Stop Enabling Sex Traffickers Act

The Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) are the U.S. Senate and House bills that as the FOSTA-SESTA package became law on April 11, 2018. They clarify the country's sex trafficking law to make it illegal to knowingly assist, facilitate, or support sex trafficking, and amend the Section 230 safe harbors of the Communications Decency Act (which make online services immune from civil liability for the actions of their users) to exclude enforcement of federal or state sex trafficking laws from its immunity. Senate sponsor Rob Portman had previously led an investigation into the online classifieds service Backpage (which had been accused of facilitating child sex trafficking), and argued that Section 230 was protecting its "unscrupulous business practices" and was not designed to provide immunity to websites that facilitate sex trafficking.

Stop Enabling Sex Traffickers Act
and
Allow States and Victims to Fight Online Sex Trafficking Act
Long titleSESTA: "To amend the Communications Act of 1934 to clarify that section 230 of that Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sex trafficking."

FOSTA: "A bill to amend the Communications Act of 1934 to clarify that section 230 of such Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking, and for other purposes."
Acronyms (colloquial)FOSTA-SESTA
Enacted bythe 115th United States Congress
Legislative history

SESTA received bipartisan support from U.S. senators, the Internet Association, as well as companies such as 21st Century Fox and Oracle, who supported the bill's goal to encourage proactive action against illegal sex trafficking. SESTA was criticized by pro-free speech groups for weakening section 230 safe harbors, alleging that it would make providers become liable for any usage of their platforms that facilitates sex trafficking, knowingly if they moderate for such content, and with reckless disregard if they do not proactively take steps to prevent such usage.

SESTA was incorporated into the House version of the bill with the "Allow States and Victims to Fight Online Sex Trafficking Act" (FOSTA) and the joint proposal was known as the "FOSTA-SESTA package". On February 27, 2018, the FOSTA-SESTA package was passed in the House of Representatives with a vote of 388–25.[1] On March 21, 2018, the FOSTA-SESTA package bill passed the Senate with a vote of 97–2, with only senators Ron Wyden and Rand Paul voting against it.[2] The bill was signed into law by President Donald Trump on April 11, 2018.[3][4]

Overview

The Section 230 safe harbor was established in 1996, making the providers of "interactive computer services" immune from liability under civil laws for the actions of their users if they publish objectionable content (such as defamatory and obscene content). Section 230 has been considered a key piece of internet legislation, as operators of online services that handle user-generated content are not liable for civil wrongs committed by their users, if the service was not directly involved in the offending content. These provisions do not apply to criminal or intellectual property law.[5] The Stop Advertising Victims of Exploitation (SAVE) Act made it illegal to advertise sex trafficking, knowingly benefit financially from participation in a venture that advertises sex trafficking, and to engage in activities related to sex trafficking besides advertising, knowingly or in reckless disregard of the fact that sex trafficking is involved.[6][7]

In an op-ed, Portman cited numbers from the National Center for Missing and Exploited Children, which showed an 846% increase in reports of suspected child sex trafficking to the organization from 2010 to 2015. He attributed this largely to Backpage, an online classifieds service that had been accused of knowingly accepting ads which facilitated child sex trafficking, and filtered specific keywords in order to obfuscate it. The site had faced legal disputes, and a government investigation spearheaded by Portman.[8] Portman argued that Section 230 was being used to "protect its unscrupulous business practices", and that Section 230 protections "were never intended to apply – and they should not apply – to companies that knowingly facilitate sex trafficking."[9] Attempts to stop Backpage and similar sites via the court system failed, as the Courts affirmed these sites has protection via Section 230, and those seeking action failed to enjoin the U.S. Supreme Court to consider the matter.[10]

The Stop Enabling Sex Traffickers Act amends Section 1591 of Title 18 of the United States Code to add a definition of "participation in a venture", as knowingly assisting, facilitating, or supporting sex trafficking.[11] It amends section 230 of Title 47 of the United States Code to state that it is policy to "ensure vigorous enforcement of Federal criminal and civil law relating to sex trafficking", and that section 230 does not impair enforcement of "any State criminal prosecution or civil enforcement action targeting conduct that violates a Federal criminal law prohibiting [sex trafficking]", nor "impair the enforcement or limit the application of section 1595 of title 18, United States Code."[7][12]

Reaction

Support

Congress

SESTA was co-sponsored by 27 Democratic and Republican senators; early supporters of the bill included members of the Permanent Subcommittee on Investigations, which is chaired by Portman and led the aforementioned investigation into Backpage.[13] Representative Mimi Walters stated that websites such as Backpage have become the "storefronts" for the modern-day slave trade and that the FOSTA-SESTA legislation will help prosecutors "crack down on websites that promote sex trafficking" as well as provide recourse for victims.[14] Representative Carolyn Maloney (D-NY) stated her support for the FOSTA-SESTA package, believing that "Congress must act to clarify that Section 230 of the Communications Decency Act was never meant to shield sex traffickers."[14]

Advocacy groups

The New Jersey Coalition Against Human Trafficking called the FOSTA-SESTA package a "groundbreaking bill" in the effort to bring justice to victims.[14] The FOSTA-SESTA package is also supported by other members of advocacy groups such as ECPAT Executive Director Carol Smolenski, Operation Texas Shield founder John Clark, and Faith & Freedom Coalition Executive Director Timothy Head.[14]

Corporations

21st Century Fox and Oracle Corporation have pledged support for the bill; Oracle vice president Kenneth Glueck stated that it would "establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking".[15] Fox stated that "everyone that does business in this medium has a civic responsibility to help stem illicit and illegal activity. While it is impossible to formulate laws to govern every possible situation, [the] legislation is a rational and measured effort to deal with a tragic and pernicious problem that is global in scope."[16]

Criticism

U.S. Department of Justice

Writing on behalf of the U.S. Department of Justice, Assistant-Attorney General Stephen Boyd addressed Chairman of the House Judiciary Committee, Bob Goodlatte, expressing concerns that provisions of the bill would make it even harder to prosecute sex traffickers. Additionally they expressed concerns that certain provisions would violate the Constitution's ex post facto clause and thus be unconstitutional.[17]

Congress

Opposition to the bill was voiced by members of Congress as well. In an official statement Senator Ron Wyden stated, "I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals, that it will favor big tech companies at the expense of startups and that it will stifle innovation."[18] The only other Senator to oppose the bill was Rand Paul.[2]

Advocacy groups

SESTA has been criticized by pro-free speech and pro-Internet groups including the Center for Democracy and Technology, Electronic Frontier Foundation, the ACLU,[19] Engine Advocacy, the Sex Workers Outreach Project (which described SESTA as a "disguised internet censorship bill"),[20] and the Wikimedia Foundation,[21] who argue that the bill weakens the section 230 safe harbors, and places an unnecessary burden on internet companies and intermediaries that handle user-generated content or communications.[15] EFF staff attorney Aaron Mackey told the Washington Examiner that under SESTA, service providers would be required to proactively take action against sex trafficking activities, and would need a "team of lawyers" to evaluate all possible scenarios under state and federal law (which may be financially unfeasible for smaller companies).[13] Online sex workers argued that SESTA would harm their safety, as the platforms they utilize for offering and discussing sexual services (as an alternative to street prostitution) had begun to reduce their services or shut down entirely due to the threat of liability under SESTA.[22][23][24] Others have demonstrated how the platforms that still facilitate sex work have increased their prices and engaged in more exploitative practices, leaving sex workers with limited bargaining power.[25] Social media hashtag campaigns emerged to advocate against the bill for these reasons, such as #LetUsSurvive and #SurvivorsAgainstSESTA.[26][27]

In its original form, the bill defined "participation in a venture" as "knowing conduct by an individual or entity, by any means".[11] The EFF and the Internet Association argued that any online service could theoretically be used to "facilitate" sex trafficking, and that the law would have a chilling effect on voluntary moderation of websites (as encouraged by the "Good Samaritan provision" of section 230, which states that providers are not liable on account of "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be [objectionable]"),[28] as even the mere discovery of sex trafficking content could constitute knowing conduct of participation in a venture, and that dismissing the risk could constitute reckless disregard.[15][29][30] The Senate voted down a proposed amendment by Ron Wyden, which would have clarified the law to ensure that moderation does not contribute to liability.[31][32] The Consumer Technology Association stated that SESTA was well-intentioned but could "create a trial lawyer bonanza of overly-broad civil lawsuits".[15]

The EFF further argued that websites which knowingly facilitate sex trafficking were already liable per Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, which ruled that section 230 immunity does not apply if an online service was directly involved in the creation of content that violates civil law.[29] Exposure of websites to liability under state trafficking laws was also considered a contradiction of 230, as it was designed to help protect service providers from varying state civil laws.[29] In late March 2018 and early April 2018, following the bill's passage but prior to its implementation, courts in Massachusetts and Florida made rulings affirming that Backpage was liable for facilitating sex trafficking, because its practice of intentionally removing keywords pertaining to minors made it a provider of content subject to liability, as opposed to an interactive computer service.[33][34]

The Internet Association stated that it would "support targeted amendments to the Communications Decency Act that would allow victims of sex trafficking crimes to seek justice against perpetrators", but initially criticized SESTA for using terms which were undefined or broadly-interpreted in case law, and argued that it would "introduce new legal risk not just for internet services that do not knowingly and intentionally facilitate illegal conduct, but also create risk for an incredibly broad number of innocent businesses by expanding the notion of contributory liability."[30] The Internet Association pledged support for SESTA on November 3, 2017 after an agreement to clarify portions of it; in particular, the definition of "participation in a venture" was amended to replace "knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation" with just "knowingly assisting, supporting, or facilitating a violation".[11]

It has been suggested that SESTA could be used as a model for future exclusions from Section 230 immunity, such as copyright infringement (especially with its support from major film studios), and terrorism content.[15][16][13][35]

Corporations

Initially The Internet Association (which represents Facebook, Google, Microsoft, and other tech companies) voiced opposition to the bill. However, after coming to a compromise on the wording of one section, they withdrew their opposition. The proposed bill originally defined participation as “knowing conduct, by an individual or entity, by any means, that assists, supports or facilitates a violation of sex trafficking laws" and was amended to “knowingly assisting, supporting, or facilitating a violation.”[36]

FOSTA-SESTA package

On February 21, 2018, representative Ann Wagner (R-MO) issued a press release stating that the bill she sponsored, H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA),[37] would be put on the House floor the week of February 26, 2018.[14] According to Wagner, the bill was expected to be considered with an amendment from representative Mimi Walters (R-CA) that included victim-centered provisions from SESTA.[14] Like SESTA, the FOSTA-SESTA package would clarify that section 230 of the CDA does not prevent states and victims of sex trafficking from pursuing a course of action against interactive computer service providers, such as Backpage.[14] Wagner said she believed that "[o]nline trafficking is flourishing because there are no serious, legal consequences" for websites that profit from sex trafficking and that the "FOSTA-SESTA package will finally give prosecutors the tools they need to protect their communities and give victims a pathway to justice."[14]

Response

Craigslist ceased offering its "Personals" section within all US domains in response to the bill's passing, stating "Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services."[38] Furry personals website Pounced.org voluntarily shut down, citing increased liability under the bill, and the difficulty of monitoring all the listings on the site for a small organization.[39]

The effectiveness of the bill has come into question as it has purportedly endangered sex workers and has been ineffective in catching and stopping sex traffickers.[40] Opponents have claimed the law doesn't directly address issues that contribute to sex trafficking, but instead has drastically limited the tools available for law enforcement to seek surviving victims of sex trade.[41][42] The sex worker community has also been severely affected by the law, with sex workers losing access to online safety resources, facing financial hardship, and even going missing or dying because of the law.[43] Similar consequences of the law's enactment have been reported internationally.[44]

A number of policy changes enacted by the popular social networks Facebook and Tumblr (the latter having been well known for having liberal policies regarding adult content) to restrict the posting of sexual content on their respective platforms have also been cited as examples of proactive censorship in the wake of the law, and a wider pattern of increased targeted censorship towards LGBT communities.[45][46][47]

On the 28th of June 2018, the Electronic Frontier Foundation (EFF) filed a Federal lawsuit challenging the law (Woodhull Freedom Foundation, et al. v. U.S.), representing the Internet Archive, Human Rights Watch, the Woodhull Freedom Foundation, Eric Koszyk, and Alex Andrews, seeking to have the law declared unconstitutional and seeking to have an injunction against it being enforced.[48][49] The lawsuit cites Reno v. American Civil Liberties Union (where all but Section 230 of the Communications Decency Act was invalidated) and the invalidation of the Child Online Protection Act as precedent, arguing that the combined FOSTA/SESTA law is too broad and poorly-worded and constitutionally defective in the same way those acts were.

On September 24, 2018, Judge Richard J. Leon dismissed the EFF's constitutional challenge against SESTA for lack of standing.[50] The EFF appealed the dismissal.[51] The District of Columbia Court of Appeals reversed the lower court ruling on the matter of standing in January 2020, agreeing that the plaintiffs had shown a likely chance that FOSTA/SESTA's limitations may have impacted the plaintiff's rights to freedom of speech.[52]

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References
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