FOSTA in a Legal Context

Abstract: In the spring of 2018, Congress passed the Allow States and Victims to Fight Online Trafficking Act of 2017 (FOSTA), which made changes to three federal statutory schemes: the Communications Decency Act, the Trafficking Victims Protection Act, and the Mann Act. Congressmembers claimed FOSTA would fix loopholes in those statutory schemes through which they believed websites such asBackpage.com had avoided liability for sex trafficking.More than two yearsafter its passage, only one prosecution has been brought under the new criminal provision, and FOSTA’s 230 exemptions havereceived very limited use. These provisions have, however, had widespread effects on internet companies. In this article, we put FOSTA into its legal context, exploring how its provisions relate to existing federal anti-prostitution and anti-trafficking laws. We highlight how the impact of FOSTA has been disconnected from the actual content of the legal changes, how statutory language creates broad areas of uncertainty, and how the law may be interpreted to reduce harm to sex working peoples.

By: Kendra Albert,Emily Armbruster,Elizabeth Brundige, Elizabeth Denning, Kimberly Kim, Lorelei Lee, Lindsey Ruff, Korica Simon, and Yueyu Yang.

(Authors names are alphabetical. This guide was originally produced for Hacking//Hustling, a sex worker-led collective. Substantial support was provided by Danielle Blunt and Kate D’Adamo, and other members of the Hacking // Hustling Team. Thank you to Daphne Keller, Kate D’Adamo, and Eric Goldman for their helpful comments.)

This page is for S E O, so please view the full brief PDF below with excellent foot notes (our lawyers suggest you do).

EXECUTIVE SUMMARY

In the spring of 2018, Congress passed the Allow States and Victims to Fight Online Trafficking Act of 2017 (FOSTA), which combined a House bill of the same name with provisions from a Senate bill, the Stop Enabling Sex Traffickers Act (SESTA). FOSTA as passed makes changes to three federal statutory schemes: the Communications Decency Act, the Trafficking Victims Protection Act, and the Mann Act. Congress members claimed FOSTA would fix loopholes in those statutory schemes through which they believed websites such as Backpage.com had avoided liability for sex trafficking.

More than two years after its passage, only one prosecution has been brought under the new criminal provision, and FOSTA’s 230 exemptions have received very limited use. These provisions have, however, had widespread effects on internet companies. Websites formerly used by people in the sex trades to advertise, screen clients, and share information about workplace health and safety have closed down altogether. Social media, video messaging, and other online communication platforms have changed their terms of service, categorically excluding people in the sex trades and people profiled as being in the sex trades. Although these actions by internet companies may be more restrictive than is necessary to avoid liability under the new law, much remains unclear because of the lack of judicial interpretation. What is clear is that these changes have and will continue to make working in the sex trades more dangerous, reducing workers’ access to harm reduction methods and safety information, causing more workers to work outdoors, increasing stigma, and decreasing workers’ access to online spaces that enabled organizing and self-advocating.

A. Part I: The Communications Decency Act § 230

Section 230 of the Communications Decency Act, passed in 1996, provides immunity from civil and state-level criminal liability for websites acting as publishers of content developed entirely by third parties.Section 230 was passed in part to incentivize website owners to moderate such content without exposing themselves to liability. Toward that purpose, § 230 provides immunity such that site owners cannot be held liable for the contents of speech on their platforms. Section 230 has thus shaped the internet as we know it, allowing for a balance between wide public access to internet platforms and website owners’ moderation of those platforms.

FOSTA limits § 230 immunity in three ways.First, FOSTA removes § 230 immunity for websites facing civil claims brought under 18 U.S.C. § 1595 of the federal anti-trafficking statute, the Trafficking Victim’s Protection Act (TVPA). Second, FOSTA removes § 230 immunity for websites facing state-level criminal charges for conduct that would violate 18 U.S.C. § 1591, the criminal provision of the TVPA. Third, FOSTA removes § 230 immunity for websites facing state-level criminal charges for conduct that would constitute a violation of 18 U.S.C. § 2421A (FOSTA’s newly created federal crime targeting online “promotion or facilitation” of “prostitution”2). While media reports have erroneously tied several state-level civil sex trafficking claims to FOSTA, FOSTA makes no explicit changes to state-level civil liability. FOSTA’s changes to § 230 have not yet been interpreted by courts, but internet companies have reacted dramatically, as though the changes create broad new liability.

In congressional hearings on FOSTA, lawmakers emphasized the utility of the Act to state and local law enforcement, saying that FOSTA would provide new tools that could be used to fight sex trafficking at the state level.However, it is not clear that the removal of § 230 immunity for a small set of state-level trafficking and prostitution charges will bring the promised changes.One study suggests that impediments to state and local enforcement of sex trafficking laws are largely unrelated to § 230, and a report from Villanova Law School says that FOSTA will not be of use to state-level law enforcement unless state-level anti-trafficking laws are amended. Finally, the way that internet companies have responded to the law suggests the effects of FOSTA may in fact inhibit enforcement of state-level anti-trafficking laws. Website owners responded to FOSTA’s limitation of § 230 immunity by taking down sites on which sex workers previously advertised and screened clients. Such sites were previously also used by law enforcement to identify and recover trafficking victims, and police have noted that their jobs are more difficult without those sites.

B. Part II: The Trafficking Victims Protection Act § 1591 and § 1595

18 U.S.C. § 1591 is the federal statute criminalizing sex trafficking. Passed in 2000 as part of the Trafficking Victims Protection Act, § 1591 creates criminal liability for both primary actors who engage in sex trafficking and for anyone who benefits from “participating in a venture” that engages in sex trafficking.Section 1591defines sex trafficking as engaging in certain conduct (such as “advertising”) while (1) knowingly causing a person to engage in a commercial sex act through force, fraud, or coercion, or (2) knowingly causing a person to engage in a commercial sex act while under the age of eighteen.

FOSTA amends § 1591 to define “participation in a venture” as “knowingly assisting, supporting, or facilitating” sex trafficking.This new definition raises questions as to what mental states prosecutors must show for which conduct in order to prove a “participation in a venture” violation. That is, how much must a website owner know about their site’s involvement in trafficking in order to be prosecuted under this new definition of “participation in a venture?” While Congress seemingly meant to broaden § 1591, a plain language reading of the amendment could be seen as narrowing the scope of the law.

Congress claimed that this amendment was necessary because courts lacked clarity in applying the “participation in a venture” provision and suggested that the new definition would make it easier to prosecute owners of websites that facilitate sex trafficking.The Department of Justice (DOJ), however, wrote a letter to Congress prior to FOSTA’s passage warning that this amendment would actually make prosecutions more difficult by adding new elements that would have to be proved at trial. How courts will interpret the amendment remains to be seen.

In addition to the criminal § 1591, the TVPA contains a civil provision, 18 U.S.C. § 1595, which allows victims of violations of § 1591 to sue their traffickers or anyone who participated in a venture through which they were trafficked. FOSTA amends § 1595 by adding a new parens patriae civil right of action so that states’ attorneys general may also bring lawsuits for violations of § 1591 on behalf of victims.

The parens patriae cause of action allows states’ attorneys general to sue a person who violates § 1591 if “the attorney general of a state has reason to believe that an interest of the residents of that state has been threatened or adversely affected” by the violation. Parens patriae suits will be limited by Article III standing requirements; that is, attorneys general will have to show that state residents experienced actual harm that is both caused by a specific act of trafficking and able to be redressed by a court. Questions remain as to how such harm and causality can be shown. For example, must the harm claimed in a parens patriae suit be limited to that defined in § 1591 (i.e. force, fraud, or coercion of state residents) or could a harm such as lowered property values give rise to a parens patriae claim? This and other questions make the breadth of the parens patriae provision unclear.

C. Part III: The Mann Act § 2421A

FOSTA amends the Mann Act to create a new federal crime, 18 U.S.C. § 2421A, prohibiting the owning, operating or managing of an interactive computer service, such as a website, with the intent to promote or facilitate the prostitution of another person.Section 2421A(b) defines two aggravated violations providing higher penalties for conduct that violates 2421A(a) while also (1) promoting or facilitating the prostitution of five people or more, or (2) recklessly disregarding that such conduct contributed to sex trafficking in violation of § 1591. Section 2421A(c) provides a civil right of action allowing any person injured by an aggravated violation to sue the website owner, manager, or operator who committed that violation.

The terms “promote,” “facilitate,” and “prostitution” are undefined in the statute, and sex workers’ rights organizations have expressed fear that this provision might criminalize the sharing of harm reduction materials, client blacklists, and other health and safety information. One district court, in the case Woodhull vs. United States, interpreted the provision narrowly, stating that § 2421A does not cover online sharing of harm reduction information. This decision was reversed by the D.C. Court of Appeals, however, which stated that owning a website on which sex workers did not advertise but shared sex work-related information might be proscribed by § 2421A.

To date, the Travel Act, not the Mann Act,has been the law most frequently used to federally prosecute the owners and managers of websites that advertise adult services. Arguments made by the DOJ in its prosecution of Backpage imply that it believes violations of § 2421A might be more difficult to prove than violations of the Travel Act. If so, it is likely that the DOJ will continue to favor the Travel Act over § 2421A, limiting the impact of this FOSTA provision.

D. Part IV: Significance of FOSTA’s GAO Reporting Requirement

In addition to the statutory changes, FOSTA contains a U.S. Government Accountability Office (GAO)reporting requirement that will track the amount and nature of damages awarded under 2421A(c), and the amount of mandatory restitution that is awarded to victims of violations of § 2421A.According to one Congress member, this report will provide an assessment of FOSTA’s efficacy. To the date of this writing, the damages in civil claims and mandatory restitution awarded under FOSTA by courts remains zero.

E. Part V: The Ex Post Facto Clause

Finally, as written, FOSTA applies to conduct committed before its enactment. The DOJ and others have suggested that this may violate the Constitution’s ex post facto clause. The Woodhull case brings a pre-enforcement challenge to FOSTA, making ex post facto and other constitutional claims. None of those claims have yet been analyzed by either the district court opinion or the D.C. Circuit court opinion, which only assess whether the plaintiffs have standing to bring the claims.

Introduction to FOSTA

The Allow States and Victims to Fight Online Trafficking Act of 2017 (FOSTA)was passed with the intent to reduce rates of trafficking through increased regulation and penalization of websites. FOSTA materially limits the scope of the Communications Decency Act (CDA) for the first time since the CDA’s enactment over two decades ago. Propelled by a growing public concern with sex trafficking, FOSTA also amends the Trafficking Victims Protection Act (TVPA) and creates a new federal crime under the Mann Act. Walking through the provisions of FOSTA one by one, we show that despite Congressional intent to reduce trafficking through seemingly seismic changes and significant reactions from digital platforms, the actual legal effect of FOSTA’s 230 changes remains unclear and may even be insubstantial.

While the full legal effect of FOSTA is unclear, the Act has already had dangerous practical consequences for people in the sex trades through its impact on website owners. Prior to FOSTA’s passage, critics of the legislation reasonably feared that websites would interpret the relevant civil and criminal statutes broadly and err on the side of censorship in order to protect themselves from liability. This is precisely what happened, with websites like Craigslist shutting down their adult entertainment sections altogether.3Other sites, including Google Drive, have removed content, blocked users, and closed forums that were used by sex workers to exchange warnings about dangerous clients. Notably, when this happens, website users have little legal recourse.Companies like Google and Craigslist are private actors, and their removal of user content usually does not constitute a First Amendment violation.

The result is that people in the sex trades, who work in legal, semi-legal, and criminalized industries, have been forced into dangerous and potentially life-threatening scenarios. Many no longer have access to affordable ways to advertise5and have returned to outdoor work or to in-person client-seeking in bars and clubs, where screening is necessarily more rushed than it is online,6and where workers are more vulnerable to both clients and law enforcement.7These effects have been most impactful on sex workers facing multiple forms of marginalization,including Black, brown and indigenous workers, trans workers, and workers from lower socio-economic classes who are prohibited from or unable to access more expensive advertising sites that may not be as impacted by FOSTA. For workers who were unable to access pricier sites, Backpage provided an avenue for them to receive the same safeguards others had through online advertising.

Loss of access to online platforms has also meant losing access to information-sharing networks used to discuss safer working methods and to create blacklists of bad clients.8Third-party managers, some of whom are dangerous or exploitative, have seen the present circumstances as an opportunity to regain control over sex workers whose capacity to find clients independently has decreased. Similarly, previously blacklisted clients, believing sex workers to be vulnerable and desperate for work because of the loss of these platforms, have begun harassing these workers.10These represent only a handful of ways in which the FOSTA amendments have already made sex work more dangerous: the full scope of the repercussions remains unknown.

We analyze the amendments FOSTA makes to other civil and criminal statutes, predicting the likely legal effect and assessing the practical impact of each provision. Part I assesses the FOSTA amendments to § 230 of the Communications Decency Act in light of the history of the CDA and explains the impact of these amendments to state level civil and criminal liability. Part II turns to FOSTA amendments to § 1591 and § 1595 of the Trafficking Victims Protection Act, specifically addressing the changes to the definition of “participation in a venture” and the creation of a parens patriae cause of action. Part III breaks down the new federal crime created at § 2421(A) of the Mann Act. Part IV explains the significance of the GAO reporting requirements of FOSTA, and Section V looks to additional relevant and potentially problematic provisions of FOSTA, such as the ex post facto clause.

Ultimately, we conclude that, though FOSTA makes significant changes to each of these statutes, the actual legal effect of those changes may not be as monumental as advocates presumed. Despite this, the practical impact of FOSTA has been to create more dangerous working conditions for people in the sex trade. Furthermore, though the stated purpose of FOSTA was to reduce trafficking, the legal effects do not in fact contribute to a reduction in trafficking and may even make it more difficult to identify traffickers and find trafficking survivors.

PART I: THE COMMUNICATIONS DECENCY ACT §230

FOSTA amends § 230 of the CDA for the stated Congressional purpose of making it easier for prosecutors and others to hold websites criminally and civilly liable when those websites are used to facilitate prostitution or sex trafficking. The significance of these changes to § 230 are best understood within the context of the history and purpose of the CDA broadly, and of § 230 specifically. Since its enactment, § 230 has been considered an important safeguard for free speech online and has arguably shaped the development of the internet as it exists today. Accordingly, it has rarely been subject to change or limitation, making FOSTA’s wide reaching amendments unprecedented.

The CDA, enacted as a subset of the Telecommunications Act of 1996, emerged as a Congressional response to courts’ attempts at navigating the new internet era. A few years prior to the CDA’s enactment, two pivotal cases had addressed the role of websites in hosting third-party content containing illegal material. Their outcomes disincentivized websites from moderating any such content. First, in the 1991 case Cubby, Inc. v. CompuServe, Inc., the U.S. District Court for the Southern District of New York found that a website database owner was not liable for comments containing illegal content that were posted on his website because he did not review or know about the content. Extending this reasoning, a New York state trial court, in Stratton Oakmont, Inc. v. Prodigy Servs. Co., found that a website owner was liable for comments posted to his site because he had previously moderated and removed other offensive content from the site. The court distinguished Prodigy from CompuServe on the basis of Prodigy’s involvement in reviewing and removing content. Following these cases, a website owner that actively moderated a website could be exposed to liability for any third-party illegal content posted therein. In order to avoid liability, website owners ceased editing user-generated content altogether.

The purported effect of this legal rule was an increase in “indecent” or “patently offensive” content online. Of particular concern to Congress was the supposed increase in minors’ exposure to such content. In response, Congress passed the CDA with provisions aimed at both curtailing and protecting minors from “offensive” online content and encouraging self-regulation by website owners toward this end. Most of the CDA’s provisions were struck down by the Supreme Court in Reno v. ACLU as unconstitutional violations of the First Amendment.16However, § 230, the provision intended to rectify the Cubby and Prodigy holdings, was not at issue in the case and so remained law.

Of particular relevance to FOSTA is § 230(c) providing protection for “Good Samaritan Blocking and Screening of Offensive Material.” Section 230(c)(1) states in pertinent part that: “[n]o provider or user of an interactive computer service [ICS] shall be treated as the publisher or speaker of any information provided by another information content provider[ICP]. In other words, § 230(c)(1) provides immunity to a defendant when “(1)the defendant is a ‘provider or user of an interactive computer service’; (2) the claim is based on ‘information provided by another information content provider’; and (3) the claim would treat [the defendant] ‘as the publisher or speaker’ of that information.” Thus, the §230 immunity could be defeated by proving either that the defendant is an ICP with regard to the content at issue, or that the defendant is not treated as the publisher or speaker of that content.

Section 230(c)(2) further specifies that providers and users are protected from civil liability for self-regulation or making “good faith” efforts to “restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Even prior to FOSTA’s passage, the immunity under § 230(c)(2) explicitly did not extend to violations of federal criminal law.

Section 230 was designed to balance the government’s interests in (1) promoting free speech, particularly on online forums,(2) encouraging self-regulation among interactive computer services by enabling them to monitor their sites without fear of liability,and (3) fostering economic growth online. Court interpretations applying § 230’s protective provisions have been pivotal in shaping the development of the internet as it exists today, and subsequent limitations on scope imposed by FOSTA are likely to further change the internet and shape it going forward. In fact, we have already seen some of these effects.

A. Application of § 230 Pre-FOSTA

Courts have generally interpreted § 230(c) as creating broad immunity from civil liability for third-party postings (what § 230 calls “information provided by another information content provider”). In an early case, Zeran v. America Online, Inc., the Fourth Circuit found AOL exempt from civil liability for defamatory content on its site—even after AOL was given notice of the defamatory content. The court held that § 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service,” and reasoned that liability triggered by receipt of notice (or “knowledge” of the illegal content) would disincentive websites from monitoring their content, undermining one of the purposes of § 230. Courts subsequently extended Zeran to immunize website owners who interact in varying degrees with the content on their sites. In fact, there have been over 300 cases interpreting § 230, and so far, all “but a handful . . . find that a website is entitled to immunity from liability.”

Nonetheless, a series of cases have restricted the otherwise expansive scope of § 230. One of the most impactful, Fair Housing Council of San Fernando Valley v. Roommates.com, LLC., placed a critical limitation on § 230 by distinguishing between content a website passively displays and content a website creates, in whole or in part. The defendant in the case was Roommates.com—a website that matched individuals searching for and offering spare room rentals. The suit alleged that the site violated fair housing codes by publishing its users’ discriminatory preferences.

In distinguishing between Roommates’ conduct protected by § 230 and conduct outside § 230’s scope, the court looked to whether or not the site had played a part in “developing” the allegedly discriminatory content. It held that, “[b]y requiring subscribers to provide the [discriminatory] information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate [became]much more than a passive transmitter of information provided by others; it[became]the developer, at least in part, of that information.” As such, Roommates was not entitled to § 230 immunity related to that content. In contrast, Roommates played no part in the development of content that was placed in an “additional comments” section on their site, but merely published what was generated by third parties; for this content, then, Roommates was entitled to § 230 immunity.

After Roommates, the scope of § 230 immunity turns on whether an ICS engages in the “creation or development” of content on their site and whether the ICS “contributes materially to the alleged illegality of the conduct.” If so, the ICS becomes an ICP and is exempt from § 230 immunity. If, however, the ICS’s actions do not constitute “creation or development” they will be granted § 230 immunity. Notably, “[a] website operator can be both a service provider [ICS] and a content provider [ICP]. . . . Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content.

The expansive scope of § 230 has been critical to the development of the internet. Protecting websites from civil liability for third-party content the sites had no role in developing has enabled those with fewer resources to participate in the expanding online world without moderating every post. Section 230 has also been lauded for its protection of free speech, and for fostering both forums for open discussion and free markets.41Consequently, § 230 has deterred websites from participating in the development of illegal content themselves while not deterring them from attempting to moderate the content they host. This has contributed toward the goal that the internet remain a platform for public information-sharing and uninhibited discussion.

Despite (or perhaps because of) the decisive role § 230 has played in shaping the internet, it has regularly been subject to criticism.In particular, concerns that courts have interpreted § 230 to grant broad immunity to websites involved in sexual exploitation were a driving force in the passage of FOSTA. Most influential was the case Jane Doe No. 1 v. Backpage.com, LLC., in which three women brought claims under 18 U.S.C. § 159543that they had been sex trafficked on Backpage as minors.44There the U.S. Court of Appeals for the First Circuit held that § 230 protected Backpage from civil liability because the underlying allegations treated the website as the “publisher or speaker” of third-party content.

Plaintiff-appellants in the case argued that Backpage was not acting as a passive publisher of third-party content.46Specifically, appellants alleged that Backpage was liable not solely for hosting advertisements of the minors, but for its own actions which made it easier to advertise trafficked persons. These actions, appellants suggested, fell outside a publisher’s purview and constituted “participation in a venture which that person knew or should have known has engaged in an act”47of sex trafficking, in violation of the Trafficking Victims Protection Act (TVPA). The court disagreed, finding that Backpage’s conduct was typical of a publisher, and so § 230 immunity applied.48Notably, the plaintiff-appellants argued only that Backpage was not a publisher, they did not argue that Backpage had played a role in developing the ads in question, which would have precluded § 230 immunity under existing case-law.49After the First Circuit ruling, but prior to FOSTA’s enactment, two federal district courts found that Backpage’s actions did constitute “development,” making Backpage an ICP. The courts subsequently denied Backpage’s motions to dismiss under § 230.

Although Jane Doe v. Backpage was characterized by advocates of FOSTA as epitomizing the consequences of the broad scope of § 230 immunity, the actions actually immunized by § 230 before FOSTA’s amendments were not particularly expansive in this context. Jane Doedid hold that Backpage was immune from the civil provisions of the TVPA, but even before FOSTA, Backpage would not have been granted immunity for any federal criminal violations of the TVPA, which fall outside § 230 protection. Furthermore, had Backpage been found to have “developed,” in part or in whole, any of the trafficked women’s advertisements, as new evidence in subsequent cases suggests,53their conduct would have been equally outside § 230 protection. Finally, the traffickers who themselves developed and posted the advertisements would still have been liable under both the criminal and civil provisions of the TVPA. Nonetheless, criticism interpreting § 230caselawas having granted broad immunity for Backpage was a primary instigator of the FOSTA amendments.

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