When the Exception Swallows the Rule: The Chilling Effects of FOSTA

 

 

Background

On April 11, 2017, President Donald J. Trump signed into law the bill known as FOSTA, the Fight Online Sex Trafficking Act. FOSTA received vast bipartisan support in both houses of Congress, and is intended to reduce illegal sex trafficking online.

FOSTA creates an exception to the “safe harbor” rule under Section 230 of the 1996 Communications Decency Act. Section 230 provides that: “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” As such, Section 230 has immunized platforms and Internet service providers (ISPs) from potential liability created by hosting user-generated content. However, FOSTA creates an exception to the “safe harbor” rule by exposing ISPs to civil and criminal liability for hosting content that enables illegal sex-trafficking.

Broad Language Could Lead to Unintended Consequences

Due to its broad and sweeping language, FOSTA poses two unintended threats: (1) the chilling of online free speech; and (2) the reduced security of sex-trafficking victims and consensual adult sex workers. As to the effect of chilling online free speech, numerous platforms have responded with attempts to proactively minimize their exposure to potential liability. In response to FOSTA, Craigslist removed its “personals” section, which allowed individuals to seek encounters with others. The closure was due to Craigslist’s fear of exposure to liability for its services being misused and, relatedly, the risk posed to its other services. This recent closure demonstrates that even where such ISPs do not themselves promote ads for prostitutes, the risk of liability in light of the burden of regulating such content necessitates the closure of such platforms. Thus, only those limited ISPs that have the requisite funds and resources would be able to implement the filters and censors necessary to be in compliance. Such compliance is not feasible for all ISPs, making it necessary to close certain platforms in whole or in part if such platforms could expose the ISP to liability. This would result in reduced competition between ISPs and, thus, threaten the vibrant online marketplace of ideas.

FOSTA may also result in reduced security and safety for both consensual adult sex workers and sex-trafficking victims. For example, Backpage.com is a website that provides an “online marketplace for sex workers.” It has provided a medium for which sex workers can communicate with each other and facilitate the provision of their services. While Backpage.com recently closed after its executives were named in a federal indictment, facing charges including money laundering and facilitating prostitution, advocates of consensual sex workers are fighting against the closure of the site and potential closure of other similar sites. These advocates argue that without a platform to communicate with one another, they are placed at a greater risk of violence. Moreover, due to the closure of Backpage.com and Craigslist’s “personals” section, sex-trafficking criminals will likely turn to encrypted or dark web forums instead in an effort to further their services while evading law enforcement review. As such, law enforcement could face greater difficulty in locating victims and prosecuting such perpetrators.

Going Forward

Although intended to combat illegal sex trafficking, FOSTA’s amendment to Section 230 results in an exception that swallows the rule. The marketplace of ideas is threatened as ISPs will either regulate or eliminate platforms that pose a risk of exposure to civil and criminal liability. Moreover, the unavailability of such platforms may force online sex trafficking further into the dark web, placing consensual adult sex workers at risk and removing victims and perpetrators from the reach of law enforcement. Thus, FOSTA may result in unintended consequences far beyond its intended effect.


Sources

47 U.S.C. § 230 (c)(1).

Amanda Arnold, Here’s What’s Wrong With the So-Called Anti-Sex Trafficking Bill, The CUT (Mar. 20, 2018).

Brian Feldman, Craigslist’s Legendary Personals Section Shuts Down, NYMAG (Mar. 23, 2018).

Charlie Savage & Timothy Williams, S. Seizes Backpage.com, a Site Accused of Enabling Prostitution, New York Times (April 7, 2018).

Elizabeth Nolan Brown, The New Law That Killed Craigslist’s Personals Could End the Web As We’ve Known It, The Daily Beast (Mar. 23, 2018).

Melissa Gira Grant, 7 Sex Workers on What it Means to Lose Backpage, The CUT (April 10, 2018).

Niraj Chokshi, Craigslist Drops Personal Ads Because of Sex Trafficking Bill, New York Times (Mar. 23, 2018).

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