
The Internet we know today is possible only because of Section 230 of the Communications Decency Act, which prevents online platforms from being held liable for their users’ speech, except in certain circumstances. FOSTA would punch a major hole in Section 230, enabling lawsuits and prosecutions against online platforms—including ones that aren’t even aware that sex trafficking is taking place.
If websites can be sued or prosecuted because of user actions, it creates extreme incentives. Some online services might react by prescreening or filtering user posts. Others might get sued out of existence. New companies, fearing FOSTA liabilities, may not start up in the first place.
The tragedy is that FOSTA isn’t needed to prosecute or sue sex traffickers. As we’ve said before, Section 230 simply isn’t broken. Right now, there is nothing preventing federal prosecution of an Internet company that knowingly aids in sex trafficking. That includes anyone hosting advertisements for sex trafficking, which is explicitly a federal crime under 18 U.S.C. § 1591, as amended by the 2015 SAVE Act. The website that produced the most discussion around this issue, Backpage.com, is reportedly under federal investigation.
The array of online services protected by Section 230, and thus hurt by FOSTA, is vast. It includes review sites, online marketplaces, discussion boards, ISPs, even news publications with comment sections. Even small websites host thousands or millions of users engaged in around-the-clock discussion and commerce. By attempting to add an additional tool to hold liable the tiny minority of those platforms whose users who do awful things, FOSTA does real harm to the overwhelming majority, who will inevitably be subject to censorship.
Websites run by nonprofits or community groups, which have limited resources to police user content, would face the most risk. Perversely, some of the discussions most likely to be censored could be those by and about victims of sex trafficking. Overzealous moderators, or automated filters, won’t distinguish nuanced conversations and are likely to pursue the safest, censorial route.
We hope the Senate will reject FOSTA and uphold Section 230, a law that has protected a free and open Internet for more than two decades. Call your senator now and let them know that online censorship isn’t the solution to fighting sex trafficking.
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