A recent duo of bills, most commonly referred to as the FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) and SESTA (Stop Enabling Sex Traffickers Act) bills, were signed into law on April 11, 2018. While any potentially positive or negative long-term ramifications of these new laws remains to be seen at this early stage, the passage of these bills has already raised some more immediate questions regarding their true effectiveness and even the questionable constitutionality of their intended approach.

What are the FOSTA/SESTA Laws?

Initially existing as two separate but similar bills, FOSTA and SESTA were combined into a joint proposal – the FOSTA/SESTA package – which then passed the House of Representatives and the Senate before being signed into law by the Trump administration in April 2018.

The FOSTA/SESTA package bill was created with a stated intention of positive change, making it illegal for an interactive online service (website, forums, etc.) to knowingly facilitate, assist or support a violation of sex trafficking laws. Advocates of the new law are hopeful that it will offer a measure of protection to would-be victims of sex trafficking by deterring, preventing and punishing anyone who is involved in the active promotion of and/or participation in crimes of this awful nature, while also providing the surviving victims of the illegal sex trafficking trade with an avenue through which they can pursue justice by filing a civil lawsuit against the site that hosted an ad which led to their victimization.

The Complexities of FOSTA/SESTA

It’s impossible to argue that illegal sex trafficking is not a concern that deserves to be addressed and that criminals who are responsible for knowingly facilitating and committing these crimes shouldn’t face the appropriate consequences – but there are other issues in relation to using FOSTA/SESTA to accomplish this that also need to be addressed.

FOSTA/SESTA Fails to Clearly Define What it Aims to Prevent

The consensual sex trade is a very different enterprise than illegal sex trafficking, but due to the lack of a clearly defined distinction between the two, FOSTA/SESTA essentially puts them on the same level. This creates new problems without truly offering a solution to the very real issue of illegal sex trafficking by criminalizing the hosting of any online content related to sex work that could be interpreted as being related to sex trafficking. Now online services or websites that are considered to be in violation of the new laws can be held liable and prosecuted for content that was posted by their users or clients, but which could now be seen as their implied involvement in the facilitation of online sex trafficking. This leads directly into another serious concern for critics of the new law, which many feel is a direct violation of our right to freedom of speech.

The Clash of Section 230 and FOSTA/SESTA

Internet savvy readers are likely to be well versed in this, but for the sake of those who are less familiar, some background might be in order. Section 230 of the Communications Decency Act, which was established in 1996, is a very important component of internet related legislation. It was created to give the providers of interactive computer services, like websites or forums, a legal safe harbor, offering them protection by granting them immunity from being liable for offensive or obscene content that was posted by the users or clients of their online service, as long as their service was not involved directly in the objectionable content in question.

The passage of FOSTA/SESTA amends Section 230, weakening those legal protections for online service providers by making them liable for any user-generated content that could be considered to promote or facilitate prostitution. This applies not only to current content, but is also applicable retroactively – meaning that if it is accessible, even content posted prior to the new law that could be considered a current violation.

Internet Response to FOSTA/SESTA

Many websites and platforms took a proactive approach to the new law, shutting down or removing specific portions of their service before the law was even officially signed – most notably on the popular classified ad website, Craigslist, which completely removed the substantial “personals” section of their U.S. sites. Their message to users following the removal stated in part that the new law seeks “to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully”, followed by “Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day.”

Decreased Safety for Sex Workers

One of the most vocal opposition groups to the new law includes consensual sex workers, many of whom have been relying on internet-based interactions to both screen potential clients and freely share helpful safety information with one another. Many of these workers have expressed their fears about being losing an important element of control in what can admittedly be very dangerous work, as well as forcing them to put themselves more directly in harm’s way by seeking clients on the street rather than from the safer alternative of a web-based service.

We feel that It is important that a balance is sought for the underlying issues that prompted the passage of the FOSTA/SESTA laws – but it needs to be one that finds a way to not only prevent and penalize those who are truly guilty of facilitating or participating in illegal sex trafficking, but that also provides the rightful protection of those whose lives and livelihood will be negatively affected simply because they are on the periphery of these issues. If you have been affected by these new laws and would like to discuss the legal options that may be available to you, we invite you to contact us today for an evaluation of your case – free of charge. We may be able to help.