On February 27, the House passed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) by a 388-25 vote. Given the overwhelming support for the bill reflected in the vote, you might think this bill was largely non-controversial, but you’d be mistaken. Despite FOSTA’s vital goal of curbing online sex trafficking and protecting its victims, the bill has been opposed by groups like the ACLU, the Electronic Frontier Foundation and the Center for Democracy and Technology, as well as many tech companies and trade associations, including CompTIA. The final version of the bill weakens Section 230 of the Communications Decency Act, which protects website hosts from liability for content posted by others. Additionally, it would expose online services to liability for removing offensive material as the bill details this action as “evidence of knowledge” that a crime has been committed. The Senate is poised to vote on this bill next week.
Section 230 of the Communications Decency Act (“CDA 230”), passed in 1996, and was instrumental to allowing the open internet to thrive in its early days and grow into what it is today. CDA 230 says that “No 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.” It serves to protect websites, apps and ISPs from criminal and civil liability for the actions of their users, except under federal criminal law and intellectual property law. It has been the fuel for consumer review platforms and other user-focused platforms, not to mention social media. It also has been vital to small ISPs and edge providers.
Unfortunately, CDA 230 has come under attack in recent years because of several court cases and a subsequent Senate Permanent Subcommittee on Investigations report involving the classified advertising website Backpage.com. While no one can question the fact that Backpage is a bad actor, they sought refuge in the CDA. In 2016, the U.S. Court of Appeals for the First Circuit ruled that Backpage was protected by CDA 230 and ultimately dismissed a suit filed by a sex trafficking victim against the site. Other courts have come to similar conclusions, ruling that Backpage did not meet the definition of an “information content provider” in those cases, which would’ve disqualified them from CDA 230 protection.
The aforementioned Senate report, however, uncovered that Backpage was actively altering its users’ sex trafficking ads so as to conceal their true nature. These crucial facts had not yet been discovered when the courts ruled that Backpage was not an information content provider. Had those facts been part of the record of those particular cases, Backpage almost certainly would not have been afforded protection by CDA 230. Regardless, the report’s findings in the wake of the court decisions inspired several Senators to introduce the Stop Enabling Sex Traffickers Act (SESTA) last summer to ensure that CDA 230 would no longer protect bad actors like Backpage.
While CompTIA supported the goals of SESTA, we expressed concern over certain aspects of the bill. SESTA would amend CDA 230 to include an exception for both civil actions and state criminal prosecutions related to the federal sex trafficking law (18 U.S.C. Sec. 1591). Unfortunately, the bill contains a problematic and overly broad definition of “participation in a venture” which would mean “knowingly assisting, supporting, or facilitating a violation” of the federal sex trafficking statute. We have heard concerns from our members, law enforcement, and public interest groups about this definition and have instead advocated for an intent standard in its place.
A “knowing” standard is troubling because it could force websites to take one of two extreme paths towards content moderation: 1) websites could aggressively moderate user content to the point where they are removing anything that has a chance of putting them at risk, likely resulting in a chilling of user speech; or 2) websites could choose not to moderate their user content at all so as to avoid any chance of “knowingly facilitating” sex trafficking, essentially counteracting the purpose of the bill. The DOJ has also noted that this new definition of “participation in a venture” would “impact prosecutions by effectively creating additional elements that prosecutors must prove at trial” and “could have unintended consequences as applied by the states.”
In the view of civil libertarians and of CompTIA, there are better and more targeted ways to go after such malefactors as Backpage. It’s not clear why this specific language in SESTA (and the amended version of FOSTA) is necessary to achieve its stated goals of targeting bad actors and helping sex trafficking victims. CompTIA supports these noble goals but urges the Senate to carefully consider whether this particular bill is the best way to achieve them. There are alternatives to achieve these goals without invoking the serious unintended consequences that SESTA/FOSTA would cause.
Matthew Starr, Director, Public Advocacy, Broadband and Telecom/Privacy
