The Disastrous FOSTA Bill


Experts say that section 230 of the Communications Decency Act of 1996 is one of the most important laws enacted for protecting the internet. It enhances innovation, promotes free speech, and allows the web to flourish. Because courts have used section 230 to protect websites from advertisers that might be engaging in illegal prostitution and sex trafficking, the Senate and House wrote a bill to qualify section 230's language where it is asserted that section 230 was never meant to protect such websites. It's called "FOSTA." FOSTA, the "Fight Online Sex Trafficking Act," H.R. 1865, introduced by Rep. Ann Wagner (R-MO), attempts to tackle the problem of sex trafficking by targeting websites where prostitutes and sex traffickers ply their trade. The FOSTA bill has recently been signed by the president and is now law. But, the new law reminds me of the adage, "The road to hell is paved with good intentions."

Perhaps unintentionally, FOSTA tramples on section 230 and replaces it with something ominous.  We, the users and contributors of the internet, can now kiss "free speech," "innovation," and "flourish" goodbye. If that sounds like fear mongering and exaggerating, I plead guilty, but I am not alone with this sentiment. Internet advocacy groups, legal minds, experts, and more importantly, that particular guardian of the internet, the Electronic Frontier Foundation (EFF), agree. The EFF also warns us that, "FOSTA does nothing to stop sex trafficking."

While FOSTA has a noble objective, it's already causing a chilling effect. Even before the President signed FOSTA into law, when patrons of Craiglist Personal Ads section click on one of the personals categories, they were (and still are)  greeted with this (condensed version, click here for their complete text) :

"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 someday; To the millions of spouses, partners, and couples who met through Craigslist, we wish you every happiness!"

For fear of prosecution, Craiglist removed them. Is this world we want to live in, if, in fact, the law does not fight sex trafficking and prostitution, but penalizes the innocent? 

One would think an advocacy group for sex trafficking victims and survivors of trafficking would support FOSTA, but Injustice Today, which is such a group, opposes it. Another notable critic of this bill, Eric Goldman, blogger of the Technology & Marketing Law Blog and a Professor of Law at Santa Clara University School of Law, has been warning of the law's structural flaws and their harmful impact on society throughout the bill's incarnations and amendments. So, let's open the hood of this new law and see what is causing the lights on the dashboard to light up:

§2421A of FOSTA states,"(a) In general. Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both." 

Here is the alarming phrase "...promote or facilitate the prostitution of another person..." i.e., specifically "promote and facilitate." These are the words which give prosecutors wide latitude insofar as interpreting to what and to whom this applies. Are non-profit organization which provides consultation to sex workers criminals now? Will videos uploaded to YouTube, Vimeo, and similar sites, where users are arguing for the legalization of prostitution or just debating the subject, trigger legal charges?  With some quick thought, I could imagine scores of seemingly innocuous activity on such sites a hungry prosecutor might go after with this broad new tool afforded by FOSTA. The potential for unforeseen consequences is staggering.

And why are we channeling taxpayer dollars fighting prostitution? Are not America's prisons already filled up with too many non-violent victimless "criminals"?  This money could be better spent on fighting real criminals: the sex slave trade operators. Channeling dollars for victimless crimes directs funds away from serious crime fighting, and, as such, this bill exacerbates the problem, not solves it. 

But, Craiglist is not the only site affected by this bill. There is YouTube, Vimeo, Twitter, Facebook and all of social media, blogs, sex advice sites, sexually oriented personals sites such as Adult Friend Finder and that could be targeted by this new law. FOSTA is taking America backward, not forwards. 

And for those self-righteous souls who think this bill is doing the good work, opposition to the bill has created quite a collection of allies: legal scholars, sex trafficking victim's advocacy groups, the ACLU, the Electronic Frontier Foundation, and the Department Of Justice ( no liberal bastion there) all disagree with you. This new law will do the opposite of what it is intended to do; it merely forces sex workers underground where they will be harder to monitor and police, where they will be less safe because tools that were previously available to aid in their safety are now removed, and more importantly, it gives (overzealous) prosecutors a means of penalizing the innocent. The real culprits worthy of using taxpayer dollars for targeting, the sex slave trade leaders will also go underground, and they will also be harder to police. The most important argument against FOSTA that should be understood is that it attempts to "fix" section 230 of the CDA, but in fact, section 230 isn't broken at all and does not need to be fixed, i.e., this law is simply not necessary. This bill will probably be challenged and may be shot down by the courts on First Amendment grounds. We shall see.