FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) and SESTA (Stop Enabling Sex Traffickers Act) are U.S. Senate and House bills which 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 Section 230 of the Communications Decency Act (which protects providers and users of online services from civil liability for information or content provided by a third-party user) 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) in 2015, 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, tech lobbying group 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. 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. The bill was signed into law by President Donald Trump on April 11, 2018.
Overview Section 230 was established in 1996, making the providers and users of "interactive computer services" immune from civil liability for objectionable content (such as defamatory and obscene content) provided by a third-party. 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. As described by Sarah Jeong of The Verge, "For example, Twitter, Inc. cannot be sued if one of its users defames another user." The provisions of Section 230 do not apply to intellectual property law, which is instead covered by the Digital Millennium Copyright Act, nor do they provide a shield from federal criminal liability — including federal laws regarding child abuse material and exploitation.
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.
In an op-ed, Portman cited numbers from the National Center for Missing and Exploited Children, which showed an 846% increase in reports of suspected child sex trafficking to the organization from 2010 to 2015. 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.
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."
Despite a series of several unsuccessful lawsuits attempting to eliminate the "adult services" section of Backpage or have shut down the website entirely, most of which had been dismissed on First Amendment freedom of speech or Section 230 protection grounds, in January 2017, Backpage ultimately decided to shut down the site's "adult" section anyway, citing "overwhelming pressure from the government."
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. 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."
Reaction
Support Congress SESTA was co-sponsored by 27 Democratic and Republican senators; early supporters of the bill included members of the Permanent Subcommittee on Investigations, which was chaired by Portman and led the aforementioned investigation into Backpage. 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. 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."
Advocacy groups The New Jersey Coalition Against Human Trafficking called the FOSTA-SESTA package a "groundbreaking bill" in the effort to bring justice to victims. 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.
Corporations 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". 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."
Criticism U.S. Department of Justice 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, he expressed concerns that certain provisions would violate the Constitution's ex post facto clause and thus be unconstitutional.
Congress 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." The only other Senator to oppose the bill was Rand Paul.
Advocacy groups SESTA has been criticized on free speech grounds and by advocacy groups due to concerns about disproportionate impact and disruptions to the lives of sex workers. Pro-free speech and pro-Internet groups, including the Woodhull Freedom Foundation, the Center for Democracy and Technology, Electronic Frontier Foundation (EFF), the ACLU, Engine Advocacy, the Sex Workers Outreach Project (SWOP), and the Wikimedia Foundation, 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. 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).
Sex workers argued that SESTA would harm their safety, as the online 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. Others have demonstrated how the platforms that still facilitate sex work have increased their prices and engaged in more exploitative practices, leaving sex workers with limited bargaining power. Some also argued that SESTA incorrectly assumes that most or all women providing sexual services are victimized, and that the law is simply designed to raise the barrier to entry for legitimate sex workers, while failing to protect victims. Social media hashtag campaigns emerged to advocate against the bill for these reasons, such as #LetUsSurvive and #SurvivorsAgainstSESTA.
In its original form, the bill defined "participation in a venture" as "knowing conduct by an individual or entity, by any means". 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 content 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]"), 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. 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. The Consumer Technology Association stated that SESTA was well-intentioned but could "create a trial lawyer bonanza of overly-broad civil lawsuits".
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, and because Section 230 has never provided protection from federal criminal law.
In late March 2018, before the Senate had voted on the bill, 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 after an investigation uncovered information suggesting that the website not only knew that their users were posting sex trafficking ads to their website, but that the company also took affirmative steps to help those ads get posted.