Both houses of Congress have passed Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) and in response, Craigslist has removed the Casual Encounters section of their website.
Before we talk about SESTA/FOSTA, we need to talk about Section 230 of the Communications Decency Act of 1996. The Communications Decency Act of 1996 was, according to Wikipedia, “the first notable attempt by the United States Congress to regulate pornographic material on the Internet.” I’ve left the hyperlinks in, just in case you need Internet defined.
The Communications Decency Act make it a crime for anyone who “knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”
This was eventually struck down by the Supreme Court on 1st amendment grounds.
However, there was a section of the bill that survived and has been significant: Section 230. Section 230 says “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”. Basically, this allowed sites to avoid liability for publishing content created by others. As the EFF points out, this directly led to Yelp, Amazon, Facebook, Vimeo, YouTube and a huge host of other websites.
So, now we’re at today and SESTA/FOSTA. What will SESTA/FOSTA do?
SESTA/FOSTA upends that balance, opening platforms to new criminal and civil liability at the state and federal levels for their users’ sex trafficking activities. The platform liability created by new Section 230 carve outs applies retroactively—meaning the increased liability applies to trafficking that took place before the law passed. The Department of Justice has raised concerns [.pdf] about this violating the Constitution’s Ex Post Facto Clause, at least for the criminal provisions.
The bill also expands existing federal criminal law to target online platforms where sex trafficking content appears. The bill is worded so broadly that it could even be used against platform owners that don’t know that their sites are being used for trafficking.
Finally, SESTA/FOSTA expands federal prostitution law to cover those who use the Internet to “promote or facilitate prostitution.”
Why it’s hot
Getting back to Craigslist, we can immediately see what kind of effect this may have on the Internet: forcing platforms to shut down rather than host speech that potentially infringes SESTA/FOSTA. Given that a huge amount of the Internet is conversation platforms, this could significantly effect our lives online.
PS and totally unrelated: this is a good Twitter thread that takes aim at many of tech’s favorite buzzwords and concepts:
Tech buzzwords explained:
Dark web—Onion service
Data science—statistics done by nonstatisticians
— Arvind Narayanan (@random_walker) March 22, 2018