SESTA, FOSTA and Internet Prostitution

With the passage of the mashup between the Stop Enabling Sex Trafficking Act ("SESTA") and the Fight Online Sex Trafficking Act ("FOSTA") in April 2018, the feds have broad power to prosecute almost anyone involved with websites that publish ads for prostitutes or otherwise can be said to be contributing to online prostitution or sex trafficking. While the new law purports to go after sex traffickers -- people who coerce others, including children -- into selling sex, in fact their reach is much broader than that. The bill that was signed into law was the House of Representatives version, H.R. 1865, entitled the "Allow States and Victims to Fight Online Sex Trafficking Act of 2017." It creates a brand new criminal provision outlawing "promotion or facilitation of prostitution and reckless disregard of sex trafficking" with penalties of up to 25 years in prison. The new law, codified at 18 U.S.C. Sec. 2421A, contains two separate provisions.

First, anyone who "owns, manages, or operates an interactive computer service" (or conspires or attempts to do so) with the intent to promote or facilitate the prostitution of another person is guilty of a crime. That provision is not so different from the Travel Act, which already made it a federal crime to facilitate prostitution across state lines. The website was prosecuted under the Travel Act the same week as FOSTA/SESTA was enacted into law. Backpage and other websites like it clearly could have charged under the new law, too. In other words, website operators openly touting prostitution have always been exposed to prosecution under the federal law. FOSTA/SESTA just makes the statutory authority that much clearer. A violation of this first provision of FOSTA carries a ten-year maximum penalty as well as various financial sanctions. If the conduct involves promoting five or more prostitutes, FOSTA creates a penalty of up to twenty-five years in prison.

Second, and more ominously, FOSTA provides for the same twenty-five years in federal prison for anyone who operates a website promoting prostitution "in reckless disregard of the fact that such conduct contributed to sex trafficking." Sex trafficking is defined broadly under federal law, and includes not only promoting underaged prostitutes but also any use of force, threats or "coercion" to entice someone into prostitution. In practice, the twenty-five year penalty created by FOSTA could theoretically be used to punish anyone involved in a huge number of websites that relate in any way to prostitution.

It remains to be seen how FOSTA will be enforced by the government and whether it will survive scrutiny in the courts. Federal prostitution prosecutions are, in fact, high profile but relatively rare. The new law was subjected to withering criticism from a broad coalition of groups as it made its way through Congress. It appears to cut so broadly into internet content that it could be struck down for violating the First Amendment's protection of free speech or the Fifth Amendment's protections against vague laws. If you are operating a website that could be subject to FOSTA, please contact our office for a consultation. If you have been arrested and charged with violating FOSTA, we can help. Please call us for further information.