Washington, DC – The Electronic Frontier Foundation says March 21st was a dark day for the Internet. The US Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to censor their users. As lobbyists and members of Congress applaud themselves for enacting a law tackling the problem of trafficking, let’s be clear: Congress just made trafficking victims less safe, not more.
FOSTA was combined with the Stop Enabling Sex Traffickers Act (SESTA, S. 1693) to become SESTA / FOSTA. The combined bill undermines Section 230, the most important law protecting free speech online. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, the Internet would look very different. It’s likely that many of today’s online platforms would never have formed or received the investment they needed to grow and scale. Similarly, noncommercial platforms like Wikipedia and the Internet Archive likely wouldn’t have been founded given the high level of legal risk involved with hosting third-party content. Section 230 does not shield platforms from liability from criminal law and civil suits across-the-board. Rather, it strikes a careful balance between enabling the pursuit of justice and promoting free speech and innovation online: platforms can be held responsible for their own actions, and can still host user-generated content without fear of broad legal liability.
SESTA / FOSTA upends that balance, opening platforms to new criminal and civil liability at the state and federal levels for their users’ sex trafficking activities, including trafficking that took place before the law passed. The bill also expands existing federal criminal law to target online platforms where sex trafficking content appears and expands federal prostitution law to cover those who use the Internet to “promote or facilitate prostitution.” Many experts have chimed in to point out the danger that SESTA would put all sex workers, including those who are being trafficked. Sex workers themselves have spoken out too, explaining how online platforms have literally saved their lives. In all of Congress’ deliberations on SESTA, no one spoke to the experiences of the sex workers that the bill will push off of the Internet and onto the dangerous streets. (Electronic Frontier Foundation – Elliot Harmon at Eff.org//deeplinks/2018/03/how-congress-censored-internet)