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FOSTA vs. SESTA: Preserving the Status Quo or Empowering Victims of Trafficking?

Posted: December 16, 2017

Recently, the Communications Decency Act (“CDA”) has received backlash because of the immunity courts have interpreted it to provide internet service providers who contribute to the perpetration of the horrors of human trafficking.  In response to this backlash, legislators have begun to craft bills designed to pierce the CDA’s immunity provisions and impose liability on entities violating existing federal trafficking statutes.  Legislation proposed in April of this year H.R. 1865, known as the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), aims to prohibit the “Promotion or facilitation of prostitution and reckless disregard of sex trafficking.” However, in its current form, FOSTA fails to provide adequate protections for the myriad trafficking victims who are sold for sex through online platforms each and every day.

FOSTA penalizes anyone who “uses or operates a facility or means of interstate or foreign commerce with the intent to promote or facilitate the prostitution of another person and acts in reckless disregard of the fact that such conduct contributed to sex trafficking,” in violation of current federal trafficking laws. While FOSTA may initially appear to be a step in the right direction, the bill fails to define the terms “facility” and “means,” thus, it is unclear whether an internet service provider or website could be held liable for the “facilitation” or “reckless disregard” of trafficking occurring on their platforms.

Additionally, the portion of FOSTA intended to allow civil recovery for trafficking-related damages has adopted the same problematic language as the CDA, which has been interpreted to allow internet service providers and websites to shirk liability on countless occasions.  According to the language and structure of both FOSTA and the CDA, to bring a cause of action against an internet service provider, a plaintiff or prosecutor must show that the service provider engaged in the “creation” or “development” of the content in question. This standard is extremely difficult to meet because courts have defined “content development” in an extremely limited manner.

Lastly, unlike its Senate analog, the Stop Enabling Sex Trafficking Act of 2017 (“SESTA”), FOSTA seeks only to carve out narrow exceptions to the CDA, which do not address the immunity provisions that have been interpreted to shield internet service providers from criminal and civil liability. Unlike FOSTA, SESTA aims to pierce the veil of immunity provided by the CDA. SESTA seeks to accomplish this goal by imposing liability on entities who “knowingly advertise,” “advertise with reckless disregard,” or “knowingly profit” off of third parties posting advertisements on their websites selling victims of trafficking for sexual acts.  Despite the criticism and fear-mongering it has received, SESTA only affects the liability of internet service providers who are already in violation of the existing federal sex trafficking statute. Despite SESTA’s proposed goal to eradicate the dangerous immunity being afforded to entities violating federal trafficking laws, a series of misinformed and ill-construed opinions have tainted the bill’s popularity. The CSE Institute recently sounded off about the unsubstantiated rumors clouding SESTA in an op-ed published by The Hill, titled, “Hyperbole over humanity – What SESTA’s opponents have gotten wrong.”

In conclusion, FOSTA does little to remove the roadblock the CDA has placed in the way of fighting sex trafficking where it happens most frequently: the World Wide Web. Compared to SESTA, FOSTA is weak piece of legislation that is unlikely to fulfill its intended purpose of prohibiting the “promotion or facilitation of prostitution and reckless disregard of sex trafficking.” Fighting a human rights atrocity as insidious as sex trafficking requires the precision and power afforded by SESTA, not the preservation of the status quo FOSTA will likely ensure.

To read our analysis of FOSTA click here.

To read our analysis of SESTA click here.

 

All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University.

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