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FOSTA-SESTA for Internet Service Providers

By John DiGiacomo

FOSTA-SESTA for Internet Service Providers

The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act of 2017 (SESTA) are two bills that were passed by the House and Senate. The combination of the bills, referred to as FOSTA-SETSA was signed into law in April 2018. This law represents an important change to the way internet content will be policed moving forward.

Previous Requirements Under the Community Decency Act

Before the enactment of FOSTA-SESTA, Section 230 of the Community Decency Act (CDA) stated:

“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.”

In other words, websites like Craigslist or Reddit, which encourage anonymous users to engage in discussion, debate, and commerce, would not be liable for the content on these sites, even if they edited or moderated the content, so long as the meaning did not change. This law, which was described as “the law that gave us the internet,” was capable of shielding Google and Facebook from liability for defamation lawsuits, or even criminal investigations.

For a long time, this law was also used to protect, which a Senate Subcommittee Report discovered was involved in 73% of all child trafficking reports. The owners of the site argued that Section 230 of the CDA shielded them from liability. However, the Senate discovered that Backpage was actively facilitating child sex trafficking by editing ads so they would pass community standards and teaching its users on how to post “clean” ads for illegal transactions.

This level of editing went beyond the safety net of Section 230, and in April 2018, the Department of Justice issued a 93-count indictment against seven people involved with The FBI seized the website.

What FOSTA-SESTA Changes

Under FOSTA-SESTA, websites can be civilly liable and prosecuted in criminal court for any sex trafficking discussions that are viewable on their platform.

Specifically, someone who “owns, manages, or operates an interactive computer service (or attempts or conspires to do so) to promote or facilitate the prostitution of another person” can face up to 10 years in prison and hefty fines.

This law removes the Section 230 shields for web hosts, internet service providers (ISPs), and social media sites specifically when it comes to sex trafficking. The shields on liability will remain in place for other matters, such as defamation lawsuits.

However, FOSTA-SETSA does represent a major change to the duties and responsibilities with regard to monitoring and enforcing their content. After the law passed, many sites took steps to remove material for which they could be found liable. Craigslist, for example, took down its entire personals section, while Redditt removed several popular subreddits.

ISP Compliance Under the New Laws

If your company provides any online services, there are a number of steps you can take to ensure you are in compliance with FOSTA-SETSA.

First, you should take a look at services your organization currently provides. If you have classified ads, dating apps or services, social media forums, or accept third-party ads on your site, you should update your terms of service to specifically reflect what you will, and will not allow to be posted.

Second, you will need to double down on efforts to moderate these third-party messages. You should understand the language used in sex trafficking in order to do this properly. If you need to, hire and train additional moderators to do this job correctly. You should also update your parameters periodically in order to catch new language and phrases used in these communications.

Finally, decide what level of risk your company wants to take. While some companies may decide to challenge the law if pursued, many are taking a conservative approach. For example, Craigslist made the decision to completely remove its Personals section to avoid liability under the law. Recent news of Tumblr’s decision to remove adult content from its site has also been linked to this new legislation.

Remember, your company may or may not actually be subject to FOSTA-SETSA. For example, ProtonMail, a Switzerland-based email service, issued a statement explaining how it is not governed by US laws. Because activities such as gambling and sex work are not illegal in Switzerland, a Swiss court would be unlikely to acquiesce to a government request for data related to these activities.

Praise and Criticism for FOSTA-SESTA

FOSTA-SESTA received praise from a number of sectors. Many industry leaders who are members of the Internet Association, including Amazon, Microsoft, Uber, and Netflix, supported the new legislation, stating that it is “committed to combating sexual exploitation and sex trafficking online.” Another proponent of the new law argued that this change is needed to “deal with a 21st century problem.”

The Department of Justice (DOJ) also largely supported the change in legislation, as it gives additional tools to fight trafficking. However, the DOJ asked that language be amended to focus on trafficking, rather than consenting adults. It also raised a constitutional concern, in that FOSTA-SESTA allowed for criminal punishments on behavior that occurred before the law passed. This sort of ex post facto law is unconstitutional, and is a highly criticized element of the law.

Advocates for sex worker safety believe that this law does more harm than good. The law will prevent people from using sites like Craigslist to advertise their services, which is a safer alternative than being on the street. Instead, because of this law, women and men may need to put themselves back in dangerous situations to make their livings.

Freedom Network USA, which provides services to trafficking victims – the group the law is designed to help – also argues that this law will drive the sex trade further underground.

Removing references to sex trafficking and prostitution will not make their victims or participants disappear. Under current enforcement models, investigatory agencies are able to track victims online through IP address and photographs. If these sites are shut down, victims will be less likely to be identified and face more threats of violence.

Free speech advocates, including the ACLU, also argue that FOSTA-SESTA requires online platforms to spend more energy on policing content, which can have a chilling effect on free expression online. Perhaps the most vocal opponent to the new law is the Electronic Frontier Foundation (EFF), which believes that Congress is now censoring the internet and preventing the development of new technologies.

For more information on ISP disclosures or compliance requirements with federal and state laws, contact Revision Legal’s team of experienced internet attorneys through the form on this page or call 855-473-8474.

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