FOSTA Passes House, Sparking Fears of New Online Censorship

WASHINGTON, D.C.—The United States House of Representatives on Tuesday, in an overwhelming and bipartisan vote, passed a new law that online civil liberties advocates say could put free speech on the internet into a deep freeze—all in the name of a crackdown on “sex trafficking.” By a 388-25 vote, the House gave a thumbs-up to HR 1865, the “Allow States and Victims to Fight Online Sex Trafficking Act,” which allows the government to prosecute internet platforms and sites, as well as for private individuals to sue those sites, over actions committed by users—even if the management of the platforms themselves are completely unaware that anything illegal or harmful is taking place. The bill now goes to the U.S. Senate after 214 Republican House members and 174 Democrats gave it an “aye.” According to the Electronic Freedom Foundation, one of the longest-standing online rights watchdog groups, the new bill will likely lead to stricter self-censorship by sites that may not be doing anything illegal, simply out of fear, while other sites may find themselves “sued out of existence.” The site that sparked the legislation, Backpage.com, was accused of hosting advertisements for illegal sex trafficking operations and even child sex trafficking, but Backpage has now ended its online adult advertising program altogether.  The new law, known as FOSTA, would extend far beyond that single site, however, affecting even straightforward news sites that include reader comment sections, according to the EFF. FOSTA effectively guts Section 230 of the Communications Decency Act, which protected online platforms from legal danger based on the actions or speech of their users—the provision that allows the internet to exist in its current form, EFF says. “The tragedy is that FOSTA isn’t needed to prosecute or sue sex traffickers. As we’ve said before, Section 230 simply isn’t broken. Right now, there is nothing preventing federal prosecution of an Internet company that knowingly aids in sex trafficking,” EFF wrote in a statement on Tuesday. “What [the law] means in practice is that social media sites such as Snapchat and Facebook, classified ad sites such as Craigslist and Backpage, chat apps, search engines, and many other communication tools could be both criminally charged and sued in civil court—by individuals or by states—anytime anyone uses them to meet someone with whom they would eventually engage in commercial sex,” explained Reason.com Associate Editor Elizabeth Nolan Brown, in a blog post Wednesday. Even the U.S. Department of Justice, while supporting the bill, warned Congress that language in FOSTA was “too broad” and possibly unconstitutional.  In fact, the DOJ pointed out, FOSTA as currently written—in the version passed Tuesday by the House—may make prosecuting actual sex traffickers more difficult by raising the number of elements that a prosecutor must prove at a trial in order to obtain a conviction. The new law also extends the prohibitions against sex trafficking even to such minor activities as using “a cell phone to manage local commercial sex transactions involving consenting adults.” In addition, according to the DOJ warning, the bill makes actions taken before the bill becomes law also illegal, even if they weren’t before, raising “a serious constitutional concern.” The U.S. Constitution prohibits Congress from passing “ex post facto” laws, meaning that acts that were previously legal can not be prosecuted as crimes after a law making them illegal takes effect. As a result, the DOJ called Section Four of the FOSTA bill clearly “unconstitutional.”  The libertarian-leaning House Liberty Caucus also called the bill unconstitutional for violating the Tenth Amendment, which courts have ruled prohibits the government from classifying prostitution as a federal crime. Due to the bill’s broad language, it outlaws online activity not merely relating to illegal sex trafficking, but to “prostitution broadly.” As both EFF and the Liberty Caucus pointed out, advertisements offering sex trafficking victims are already outlawed by the federal government and plenty of legal mechanisms exist for prosecuting sex traffickers, by the feds as well as at the state level. But FOSTA could affect sites and individuals not involved in illegal sex trafficking, or in any sex-commerce activities at all, making them “subject to censorship” or even prosecution.