How FOSTA Intersects With CDA, DMCA (XBIZ)

Read the full article by Maxine Lynn at XBIZ.com 

Laws in the U.S. known in short by the acronyms FOSTA, CDA and DMCA each relate to online content and services. The CDA and DMCA have been around since 1996 and 1998, respectively. The “new kid on the block,” or more accurately, the new bully on the block, is FOSTA, passed in 2018. The applications of these laws are different, yet interconnected, as they intersect in various possible scenarios with FOSTA showing no mercy.

Section 230 of the CDA, “Communications Decency Act,” has allowed the internet to flourish as a place of open communication by protecting website providers from certain liabilities for illegal activities of users on their sites. Section 230 says, in summary, that a provider of an “interactive computer service” is not to be treated as the publisher or speaker of information shared on the service by a third-party user. So, if a user of a site posts or transmits information that is furthering an illegal activity, the site provider is not liable for that, with some exceptions including copyright infringement.

The DMCA, “Digital Millennium Copyright Act,” fills in the gap for copyright infringement liability left by Section 230 of the CDA. The DMCA includes “safe harbor” provisions that if a website “service provider” follows, will basically clear the provider of liability for copyright infringement committed by third party users on the provider’s website. These provisions state, in short, that in response to a user complaint requesting a take-down of their copyrighted content (which was uploaded by a third party), if the website service provider removes the content in a timely manner, the website service provider will not be liable for the copyright infringement.

FOSTA, the “Allow States and Victims to Fight Online Sex Trafficking Act,” created a new gap, or more accurately, a gaping hole, in the protection afforded by Section 230 of the CDA. According to the new law, a provider of an “interactive computer service” that — with the intent to promote or facilitate the prostitution or sex trafficking of another person, or with reckless disregard to such on their site — can be subject to civil or criminal liability. Violations may result in the imposition of fines and jail time of up to 25 years. Unlike the DMCA, there is no safe harbor written into the law.

An “interactive computer service” for purposes of CDA and FOSTA, or “service provider” for purposes of DMCA, can be any website which allows the posting or transmission of user-generated content. Examples include clip sites, live cam sites, tube sites, dating sites, escort advertising services and web forums, as well as mainstream websites, such as social networking sites.

Previously, the CDA (specifically, Section 230) and the DMCA enabled communication on websites without requiring “Big Brother” censorship of users by website providers. The practical effect of FOSTA, though, is that providers of websites that allow users to post or communicate with one another now have to monitor and censor that content for possible prostitution and sex trafficking.

Let’s take a look at some hypothetical, yet certainly plausible, scenarios.