President Trump recently signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a law that aims to fight sex trafficking by reducing legal protections for online platforms. FOSTA passed the Senate in March, and it has been endorsed by the Internet Association (representing major companies like Facebook and Google), and a handful of celebrates like Amy Schumer.
As a criminal defense lawyer in Los Angeles who specializes in sex crimes, I am skeptical that this new law will seriously limit online platforms for sex trafficking. I am also troubled by FOSTA’s adverse consequences for online free speech and consensual sex work.
FOSTA carves out a new exception to Section 230 of the Communication Decency Act, which shields website operators from liability for user-generated content. Section 230 defines Internet culture as we know it: It allows websites to offer platforms for critical and controversial speech without the threat of being sued or charged criminally. FOSTA undoes these protections for online site providers. It stipulates that Section 230 does not apply to civil and criminal charges of sex trafficking, or to conduct that “promotes or facilitates prostitution.” The rule applies retroactively to sites that violate it.
FOSTA is clearly aimed at sites like Backpage.com, which are hubs for illegal sex work. The law’s reach is much broader, and will also likely deter many site operators from allowing users to post any sexual material, especially site operators who lack the legal and technical resources of huge web platforms. For instance, Craigslist removed its personals section to avoid a lawsuit before the bill was passed.
It is unclear to what extent, if any, FOSTA will strengthen existing anti-prostitution and anti-trafficking law. The Justice Department shut down Backpage and filed criminal charges against its founders last week, before FOSTA was signed. The owner of Rentboy.com, another sex work site, was sentenced to prison for promoting prostitution last year. These recent prosecutions indicate that FOSTA is not necessary for the government to successfully target the most notorious websites facilitating illegal sex work.
I do not think Congress properly weighed the supposed benefits of FOSTA against the law’s likely adverse consequences for free speech, consensual sex work, and even victims of the illegal sex trade.
The array of online services protected by Section 230, and thus hurt by FOSTA, is vast. It includes review sites, online marketplaces, discussion boards, and even news publications with comment sections. By attempting to add an additional tool to hold liable the tiny minority of those platforms whose users who facilitate illegal sex work, FOSTA does real harm to the overwhelming majority, who will inevitably be subject to censorship. Websites run by nonprofits or community groups, which have limited resources to restrict user content, would face the most risk. It is little wonder why the Electronic Frontier Foundation has called FOSTA “the most significant rollback to date of the protections for online speech in Section 230.”
Perversely, some of the discussions most likely to be censored could be those by and about victims of illegal sex trafficking. Moreover, FOSTA does not address the demand for sex trafficking, and could push sex traffickers onto the Dark Web to continue online solicitation. In these ways, FOSTA could further marginalize vulnerable workers in the illegal sex trafficking industry.
FOSTA also problematically conflates stopping sex trafficking with stopping consensual sex work, making it difficult for sex workers to screen clients or build communities through online services.
My experience working on sex crimes cases has shown me that tough laws on sex crimes do not weaken the illegal sex trafficking industry. Instead, they often further marginalize sex workers and make the industry even less safe for participants. This is not smart policy, and certainly not worth the high cost FOSTA places on online free speech.