New FOSTA Law and Unintentional Complications
This month, President Trump signed into law a new bill that gives human trafficking victims and their advocates a greater ability to take legal action against websites that support prostitution and online solicitation – sites that also are commonly believed to be involved in human trafficking and especially sex trafficking of children. The bill, officially called the ‘‘Allow States and Victims to Fight Online Sex Trafficking Act of 2017’’ is unofficially referred to as the FOSTA law. In an earlier form, the bill was call the Stop Enabling Sex Trafficking Act (SESTA).
Although the new law intends to provide more power to law enforcement, it also involves complications that could hinder the arrest of criminals or result in arrest and conviction of people who may be innocent of criminal activity. Third-party websites that provide open forums, for example, may be held liable if the platforms are used by others to break sex crime laws. The new FOSTA law also could complicate cases in which people believe they are participating in consensual sex. If website users genuinely believe a partner met online has agreed to sex of their own free will, they still could get swept up in human trafficking law enforcement efforts and other online solicitation charges.
Berry Law attorneys are knowledgeable about the new law and any unintentional complications clients may find themselves facing related to online solicitation.
FOSTA Used to Shut Down Third-Party Websites and Online Solicitation
According to an article in the Washington Post, the FOSTA bill went into effect immediately after the President signed it into law, but it already was making an impact before the signing as the bill moved through the U.S. House of Representatives and U.S. Senate. By the time of the signing, some websites already had closed sex-related webpages and had stopped accepting sex-related advertising. Craigslist, for example, as a third-party website providing advertising services, shut down pages (including the site’s personal ads section) that could be thought to be related to online solicitation after the Senate approved the bill. Other websites, such as Reddit and other adult advertising sites didn’t cite FOSTA as the reason for shutting down pages, but the timing of the shutdowns suggests there was a connection.
Although many of the effects of the new law won’t be seen for months, for the purposes of shutting down sex-related advertising, the new law already appears to be effective. According to the Washington Post article, the bill’s chief sponsor, Rep. Ann Wagner (R-Mo.), claimed sex-related advertising declined by 87 percent after the House passed the bill a couple of months before the signing.
The law is expected to be instrumental in allowing law enforcement teams to close websites such as Backpage.com, a site specializing in advertisements for adult services and one of the first third-party websites to be held accountable under the new law. Seven executives associated with that website were arrested just days before the bill was signed. A 93-count indictment alleges the site was selling teenage girls, in addition to facilitating prostitution and laundering tens of millions of dollars in profits. The website claimed it was only a third-party site providing a communication service, but a recent investigation showed site officials also were involved in creating sex-related advertisements in its pages.
According to the article, “The government also shut down Backpage’s classified ad websites around the world, and moved to seize houses and bank accounts around the United States.”
The Law’s Controversial Broad Powers for Sex Crimes Prosecution
Although advocates for human trafficking victims and others strongly support the FOSTA law, some believe it is too broad and could lead to the arrest of citizens who have not participated in any wrongdoing. The perceived problems with FOSTA fall into several categories:
- The law could put third-party websites and their communities in legal jeopardy, even if site owners and operators haven’t participated in the creation of offending ads or other material supporting human trafficking and online solicitation. In the past, such sites were protected by free-speech and safe harbor laws in their role as online, somewhat anonymous, forums where content is posted by others. Platform users were held liable for their own actions on the websites rather than the people who owned and operated the websites. FOSTA is thought by some to break down these protections. Laws affected by FOSTA include:
Section 230 of the Communications Decency Act. This law established immunity for technology companies (including forum-style websites) regarding any wrongdoing by users on the platforms. Under Section 230, websites can moderate speech by removing trolling or spam without having to be responsible for reviewing every single comment (not physically possible on large sites). This law, without the new amendment, provided several exceptions to the immunity rule, including actions falling under federal criminal law, intellectual property laws and the Electronic Communications Privacy Act. FOSTA provides an additional exception to immunity, suggesting online platforms should be held accountable for illegal sex trafficking, just as offline outlets are. Furthermore, the websites can be held liable retroactively, which means they can be prosecuted for noncompliance that took place even before the law was passed. The law’s wording accuses some websites of being “reckless in allowing the sale of sex trafficking victims” and says they “have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.”
The Mann Act. FOSTA adds a new section to this act, which prohibits transporting a person across state lines with the intent that the person will engage in criminal sexual activity, and in addition makes it a crime to operate any platform “with the intent to promote or facilitate” prostitution.
Digital Millennium Copyright Act (DMCA). The safe harbor rules of this law hold large platforms harmless for copyright infringement of their users, as long as they follow certain rules. Some claim FOSTA, in an attempt to provide more details about the liability of websites, actually has created a large grey area. In part, there are questions about what “facilitating” or “assisting” prostitution means. Owners and operators of websites such as Craigslist, for example, under original DMCA language, knew what to do to avoid noncompliance. Some say under FOSTA it isn’t clear what owners and operators need to do to avoid prosecution, and this lack of clarity may be the reason many pages were removed after the law was passed.
- Adding to the controversy over the new law is the fact that some believe sex-related advertisements on third-party sites were an effective tool for identifying pimps and traffickers and finding missing children. Opponents of the law suggest FOSTA’s shuttering of advertising by sex-related businesses removes an obvious and perhaps even easy path for law enforcement officers and victim advocates to research potential legal infractions and locate people who are being exploited by sex-related businesses.
- Adult performers and sex-industry workers who strive to improve the health and safety of sex workers could be at risk under the new law. For example, someone who works with prostitutes or victims of sex trafficking to help them stay safe as long as they are going to be doing this work anyway could be held liable for promoting or facilitating prostitution – an offense now punishable by as many as 10 years in prison. Legal sex workers believe the law will force many workers physically back onto the streets, where they are more susceptible to violence and exploitation by abusive clients and pimps. Online platforms provide sex workers a way to screen new clients and warn one another of potential threats, including “bad date” lists that help sex workers avoid clients known to be violent and abusive.
- Attorneys at Berry Law and others believe the broadness of the new human trafficking law could be used to arrest users of third-party sites who are looking for consensual adult sex partners. They may believe their partners are participating in sexual activities freely, but then inadvertently become involved with a sex trafficking victim. Even if an assumed consensual partner is not a trafficking victim, under the new law both persons seeking consensual partners could be held liable for facilitating prostitution. In situations where law enforcement officers conduct stings to identify and arrest prostitutes, an honest, non-criminal seeker of consensual sex could be at risk for arrest.
Some opponents of FOSTA believe existing laws already gave law enforcement departments the legal power they needed to arrest individuals who knowingly supported sex trafficking and prostitution. Now that the law has been signed, some expect it will face challenges in court, not the least of which could be challenges to the law on the grounds that it limits free speech and provides over regulation of the Internet.
Course of Action for those Arrested under FOSTA
If you or someone you know seeks consensual online sex or is arrested for activity related to FOSTA/SESTA or other laws related to human trafficking or sex trafficking, you may desire the support and knowledge of an experienced sex crimes attorney. Berry Law’s attorneys possess deep experience with sex crimes defense in the Omaha, Nebraska, and Lincoln, Nebraska, metro areas, as well as throughout Nebraska. Contact us if you are in need of assistance.