On March 21, the Senate passed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA).
Although the president has yet to sign the legislation, the bill’s effects are already being felt. FOSTA (known in a previous form as SESTA, or the Stop Enabling Sex Traffickers Act) amends Section 230 of the Communications Decency Act, which provides tech companies immunity from most liability for publishing third-party content. Currently, only federal criminal law, intellectual property laws, and the Electronic Communications Privacy Act fall outside the immunity provision. In the years since its enactment in 1996, Section 230 has been characterized as “the Magna Carta of the internet,” as Alan Rozenshtein wrote recently on Lawfare. For its supporters, Section 230 immunity is credited with enabling the growth of online platforms as safe-havens for speech, even speech that platforms would be responsible for if it was expressed offline.
For the first time in twenty years, FOSTA carves out an additional statutory exception for that immunity. The idea is that online platforms should face the same liability for enabling illegal sex-trafficking, as offline outlets do. According to the bill’s oddly-phrased “Sense of Congress” introduction, Section 230 was “never intended to provide legal protection to websites . . . that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” That provision continues, “[i]t is the sense of Congress that websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.”
FOSTA then goes on to provide that technology companies will not be shielded from civil liability if they knowingly assist, support, or facilitate advertising activity that violates federal sex-trafficking law, specifically 18 USC 1591. (Section 230 does not immunize platforms from federal criminal liability.) Currently, advertisers are liable under Section 1591(a)(2) if they knowingly benefit from outlawed ads. FOSTA not only carves out an exception to Section 230 immunity for violations of Section 1591, but it also redefines what constitutes a Section 1591 violation to include “knowingly assisting, supporting, or facilitating” advertising.
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