Online Sex Trafficking Act Passes House

Makes social media sites, users, potentially liable for facilitating, promoting conduct
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The Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) passed the House Tuesday (Feb. 27), raising concerns among tech companies and edge players. The vote was 388 to 25. 

The bill makes edge providers potentially liable for sex trafficking on social media sites.

The bill, which included the Senate's Stop Enabling Sex Traffickers Act (SESTA) as an amendment, now goes to the Senate, but with plenty of concerned commenters weighing in.

The bill makes it clear that social media nets and their users are subject to federal and state criminal and civil laws relating to the sexual exploitation of kids and sex trafficking. "Because of protections provided to 'interactive computer services' by the Communications Decency Act (CDA), it has been challenging to hold bad-actor websites accountable criminally," the bill report says.

Currently, the CDA (sec. 230) says that "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 [CDA 230]."

Sec. 230 allows companies to moderate a network without being responsible for all the content posted on it.

Backers say the bill "allow victims of sex trafficking to seek justice against websites that knowingly facilitated the crimes against them; eliminates federal liability protections for websites that assist, support, or facilitate a violation of federal sex trafficking laws; and enables state law enforcement officials, not just the federal Department of Justice, to take action against individuals or businesses that violate federal sex trafficking laws."

Edge providers and computer companies are worried that broad liability for user content strikes at the heart of the social media business model, including by leaving it unclear exactly what will be defined as facilitating illegal conduct and what constitutes reckless disregard or promotion of sex trafficking.

Related: CCIA Warns About Online Liability Law

Backpage is one of the sites targeted by the bill, but Craigslist and eBay ads also are cited in the bill report.

Among those with concerns about the bill are the Department of Justice and the White House. Though they generally support the legislation, they say it is too broad in some places and could use a little narrowing.

Rep. Goodlatte (R-Va.), chairman of the House Judiciary Committee, said the bill had been rushed. "Though I applaud my colleague’s dedication to this issue," he said, "I have concerns about [the] amendment which states that the provisions of the bill apply regardless of whether the conduct alleged occurred or is alleged to have occurred before on or after such date of Enactment. Had regular order been followed the Judiciary Committee would certainly have fixed this issue, which I believe could subject this legislation to a constitutional challenge under the Ex Post Facto clause. A concern shared by the Justice Department."

Consumer Technology Association President Gary Shapiro agreed. "Although FOSTA and SESTA are a well-intended response to the horrific crime of sex trafficking.... This is highly complex legislation with significant legal implications. Deviating from regular order to rush through this bill on an artificial timetable without review could inadvertently harm lawful American entrepreneurs, small businesses and our world-leading internet economy."

"CDA 230 continues to be integral to the success of the internet," said the Internet Association. "It enables free speech, digital commerce, startup formation, and virtually all user-generated content online. IA will defend against attempts to weaken these crucial protections.”

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