Myth vs. Fact: What you need to know about SESTA/FOSTA
Congress is currently working on a critical issue: ending sex trafficking online. As the House and Senate consider two different bills — the Stop Enabling Sex Traffickers Act (SESTA) in the Senate, and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) in the House — debate around these bills has become intense and muddled by misinformation. Attempting to distinguish key facts from dangerous fictions is critical as the bills move closer to a vote.
MYTH: Unless we amend CDA 230, criminals and traffickers will enjoy full immunity from prosecution.
FACT: Despite what some critics have said, CDA 230 does not provide online platforms with blanket immunity from prosecution for any federal crimes. This bears repeating: neither Backpage nor Facebook nor any other online platform can claim immunity under CDA 230 for any violation of federal criminal law. The Department of Justice can bring a criminal action against Backpage at any time, and reports indicate it is already well underway in its prosecution of Backpage.
CDA 230 does shield some platforms from liability for state crimes and civil actions relating to the actions of their users, but this immunity is far from absolute. If a website develops or creates the content at issue — even if only in part — CDA 230 will do nothing to protect it from any civil or state criminal liability. Courts have previously found that websites like Backpage cannot claim CDA 230 protections for content they helped to develop. And with the damning evidence against Backpage outlined in a Senate report from last year, it’s hard to imagine Backpage being able to assert a CDA 230 defense in any of the lawsuits it currently faces. It’s important to note that the cases against Backpage that had been previously dismissed did not present these facts. Now that litigants are bringing lawsuits alleging that Backpage helped develop illegal content, Backpage will not be able to claim CDA 230 protections for such content. There is simply no need to amend CDA 230 to sue platforms that develop or create trafficking content.
MYTH: SESTA is a narrow solution that only puts bad actors at risk of liability.
FACT: Many people and companies in the tech world — Engine included — have expressed serious concern about SESTA precisely because it creates ambiguous and overbroad liability for websites that host user generated content. SESTA amends federal human trafficking law to potentially hold websites liable for illegal content even if they do not actually know that the content even exists. If, for example, an online dating app knows that it has previously been used to prostitute someone unwillingly, it can be held criminally liable for a future trafficking post it is unaware of, even if it has diligently removed every post it actually discovers. Holding a website criminally liable for third party speech that a website cannot address because it doesn’t know it exists is profoundly unjust. This is not a drafting mistake by the bill’s sponsors; Engine specifically asked that SESTA be amended to ensure that platforms should only be liable for content that it actually knows of, and our suggestion was expressly rejected.
MYTH: SESTA amends CDA 230 but FOSTA only amends the Mann Act.
FACT: This obvious falsehood has been floating around social media lately. FOSTA very clearly changes how CDA 230 applies to platforms by allowing state prosecutors to bring trafficking claims against platforms without any interference from CDA 230. If you want to stop trafficking, it makes sense to devote more law enforcement resources to stopping trafficking, which is precisely what FOSTA does by amending CDA 230 to allow state prosecutors to bring trafficking claims against bad actors, alongside the federal prosecutors that have always been permitted to bring criminal charges free from CDA 230’s interference. In this way, FOSTA both amends CDA 230 and preserves the law’s core principle that platforms should not receive any immunity for federal criminal law.
MYTH: Without SESTA, sex trafficking survivors cannot receive financial remediation from those who victimized them.
FACT: SESTA creates a new exception to CDA 230 to allow civil litigants to bring lawsuits against platforms accused of having generalized knowledge of trafficking activity without triggering CDA 230’s limitation on liability. While FOSTA does not contain this exception, it does contain a criminal restitution provision whereby a platform found guilty of violating trafficking laws must pay compensation to its victims. This restitution provision is mandatory, so to suggest that FOSTA offers no compensation for victims is plainly untrue. A guilty platform must provide compensation to victims under FOSTA.
Current law stays civil claims against platforms currently under investigation for trafficking offenses. So in effect, the only practical difference between SESTA and FOSTA in terms of victim remedies is that SESTA allows civil litigants to seek monetary compensation from platforms that have never been convicted of a trafficking offense and are not even under criminal investigation for a trafficking offense. If the fundamental goal of both SESTA and FOSTA is to stop online trafficking, it seems peculiar that advocates oppose FOSTA simply because it does not allow civil litigants to sue platforms that law enforcement has never even accused of trafficking violations. It’s hard to see how forcing law-abiding platforms to defend such lawsuits will have any meaningful impact on online trafficking. In this sense, opposition to FOSTA does not seem to have anything to do with actually stopping trafficking.
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