Every decent person opposes the trafficking of human beings for sexual exploitation. These acts, and their facilitation, are serious crimes. But how far we go trying to end that scourge matters. And if we aren’t careful, current Congressional proposals to restrain sexual trafficking could irreparably damage the internet ecosystem. We yield to no one in our distaste for sex traffickers — but society can combat that evil without putting, say, Wikipedia at risk.
The House Judiciary Committee will take up a newly revised proposal later this week known as the “Fight Online Sex Trafficking Act” or FOSTA. It’s an imperfect bill, but it is far better than the Senate proposed alternative (known as SESTA).
By way of background, the push to regulate speech on the network stems from the unfortunate reality that some websites (most notoriously one known as Backpage) are used by sex traffickers to market their services. Critics of Backpage (and other sites like it) condemn this use of unmitigated internet freedom — and, indeed, it is indefensible, especially when those trafficked into sexual service are children.
But the Senate’s SESTA proposal, aimed to render Backpage liable for the injury it causes, would do more harm than good.
For years, website service providers were protected by Section 230 of the Communications Decency Act. It’s a provision that essentially says platforms who merely host user generated content generally aren’t liable for that content except under federal criminal law. In other words, if I post a libelous screed to Facebook, I’m responsible, not Facebook.
Without Section 230, for example, social media could not exist in its current vibrant style. A host of nonprofit and community-based online groups, like Wikipedia, could not function as outlets for free expression and knowledge sharing if they were responsible for what their users posted. Nor, frankly, could any website with an open comment thread.
SESTA changes all that. It would make it easier to prosecute websites who “facilitate” sex trafficking, which means, under the new law, nothing more than “make it possible.” But merely by existing, open websites that host user content are facilitating the publication of that content — that’s their very purpose for existence. So, in effect, SESTA would potentially make any online platform liable criminally and civilly if the site were used (even without its knowledge) for trafficking. This could implicate everybody from Airbnb to Facebook to WordPress. If a new startup doesn’t have the resources to screen content like Facebook, too bad for them. Not only is that nonsense as a matter of criminal justice, it’s a potential death blow to free expression, setting up private sector web sites as censors of content who fail to edit themselves at their own peril.
With these considerations in mind, one readily predicts how this will play out. The pressure on web sites to prevent trafficking-related material from being posted would almost certainly drive them to edit content on their site — often relying on automated content filtering tools since that is the only way for larger sites (like, for example, Twitter) to moderate content postings at scale. This will almost certainly result in overbroad censorship as both the tools and their human operators will err on the side of caution rather than risk criminalization.
Perhaps even more ominously, once we go down the road of content filtering, where do we stop? Sex trafficking is an easy case. But what about harder ones, like anti-abortion speech or pro-Hamas political diatribes? It simply cannot be wise to begin censoring the flow of information on the network, no matter how just the cause.
By happy contrast, the House amendment, FOSTA, is a substantial improvement. Rather than make web purveyors into censorious agents of the state it gets at the problem directly by criminalizing the use of the web “with the intent” to promote or facilitate prostitution or sexual trafficking. The purpose element is a critical limiting principal that would apply criminal law only to those who act with mens rea (or “bad intent”). And rather than substantively amending Section 230, FOSTA simply (and correctly) makes clear that it doesn’t preempt criminal law.
FOSTA isn’t perfect however. The civil liability provisions need to be tightened up to make clear that civil liability only follows after a criminal prosecution. And the criminal provisions, as drafted are perhaps over-broad. But those issues can, and should, be resolved in the legislative drafting process.
Nobody approves of anyone being the subject of sexual trafficking by pimps and others who abuse young boys and girls. But many websites are already trying to stop these crimes, rather than promote them. When searching for a solution, the devil is in the details.
We should all be cautious when universal truths are stated at a high level of generality. Digging into the nitty-gritty makes it clear that we can fight sex trafficking without risking free speech. FOSTA is a far more effective approach that goes directly after criminal sex traffickers. The bill would give law enforcement new legal authority to put criminals in jail, and it would do so without undermining the foundations of internet freedom.