Congress Fixes More Problems With FOSTA Bill... But It Still Needs Work

Congress continues to push for a bill to deal with the use of the internet for sex trafficking. Over the past few months we've discussed multiple attempts at this. Most of the initial action happened on the Senate side, with SESTA -- the "Stop Enabling Sex Traffickers Act." That was a terrible bill with many, many problems. The Senate then put forth a revised version that had marginal improvements, but still many, many problems. While it was voted out of committee, Senator Wyden put a hold on it, noting how bad it would be for the internet and free speech.

From there, the action moved over to the House, with its version, called FOSTA -- the "Fight Online Sex Trafficking Act." Believe it or not, FOSTA as initially written was even worse than SESTA. However, there's now a planned markup of the bill in the House Judiciary tomorrow, and it's over a totally revised "manager's amendment" from Judicary chair Rep. Bob Goodlatte, rather than the original FOSTA that was sponsored by Rep. Ann Wagner. As law professor Eric Goldman points out, of the four bills presented so far, the Goodlatte Manager's Amendment is by far the best, but still has significant problems that should be corrected if the bill is to move forward.

One oddity: the new FOSTA doesn't just focus on sex trafficking, but expands to all online prostitution. This seems both dangerous and unnecessary. While there are legitimate debates to be had about whether or not prostitution should be legalized, the issues around prostitution are clearly different than the issues of coerced sex trafficking. Yes, there is obviously some overlap between trafficking and prostitution, but automatically sweeping both issues together is problematic for a whole host of policy reasons. Everyone should be reasonably against trafficking of unwilling individuals. The issues around willing and consentual transactions involving sex are a lot more complicated. Conflating both in a single bill seems... dangerous.

However, some elements of FOSTA are clearly better than what we saw in SESTA. Instead of focusing on punching a giant hole in CDA 230, the new FOSTA takes a smarter approach. It first creates a new crime (outside of CDA 230), which would be 18 USC 2421A, which would make it a crime to take actions "with the intent to promote or facilitate the prostitution of another person." What's important here is the "intent" standard. The previous bills all used some form of "knowledge" or "knowing conduct." Here, you need to have the actual intent to promote or facilitate prostitution, which is a much more reasonable standard for making these actions criminal. The crime can be "enhanced" if the party engages in "acts of reckless disregard of the fact that such conduct contirubted to sex trafficking violation[s]" but that's only once the intent is already shown. Again, this seems like a more reasonable approach, and would solve the problems we had with the knowledge standard -- and the fear that this would disincentivize monitoring or helping law enforcement under SESTA.

Still, as Eric Goldman notes, this bill could lead to "dubious investigations" and fishing expeditions as prosecutors look to show "intent" on platforms with many, many users, where some of those users may be engaged in prostitution:

Consider how this could play out for giants like Google or Facebook. Despite their best efforts, surely both networks have some online prostitution activity. Let's hypothesize that 0.01% of their site usage relates to online prostitution. Across a billion-member userbase, a 0.01% online prostitution usage converts to 100,000 users. So even if Google and Facebook get it 99.99% right, state and local prosecutors could still point to tens of thousands of online prostitution incidents as circumstantial evidence of the services' "intent" to promote or facilitate online prostitution. And the statutory baseline of 5+ prostitutes frames the issue to make the online giants look like hotbeds of prostitution activity. So even if a prosecutor's case will fail in court, substitute FOSTA would give state and local prosecutors a lot of juice to go after the Internet giants.

Goldman suggests one possible fix for this:

We can't easily eliminate the risk of bogus state and local investigations due to substitute FOSTA, but we can blunt the 5+ language. Something like "promotes or facilitates the prostitution of 5 or more persons HIMSELF OR HERSELF (NOT CONSIDERING THE ACTS OR CONTENT OF ANY THIRD PARTIES)." This change would not treat third party promotions as part of the enhancement, and it would take some wind out of the sails of overeager prosecutors who can find many more than 5+ ads on a site.

But, that won't totally eliminate bogus fishing expeditions.

Another problem with the bill is some convoluted language in which Congress wants to say that this isn't really changing CDA 230, but it can be read in the exact opposite way. Here's the language:

Consistent with section 230 of the Communications Act of 1934 (47 U.S.C. 230), a defendant may be held liable, under this subsection, where promotion or facilitation of prostitution activity includes responsibility for the creation or development of all or part of the information or content provided through any interactive computer service.

As Goldman notes, you can read this to say that "if an online service is responsible for ANY content on its site, it is responsible for ALL content, including all third party content," even though that's almost certainly not what is meant. Instead, it appears to be Congress (needlessly) reconfirming the state of CDA 230, which many of us have pointed out in response to critics: that it already allows prosecution when the service provider is the developer of the content itself (rather than just a third party host). This paragraph is unnecessary, as that's what the law already says, and by adding this new, convoluted language that can be read in the exact opposite way... it's only going to lead to a bunch of lawsuits around this provision and the (horrifying) possibility of a court reading it to change CDA 230.

Overall, I tend to agree with Goldman that it's still unclear why this bill is necessary, other than political grandstanding.

I continue to believe that Congress does not need to pass any bill: the SAVE Act did the work Congress wanted it to do; the Rentboy and MyRedbook prosecutions show the DOJ has effective legal tools (recall that both involved a prosecution for online prostitution, not sex trafficking, so they cover very similar ground to substitute FOSTA); Congress has other anti-sex trafficking initiatives in queue that may be more helpful; and it's not empirically clear that efforts to extinguish online prostitution ads will protect victims. So here's how I'd rank my priorities:

1) best outcome: no legislative changes

2) second-best outcome (a distant second): substitute FOSTA due to the intent scienter, national legal standard and tight linkage between civil and state law enforcement claims and the federal crime

3) third-best outcome (substantially behind substitute FOSTA): SESTA as amended, which fixed some of SESTA's roughest edges but still retained its core imposition of the moderator's dilemma

4) fourth-best outcome: FOSTA as introduced. That version is probably already defunct. At least, I hope so.

I might take this a step further. These bills really seem misguided, and seem much more designed for political grandstanding and the ability for their sponsors to claim they "did something" on a hotbutton topic. But, as noted, while sex trafficking is a real problem, it's a much smaller one than politicians claim. And, all of these bills will actually make it more difficult for law enforcement to track down and arrest the real criminals. That, again, seems misguided. Targeting intermediaries and tools, rather than the sex traffickers themselves, has always seemed like a backwards approach. I'm all for law enforcement seeking out and arresting sex traffickers. But these bills still seem to focus on criminalizing third parties, rather than the actual traffickers, and in doing so, make sure that the actual trafficking activity is more difficult for law enforcement to track down. That's even more true when you conflate prostitution with sex trafficking. So, while the manager's amendment on FOSTA is clearly a "better" solution, it's still a probably unnecessary and counterproductive one.