The controversial bill package FOSTA-SESTA has already impacted sites like Reddit, Craigslist, and Google — and that’s just the start.
By Aja Romano@ajaromano Updated Apr 18, 2018, 5:40pm EDT
Wondering why Craigslist recently killed its (in)famous Personals section? You can thank Congress — and you can start bracing for more deletions and censorship to come.
This week, President Trump signed into law a set of controversial bills intended to make it easier to cut down on illegal sex trafficking online. Both bills — the House bill known as FOSTA, the Fight Online Sex Trafficking Act, and the Senate bill, SESTA, the Stop Enabling Sex-Trafficking Act — have been hailed by advocates as a victory for sex trafficking victims.
But the bills also poke a huge hole in a famous and longstanding “safe harbor” rule of the internet: Section 230 of the 1996 Communications Decency Act. Usually shorthanded as “Section 230” and generally seen as one of the most important pieces of internet legislation ever created, it holds 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.” In other words, Section 230 has allowed the internet to thrive on user-generated content without holding platforms and ISPs responsible for whatever those users might create.
But FOSTA-SESTA creates an exception to Section 230 that means website publishers would be responsible if third parties are found to be posting ads for prostitution — including consensual sex work — on their platforms. The goal of this is supposed to be that policing online prostitution rings gets easier. What FOSTA-SESTA has actually done, however, is create confusion and immediate repercussions among a range of internet sites as they grapple with the ruling’s sweeping language.
In the immediate aftermath of SESTA’s passage on March 21, 2018, numerous websites took action to censor or ban parts of their platforms in response — not because those parts of the sites actually were promoting ads for prostitutes, but because policing them against the outside possibility that they might was just too hard.
All of this bodes poorly for the internet as a whole. After all, as many opponents of the bill have pointed out, the law doesn’t appear to do anything concrete to target illegal sex trafficking directly, and instead threatens to “increase violence against the most marginalized.” But it does make it a lot easier to censor free speech on small websites — as evidenced by the immediate ramifications the law has had across the internet.
What FOSTA-SESTA is intended to do: curb online sex work
FOSTA and SESTA began their respective lives as two different bills created in an effort to curb sex trafficking on online personals sites — in particular, Backpage.com.
Backpage has long been known for its advertisements for sex workers (though these were formally removed from the site last year). It’s also seen numerous controversies related to illegal sex work; authorities have arrested individuals using it to pay for sex, and Backpage has aided law enforcement in investigations into ads on its site. In the past, authorities have taken down similar websites through targeted raids.
But previous attempts by authorities to hold Backpage responsible for illegal content on its website have failed due to Section 230’s dictum that websites aren’t liable for content posted by their users. This trend culminated in the December 2016 dismissal of a lawsuit designed to target Backpage for ads on its websites. The presiding judge explicitly cited Section 230 in his decision to dismiss.
Immediately following this dismissal, however, the tide rapidly seemed to turn against Backpage. In January 2017, a Senate investigation ultimately found Backpage to be complicit in obscuring ads for child trafficking. A month later, a documentary of survivors called I Am Jane Doe focused on Backpage, arguing that the safe harbor provision protecting Backpage from liability for ads on its sites should be done away with.
Congress listened. FOSTA and SESTA were created last year in response to the backlash, with the bill’s creator specifically naming Backpage in an attempt to ensure that future lawsuits like the one dismissed in 2016 could move forward.
This move drew immediate skepticism from within the legal community. Noted law professor and blogger Eric Goldman wrote of SESTA’s creation that “The bill would expose Internet entrepreneurs to additional unclear criminal risk, and that would chill socially beneficial entrepreneurship well outside the bill’s target zone.” He also pointed out that existing criminal laws already do most of what FOSTA-SESTA is designed to do — an argument bolstered by the fact that as recently as this month, Backpage was still facing legal troubles under existing laws that exempt it from 230 protection.
What FOSTA-SESTA probably won’t do: make sex workers safer
The bill’s supporters have framed FOSTA and SESTA as vital tools that will allow officials to police websites and allow sex trafficking survivors to sue those websites for facilitating their victimization. This is a disingenuous portrayal, however, because it fails to acknowledge the ways the internet makes it easier for sex workers to do their work safely, while also making it easier for law enforcement to document and gain evidence about illegal activity.
There is ample evidence, both anecdotal and researched, that giving sex workers a way to advertise, vet, and choose clients online makes them much safer than they are without an online system. When they’re forced onto the streets to find clients, sex workers have fewer advance safety precautions in place, no ability to effectively pre-screen clients, and no way to ensure that they work in safe, secure locations.
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