Controversial Bill Approved by the House Will Change Longstanding Internet Laws - Fordham Intellectual Property, Media & Entertainment Law Journal
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Controversial Bill Approved by the House Will Change Longstanding Internet Laws

Controversial Bill Approved by the House Will Change Longstanding Internet Laws

Sex trafficking is a form of modern-day slavery where individuals are engaged in commercial sex through force, fraud, or coercion.1 The supply and demand of sex trafficking has increased in recent years, partially due to the Internet, and the ease with which traffickers and customers can complete a transaction. Traffickers utilize the Internet in various ways, including social media, dating sites, and online advertisements, to market trafficked victims.2

On February 27, 2018, the House of Representatives passed a controversial sex trafficking bill by a vote of 388 to 25 that will soon be put before the Senate.3 The bill, H.R. 1865, Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), is sponsored by Congresswoman Ann Wagner and was amended to include excerpts from Congresswoman Mimi Walters’ S. 1693, the Stop Enabling Sex Traffickers Act (“SESTA”).4 This bipartisan package clarifies section 230 of the Communications Decency Act (“CDA”), and will allow sex trafficking victims, prosecutors, and state attorneys to sue websites and its owners with civil causes of action for “knowingly” publishing advertisements and content linked to sex trafficking.5

The CDA was enacted by Congress in 1966 in a noble attempt to regulate access to pornographic material on the Internet. It creates a criminal cause of action against those who knowingly transmit “obscene” or “indecent” messages to individuals under 18 years old, and prohibits knowingly sending or displaying a “patently offensive” message containing sexual or explicit activities to a minor.6 Further, section 230 says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”7 This section has been widely interpreted to mean that operators of Internet sites will not be seen as publishers and are therefore not legally liable for the content shared by third parties using their sites.8

Since the FOSTA amendment was proposed, there has been intense backlash by many civil rights groups and free speech advocates. Advocates argue that the amended FOSTA bill will freeze innovation and competition among Internet companies, forcing online platforms to censor their users by silencing them in violation of the First Amendment.9 These advocates believe the bill would increase criminal and civil liability at federal and state levels and would make section 230 apply retroactively, where a platform may be prosecuted for failing to comply with the law before it was passed.10 Other advocates argue that the bill will “open[] the censorship floodgates,” and is “the worst thing to happen to the internet since the death of net neutrality.”11

The Senate is likely to vote on the bill this week. If it is passed by Congress, it will then be put to President Trump, who is anticipated to sign it because his daughter, Ivanka Trump, has voiced her support for the bill.12 Regardless of which side of the debate you are on, this bill is historic: to some, it is a much-needed protection of human rights, and to others, it is an infringement on our First Amendment rights.

  1. Sex Trafficking, National Human Trafficking Hotline, [].

  2. Sex Trafficking, End Slavery Now, []; see Shuts Down Adult Services Ads After Relentless Pressure From Authorities, The Washington Post (Jan. 10, 2017), [] (“Fighting accusations from members of Congress that it facilitated child sex trafficking, the classified advertising site abruptly closed its adult advertising section in the United States [in January 2017], saying years of government pressure left it no choice but to shutter its most popular and lucrative feature. The decision came shortly after a Senate panel released a report alleging Backpage concealed criminal activity by removing words from ads that would have exposed child sex trafficking and prostitution . . . Backpage said in a statement that scrutiny of the site by government officials has made it too costly to keep operating the adult section. The company rejected the [panel’s] findings, saying the decision was the result of ‘unconstitutional government censorship’ . . . The ads for escorts, body-rubs and adult entertainment, many of them including revealing photos as part of the come-on, were an important source of revenue for Backpage, which operate like Craigslist, with users paying to advertise a range of goods and services. Advocates say such advertisements have improved safety for sex workers by allowing them to negotiate services online rather than in the streets. But the National Association of Attorneys General and other law enforcement officials have argued that Backpage and sites like it provide an outlet for people who seek to sexually exploit minors.”)

  3. Russell Brandom, Controversial Sex-Trafficking Bill Passes the House of Representatives, The Verge (Feb. 27, 2018), [].

  4. See Wagner Trafficking Bill Headed To House Floor, Wagner House (Feb. 21, 2018), []. The bill is also sponsored by Congresswoman Carolyn Maloney, Senator Rob Portman, and Senator Richard Blumenthal, among others.

  5. Id.

  6. 47 U.S.C. § 230 (2017).

  7. Id.

  8. See e.g., Sarah Jeong, A New Bill to Fight Sex Trafficking Would Destroy a Core Pillar of Internet Freedom, The Verge (Aug. 1, 2017), [] (“In October 2016, the California Department of Justice raided Backpage’s offices and arrested its CEO in response to allegations that the site had facilitated sex trafficking. But a judge dismissed the charges, ruling that CDA 230 ultimately protected the company.”).

  9. See e.g., Elliott Harmon, FOSTA Would Be a Disaster for Online Communities, Electronic Frontier Foundation (Feb. 22, 2018), []; see also Ashley Gold, Tech Groups: Not so Fast on FOSTA-SESTA, Politico (Feb. 23, 2018), []; Jeong, supra note 8; House Passes Contentious Anti-Online Sex Trafficking Bill, Engadget (Feb. 27, 2018), [] (“[S]ince the bill’s terms would apply to all websites and not just to shady directories, the tech industry is divided on the issue. The Internet Association, IBM, Oracle and Hewlett Packard Enterprise are for it. Facebook, as well, with COO Sheryl Sandberg voicing support for the bill on her page []. ‘Facebook is committed to working with . . . legislators in the House and Senate as the process moves forward to make sure we pass meaningful and strong legislation to stop sex trafficking,’ she wrote. Google and groups like the EFF make up the opposition, warning the government that the bill would drastically change the Communications Decency Act, which allowed the internet to flourish.”).

  10. See Jeong, supra note 8.

  11. Violet Blue, How ‘Sex Trafficking’ Just Opened the Censorship Floodgates, Engadget (Mar. 2, 2018), [].

  12. Id.

Chelsea Abramowitz

Chelsea Abramowitz is a 2L at Fordham University School of Law and is a passionate advocate against all forms of human trafficking and sexual exploitation.