Consequences of Deeply Misguided Legislation (XBIZ)
Read the full article by Larry Walters at XBIZ.com
Are we having fun yet? FOSTA/SESTA (“FOSTA”) has been around for a full year now and has managed to wreak significant havoc on the internet. Sold to Congress as a law to combat “sex trafficking,” FOSTA has instead endangered sex workers and forced massive online censorship by private companies fearing enhanced civil and criminal liability. Unless the law is struck down by the courts, things will get worse.
Early versions of the bill focused exclusively on amending Section 230 immunity, which broadly protects interactive computer services from claims based on user content. Congress decided that online intermediaries enjoyed too much protection when it came to sex trafficking, so it began looking at ways to carve out sex trafficking claims from the scope of the immunity.
The proposed change was supposedly necessary to allow the government to take down Backpage.com, which had fended off claims by asserting Section 230 defenses for years. The idea of tinkering with Section 230 immunity was bad enough on its own, since it exposed online platforms to expansive liability for sex trafficking claims if they did not take sufficient action to root out users involved with this criminal activity.
Eliminating this important legal protection creates significant problems for smaller platforms or startups, which cannot afford expensive artificial intelligence tools and an army of human moderators looking for anything that might resemble sex trafficking on their servers. The level of proof that might be required to hold an internet intermediary responsible for sex trafficking offenses is not clear under FOSTA, so companies braced for potential exposure based on the slightest hint of abusive user posts.
But Congress was not content to focus solely on illegal sex trafficking. While they were at it, lawmakers figured they would tackle consensual sex work as well. This proposed addition to the bill was opposed by free speech groups, trafficking survivors and the DOJ, itself. Nevertheless, in late February 2018, the House Judiciary Committee approved an amendment to FOSTA, which created a new federal prohibition on using an interactive computer service to promote or facilitate prostitution. The amendment did not bother to define the terms “promote” or “facilitate” or even “prostitution.”