It was a dark day for the Internet.
The U.S. Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to censor their users. As lobbyists and members of
Congress applaud themselves for enacting a law tackling the problem of trafficking, let's be clear: Congress just made trafficking victims less safe, not more.
The version of FOSTA that just passed the Senate combined an earlier version of FOSTA (what we call FOSTA 2.0) with the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). The history of SESTA/FOSTA -- a bad bill that turned into a worse bill and
then was rushed through votes in both houses of Congress2 -- is a story about Congress' failure to see that its good intentions can result in bad law. It's a story of Congress' failure to listen to the constituents who'd be most affected by the
laws it passed. It's also the story of some players in the tech sector choosing to settle for compromises and half-wins that will put ordinary people in danger. Silencing Internet Users Doesn't Make Us Safer
SESTA/FOSTA undermines Section 230, the most important law protecting free speech online. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, the Internet would look very different.
It's likely that many of today's online platforms would never have formed or received the investment they needed to grow and scale204the risk of litigation would have simply been too high. Similarly, in absence of Section 230 protections,
noncommercial platforms like Wikipedia and the Internet Archive likely wouldn't have been founded given the high level of legal risk involved with hosting third-party content.
The bill is worded so broadly that it could even be used against platform owners that don't know that their sites are being used for trafficking.
Importantly, Section 230 does not shield platforms from liability under federal criminal law. Section 230 also doesn't shield platforms across-the-board from liability under civil law: courts have allowed civil claims against online platforms when
a platform directly contributed to unlawful speech. Section 230 strikes a careful balance between enabling the pursuit of justice and promoting free speech and innovation online: platforms can be held responsible for their own actions, and can
still host user-generated content without fear of broad legal liability.
SESTA/FOSTA upends that balance, opening platforms to new criminal and civil liability at the state and federal levels for their users' sex trafficking activities. The platform liability created by new Section 230 carve outs applies retroactively
-- meaning the increased liability applies to trafficking that took place before the law passed. The Department of Justice has raised concerns about this violating the Constitution's Ex Post Facto Clause, at least for the criminal provisions.
The bill also expands existing federal criminal law to target online platforms where sex trafficking content appears. The bill is worded so broadly that it could even be used against platform owners that don't know that their sites are being used
Finally, SESTA/FOSTA expands federal prostitution law to cover those who use the Internet to promote or facilitate prostitution. The Internet will become a less inclusive place, something that hurts all of us.
And if you had glossed over a little at the legal details, perhaps a few examples of the immediate censorship impact of the new law
Immediate Chilling Effect on Adult Content
See article from xbiz.com
SESTA's passage by the U.S. Senate has had an immediate chilling effect on those working in the adult industry.
Today, stories of a fallout are being heard, with adult performers finding their content being flagged and blocked, an escort site that has suddenly becoming not available, Craigslist shutting down its personals sections and Reddit closing down
some of its communities, among other tales.
SESTA, which doesn't differentiate between sex trafficking and consensual sex work, targets scores of adult sites that consensual sex workers use to advertise their work.
And now, before SESTA reaches President Trump's desk for his guaranteed signature, those sites are scrambling to prevent themselves from being charged under sex trafficking laws.
It's not surprising that we're seeing an immediate chilling effect on protected speech, industry attorney Lawrence Walters told XBIZ. This was predicted as the likely impact of the bill, as online intermediaries over-censor content in the attempt
to mitigate their own risks. The damage to the First Amendment appears palpable.
Today, longtime city-by-city escort service website, CityVibe.com, completely disappeared, only to be replaced with a message, Sorry, this website is not available.
Tonight, mainstream classified site Craigslist, which serves more than 20 billion page views per month, said that it has dropped personals listings in the U.S.
Motherboard reported today that at least six porn performers have complained that files have been blocked without warning from Google's cloud storage service. It seems like all of our videos in Google Drive are getting flagged by some sort of
automated system, adult star Lilly Stone told Motherboard. We're not even really getting notified of it, the only way we really found out was one of our customers told us he couldn't view or download the video we sent him.
Another adult star, Avey Moon was trying to send the winner of her Chaturbate contest his prize -- a video titled POV Blowjob -- through her Google Drive account, but it wouldn't send.
Reddit made an announcement late yesterday explaining that the site has changed its content policy, forbidding transactions for certain goods and services that include physical sexual contact. A number of subreddits regularly used to help sex
workers have been completedly banned. Those include r/Escorts , r/MaleEscorts and r/SugarDaddy .