Controversial Bill Approved by the House Will Change Longstanding Internet Laws
Sex trafficking is a form of modern-day slavery where individuals are engaged in commercial sex through force, fraud, or coercion.[1] The supply and demand of sex trafficking has increased in recent years, partially due to the Internet, and the ease with which traffickers and customers can complete a transaction. Traffickers utilize the Internet in various ways, including social media, dating sites, and online advertisements, to market trafficked victims.[2]
On February 27, 2018, the House of Representatives passed a controversial sex trafficking bill by a vote of 388 to 25 that will soon be put before the Senate.[3] The bill, H.R. 1865, Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), is sponsored by Congresswoman Ann Wagner and was amended to include excerpts from Congresswoman Mimi Walters’ S. 1693, the Stop Enabling Sex Traffickers Act (“SESTA”).[4] This bipartisan package clarifies section 230 of the Communications Decency Act (“CDA”), and will allow sex trafficking victims, prosecutors, and state attorneys to sue websites and its owners with civil causes of action for “knowingly” publishing advertisements and content linked to sex trafficking.[5]
The CDA was enacted by Congress in 1966 in a noble attempt to regulate access to pornographic material on the Internet. It creates a criminal cause of action against those who knowingly transmit “obscene” or “indecent” messages to individuals under 18 years old, and prohibits knowingly sending or displaying a “patently offensive” message containing sexual or explicit activities to a minor.[6] Further, section 230 says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[7] This section has been widely interpreted to mean that operators of Internet sites will not be seen as publishers and are therefore not legally liable for the content shared by third parties using their sites.[8]
Since the FOSTA amendment was proposed, there has been intense backlash by many civil rights groups and free speech advocates. Advocates argue that the amended FOSTA bill will freeze innovation and competition among Internet companies, forcing online platforms to censor their users by silencing them in violation of the First Amendment.[9] These advocates believe the bill would increase criminal and civil liability at federal and state levels and would make section 230 apply retroactively, where a platform may be prosecuted for failing to comply with the law before it was passed.[10] Other advocates argue that the bill will “open[] the censorship floodgates,” and is “the worst thing to happen to the internet since the death of net neutrality.”[11]
The Senate is likely to vote on the bill this week. If it is passed by Congress, it will then be put to President Trump, who is anticipated to sign it because his daughter, Ivanka Trump, has voiced her support for the bill.[12] Regardless of which side of the debate you are on, this bill is historic: to some, it is a much-needed protection of human rights, and to others, it is an infringement on our First Amendment rights.
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