By Zachary Margulis-Ohnuma
Last week, President Trump signed legislation that expands criminal liability for people who own or operate online platforms that “promote or facilitate” not only sex trafficking, but virtually any consensual sex work. The new law, which amends Section 230 of the Communications Decency Act (“CDA”), is commonly referred to as the “Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), or by its Senate name, the “Stop Enabling Sex Traffickers Act (SESTA).”
The FOSTA-SESTA amendment to the CDA is fairly short, but raises questions about how it will be enforced by prosecutors and plaintiffs’ attorneys granted a private right of action under the law. Under the new law:
- Anyone who “owns, manages, or operates” an online platform or “conspires or attempts to do
so” with the intent to “promote or facilitate” another person engaging in “prostitution” (which
includes consensual sex work) faces up to 10 years in prison. - If the foregoing is done with “reckless disregard” of the fact that it contributed to
“sex trafficking” — prostitution involving coercive means — the potential prison sentence
increases to 25 years. - The maximum prison sentence also increases to 25 years if the government can establish that
the online platform “promotes or facilitates” the sex work of five or more persons. - Any person injured by reason of an online platform that either contributed to sex trafficking, or
facilitated 5 or more people engaging in sex work, can sue the online platform for monetary
damages and attorneys’ fees.
The FOSTA-SESTA legislation also contains a “clarification” of CDA Section 230, stating that the provision was “never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution” or sex trafficking. This statement is filled with peril because prosecutors can use it to try to apply pre-existing anti-trafficking laws retroactively against website operators: they can argue that online platforms that ran afoul of FOSTA-SESTA prior to its enactment are still subject to the criminal and civil penalties that were thought to be protected by the Communications Decency Act.
Further, the inclusion of consensual sex work as well as the vague verbiage of “promote or facilitate” has caused some websites to shut down services that have little connection to the kind of
societal harms the law claims to address. For example, an online platform designed to help sex workers remain safe and avoid potentially abusive clients has reportedly considered changing the nature of their service after the enactment of FOSTA-SESTA.
It also remains unclear why the government needed expanded powers to prosecute website owners that facilitate sex trafficking or prostitution. Prosecutors from multiple jurisdictions have already secured convictions against website owners that allegedly facilitated prostitution, and arguably sex trafficking, using laws that existed before FOSTA-SESTA was enacted. For example, under preexisting federal law, the United States Attorney’s Office for the Eastern District of New York secured a criminal conviction against the owner and operator of a gay escort website, and, at the same time as FOSTA was signed into law, state and federal prosecutors in Texas, Arizona, and California secured criminal convictions against an owner of Backpage.com, an alleged online haven for sex trafficking and prostitution. For more on the debate, see this long-form piece on Vox.com that argues that the passage of FOSTA-SESTA is an early step in a larger corporate effort to tame the wilder spaces of the internet to protect copyrights and stifle competition from smaller, edgier sites like Craigslist, Wikipedia, and Reddit.
Our office has set up a SESTA/FOSTA page for more information. Though politically popular, the new provisions may be vulnerable to challenges in the courts. If you are under investigation for a FOSTA or a people trafficking violation, we urge you to contact our internet sex crime lawyers right away. If you were injured by sex trafficking that was advertised online, we also may be able to help. Call us for a consultation.