by Dennis Crouch
President Trump has signed into law a significant roll-back of protections for internet platforms for the purpose of shutting-down prostitution in America. The title “Allow States and Victims to Fight Online Sex Trafficking Act of 2017.”
[UPDATED] Someone who “owns, manages, or operates” an interactive computer service and “uses a facility … with intent to promote or facilitate … prostitution of another person” is committing a federal crime. Here, “intent” appears to easily include reckless acts. The statute also creates a Federal Civil cause of action for any injured person under the Act (with foreseeable class actions). The major caveat here is that the law creates an affirmative defense if the defendant proves “that the promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or facilitation was targeted.”
In addition to the Federal Causes of Action, Section 230 of the Communications Decency Act is amended so that there will no longer be a safe harbor for internet service providers against state-based civil and criminal claims associated with unlawful “sex trafficking in children” or prostitution as defined above.
- NOTE – I originally misread the text of the statute to and have updated to recognize that use alone does violate the statute.
- Text of the Bill: https://www.congress.gov/bill/115th-congress/house-bill/1865/text
- Professor Goldman calls the law, “The Worst of Both Worlds.”
- backpage has been shut-down by the FEDS, and other sites have self-shuttered or begun to restrict content:
Note here that both conspiracy and attempt is now criminalized under Federal Law with a 10-year potential imprisonment. Under a broad reading I suspect that under the new law it may be enough to conduct a targeted internet search seeking a prostitute in a way that forms a conspiracy with the service provider.
So long internet, it was nice while it lasted…
Important Note: Backpages was seized by the Feds and the executives charged before FOSTA was signed. So why did they need it again?
Also FOSTA is likely unconstitutional because it violoates the Ex Post Facto Clause.
Not to mention that a lot of civil society groups that work in the space that FOSTA is trying to solve are against it.
This is inaccurate. It is now a Federal crime to — while USING a facility of interstate commerce — “own[], manage[], or operate[] an interactive computer service…with the intent to promote or facilitate the prostitution of another person…” This law does not address merely using it with that intent.
There might be an interesting issue here but I’ll be darned if I can figure it out from Professor Goldman’s essay in which he/she seems to out of his/her way to avoid clearly addressing the First Amendment problems. This passage sums up the weakness:
What socially beneficial services will never emerge due to this? (A question we’ll never be able to answer)
Yes, I’m super worried about the unknown unknowns! I lay awake at night wondering about the super fantastic stuff in the future that really isn’t the future but might be the future except not. Reminds me of Judge Newman worrying about all the awesome undescribable stuff that will never get innovated unless we grant patents on stuff that is impossible to describe with words.
Not my area of expertise, but the article has an entire “Development #3” that appears to address the chilling effects (First Amendment problems).
Was there something more particular that you thought should have been present?
Private hosting sites managing their traffic doesn’t create a First Amendment issue.
Cripes even a total t0 0 l like Zuckerberg knows that.
You should be loving this “disruption” by the way.
Not following your insinuations, nor your attempted legal points.
The rest of us are just bored to tears by the endless c!rcle j#rk you two are engaged in.
That’s too bad, AAA JJ.
In this instance, Malcolm may very well have a point (as this is not within my wheelhouse), and my comment is merely an attempt to draw out a bit better of an explication.
There was none of the typical banter present here (wherein Malcolm is clueless as what he is talking about, and I am taking him to the woodshed).
May I invite you to add something substantive here – if you understand this aspect of law, that is…
I’d invite you to pay your subscription fee for this “boring” spectacle but I might run afoul of the statute. 😉
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