Will FOSTA's Good Intentions Break the Internet?

By Brittany Wright, Former Associate Editor

The Communications Decency Act of 1996

In the early stages of the internet, the United States Congress (“Congress”) enacted the Communications Decency Act of 1996 (“CDA”) to promote the development of the internet and allow websites to be unfettered by government regulation.[1] More importantly, CDA §230 offered an immunity provision to websites acting as distributors of content.[2] Prior common law did not allow such immunities and websites were liable for third party postings.[3] Along with the rapid growth of the internet came bad actors who abused the immunities of CDA §230 to sell the services of sex trafficking victims.

Backpage.com (“Backpage”) was a free, online classified advertising website that allowed listings by third party sellers, including an adult entertainment page.[4] This page contained revealing and suggestive pictures of sex workers and escorts accompanied by offered “services.” However, among these advertisements were children and other victims forced or coerced into sex trafficking. Three victims who were age fifteen when they were advertised brought suit against Backpage.[5] Their traffickers posted advertisements on Backpage, which led the three victims to be raped collectively over 1,900 times.[6] Backpage used the immunity of CDA §230 as a defense, claiming it was not liable for user content.[7] The First Circuit agreed with Backpage,[8] however, it suggested that Congress amend CDA §230.[9] Backpage also successfully stopped state legislation criminalizing the advertisement of commercial sexual abuse of minors.[10]

In J.S. v. Village Voice Media Holdings, three minors brought a tort action against Backpage and its parent company claiming it was an active participant in their sex trafficking.[11] Backpage again moved to dismiss the case because state law was preempted by the immunity of CDA §230.[12] The plaintiffs argued that CDA §230 immunity did not apply.[13] Backpage posted rules that assisted pimps in creating advertisements for minors without detection by law enforcement.[14] The court rationalized that Backpage did not simply host the advertisements, but helped develop the content through its posting rules.[15] Therefore, the Washington Supreme Court found that CDA §230 immunity did not apply because it assisted with creating the illegal content.[16]

Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”)

Congress responded to Backpage’s evasion of liability by passing the House of Representatives’ Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”),[17] and its Senate equivalent Stop Enabling Sex Traffickers Act of 2017 (“SESTA”).[18] When the CDA was amended in 1996, Congress did not intend for websites like Backpage to be immune from liability.[19] Therefore, FOSTA amended CDA §230 so websites were liable for promoting or facilitating prostitution and for recklessly disregarding sex trafficking.[20]

FOSTA passed through Congress with an overwhelming majority in its favor.[21] However, prior to enactment, not everyone supported FOSTA. Critics argued that FOSTA discouraged internet freedom by holding websites liable for third party posts. For example, if a user posted a sex trafficking advertisement on Reddit or Facebook, the social media platform could be criminally and civilly liable. One of the two opposing Senators of FOSTA, Ron Wyden, believed that FOSTA would deter startups from creating websites without the protection of CDA §230.[22]

On behalf of the Department of Justice (“DOJ”), the Assistant Attorney General, Stephen Boyd, informed Congress that FOSTA would make it difficult to prosecute traffickers.[23] Additionally, the DOJ objected to FOSTA applying retroactively.[24] It argued that the bill violated the Ex Post Facto Clause of the Constitution by imposing punishment on acts that were legal when they occurred.[25]

Many pro-speech and pro-internet advocacy groups criticized FOSTA. The American Civil Liberties Union asserted that FOSTA would hinder online freedom of expression and innovation.[26] It argued that current laws will amply punish traffickers without the support of FOSTA.[27] The Electronic Frontier Foundation (“EFF”) identified the biggest issue for websites with FOSTA’s enactment would be the difficulty of determining whether a post created an advertisement for sex trafficking.[28] EFF also raised the same constitutional issues as DOJ.[29] It joined a lawsuit pro hac vice, challenging the constitutionality of FOSTA and sought a preliminary injunction to prevent its enforcement.[30] The court rejected the argument and dismissed the case.[31]

• The End of the Internet as We Know It?

For over twenty years, CDA §230 offered protection and immunity to websites for user content and survived much scrutiny. CDA §230’s liability immunity allowed the explosion of the internet and social media websites without fear of civil or criminal liability for user content. Although FOSTA is good intentioned, it could have unintended consequences. It will likely increase frivolous lawsuits with its vague wording.[32] Additionally, the possibility of civil and criminal liability may make the next social media phenomenon reconsider launching its new app or website that contains user content

FOSTA “poses a risk to freedom of speech on the Internet as we have come to know it while purporting to solve a problem that could be addressed in other ways.”[33] An alternative to FOSTA is to allow courts to hold bad actors liable for acting outside of the scope of CDA §230 by actively promoting or facilitating sex trafficking.[34] Before FOSTA was signed into law, the DOJ charged Backpage principals in a ninety-three count indictment.[35] Also, Backpage.com can no longer be accessed because on April 6, 2018, federal and state agencies seized it as part of an enforcement action.[36]

[1] 47 U.S.C. §§ 230 (b) (2)-(3).

[2] 47 U.S.C. §§ 230 (c).

[3] Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991); Stratton Oakmont v. Prodigy Servs., No. 31063/94, 1995 N.Y. Misc. LEXIS 229 (NY Sup. Ct. May 24, 1995).

[4] Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 16 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017).

[5] Id. at 17

[6] Id.

[7] Id. at 18.

[8] Id. at 29; see also M.A. v. Vill. Voice Media Holdings, 809 F. Supp. 2d 1041 (E.D. Mo. 2011).

[9] Jane Doe No. 1, 817 F.3d at 29.

[10] Backpage.com, LLC v. McKenna, No. C12-954 RSM, 2012 U.S. Dist. LEXIS 134216, at *3-4 (W.D. Wash. Sep. 18, 2012) (Senate Bill 6251); Backpage.com, LLC v. Cooper, No. 3:12-654, 2013 U.S. Dist. LEXIS 43852 (M.D. Tenn. Mar. 27, 2013) (Tenn. Code Ann. § 39-13-315); Backpage.com, LLC v. Hoffman, No. 13-3952 DMC-JAD, 2013 U.S. Dist. LEXIS 119811 (D.N.J. Aug. 20, 2013)(N.J. Stat. Ann. § 2C:13-10(b)(1)).

[11] J.S. v. Vill. Voice Media Holdings, LLC, 359 P.3d 714, 716 (Wash. 2015).

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 717-18.

[16] Id. at 718.

[17] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865, 115th Cong. §5 (2018) [hereinafter “FOSTA”].

[18] Stop Enabling Sex Traffickers Act of 2017 (SESTA), S. 1693, 115th Cong. (2018).

[19] FOSTA, supra.

[20] Id. at §2.

[21] Id.

[22] 164 Cong. Rec. S1849 (daily ed. Mar. 21, 2018) (Statement of Sen. Wyden); Press Release, Ron Wyden, United States Senator for Oregon, Wyden Issues Warning About SESTA (Nov. 8, 2017).

[23] 164 Cong. Rec. S1849 (letter from Assistant A.G. Stephen Boyd).

[24] Id.

[25] Id.; U.S. Const. art I, 9, cl. 3.

[26] American Civil Liberties Union, ACLU.org, ACLU Vote Recommendation To Congress: Oppose H. R. 1865 – The “Allow States And Victims To Fight Online Sex Trafficking Act” (FOSTA), (Feb. 26, 2018), https://www.aclu.org/letter/aclu-vote-recommendation-congress-oppose-h-r-1865-allow-states-and-victims-fight-online-sex

[27] Id. at p. 3.

[28] Elliot Harmon, EFF.org, Amended Version of FOSTA Would Still Silence Legitimate Speech Online, https://www.eff.org/deeplinks/2017/12/amended-version-fosta-would-still-silence-legitimate-speech-online (Dec. 11, 2017).

[29] Id.

[30] Woodhull Freedom Found. v. United States, No. 18-1552, 2018 U.S. Dist. LEXIS 163292, at *36 (D.D.C. Sep. 24, 2018).

[31] Id. at *2.

[32] See Igbonwa v. Facebook, Inc. 2018 U.S. District LEXIS 173769 (N.D. Cal. Oct. 9, 2018) (Plaintiff sues Facebook and Mark Zuckerberg because people using fake profiles harassed him on Facebook. Plaintiff used FOSTA and cited “An Act [t]o 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.” (emphasis in original)).

[33] American Civil Liberties Union, supra note 27.

[34] See e.g. J.S. v. Vill. Voice Media Holdings, LLC, 359 P.3d 714 (Wash. 2015).

[35] Press Release 18-463, Elizabeth Strange, First Assistant United States Attorney, Backpage’s Co-founder and CEO, As Well As Several Backpage-Related Corporate Entities, Enter Guilty Pleas (April 12, 2018).

[36] http://www.backpage.com/; Press Release 18-427, U.S. Dep't of Justice, Justice Department Leads Effort to Seize Backpage.Com, the Internet’s Leading Forum for Prostitution Ads, and Obtains 93-Count Federal Indictment (Apr. 9, 2018).