Act now: The latest effort to censor you (FOSTA) is here!

The US House of Representatives has just passed a bill called FOSTA (the “Fight Online Sex Trafficking Act”). This bill is headed to the senate. It needs to be stopped.

This bill is, as the name implies, ostensibly intended to fight sex trafficking. Sex trafficking is awful, and should be fought. But a lot of sex trafficking experts think that this bill won’t have that effect. That it will actually make things much worse for sex workers. For example, those sex trafficking victims that are supposed to be protected may suddenly find it illegal to talk about their experiences. Whoops.

(Yes, that’s a Jezebel link. If they don’t match your politics, fair enough, try Reason. Pretty much nobody on any side thinks this is a good idea, except a handful of underinformed celebrities. This is not a right-left issue.)

That’s probably reason enough not to pass it, or at least to go back and take another look. But that’s not the end of the story.

An amendment slipped into the bill also proposes to override section 230 of the Communications Decency Act. Without overstating the case in any way, CDA 230 is the reason small companies like ours can exist. It protects us from liability for the actions and content of our customers. That means if you don’t like what one of our customers has to say, you can’t sue us about it. The First Amendment is great, and we love it, but in everyday practice, CDA 230 is what keeps rich people and companies from filing nuisance lawsuits to force us to either censor our customers at their behest or drown in legal fees. They know that, and they hate it.

As the EFF has pointed out, if this protection is weakened, pretty soon the small voices will be silenced. Not because what they have to say is illegal, but simply because it might be. Fear of liability will force providers like us to either moderate all the content that appears on our service — massively Orwellian and expensive — or simply proactively disallow anything that might possibly create liability. Or just shut down and leave the Internet to the likes of Facebook.

In that climate, the only people who will be able to have websites will be people who can afford teams of lawyers and people who only say things so boring that they don’t run any risk of creating liability. Remember when mass communication consisted of three broadcast TV channels and everything said on them had to be approved by the channel’s “Standards & Practices” department, which censored much more than any law required them to because that was cheaper than fighting? Do you miss those days?

If you’re not that worried about us, that’s fine. Here’s why you should still care. Does your website have a forum? Does your blog allow comments? Do you have a feedback form? A wiki? Could someone post spam anywhere on your site offering sex for money? If so, enjoy your ten years in Federal prison. (And yes, we’ve seen several cases where people engaging in illegal activity find unmonitored corners of sites that allow user-contributed content and use them to communicate. We act to shut that down when we find out about it, but we’re strongly against sending the operators of those sites — or us — to prison for “facilitating” those communications.)

This sort of crackdown on online communication has been attempted several times in the past, usually around intellectual property. (Remember SOPA, PIPA, etc.?) But intellectual property owners, despite being good lobbyists, aren’t very sympathetic public figures. Sex trafficking victims are.

That is definitely reason enough not to pass it. But that’s still not the end of the story.

If you live in the United States and you ever took even a high-school level civics class, you probably ran across the concept of an ex post facto law. This refers to a situation where, if I’m in government and you do something legal that I don’t like, I make a law against it, I make that law retroactive, and then I use it to prosecute you for what you already did. That’s not how law works, and it’s not allowed.

But FOSTA contains this little tidbit:

(b) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment.

Whoops. I guess Mrs. Mimi Walters of California (the author of the text above) skipped civics class. To be fair to Mrs. Walters, the US Constitution is very vague on this point, and the language is convoluted and hard to follow. (“No Bill of Attainder or ex post facto Law shall be passed.” – Article 1, Section 9)

That’s not the only problem, nor is it only my opinion. The US Department of Justice agrees, raising “serious constitutional concern” about the ex post facto nature of the law and states that the is broader than necessary (meaning it criminalizes not only more than it needs to, but also more than the authors think it does). They are also concerned that despite making so much stuff illegal, this bill makes it harder to prosecute the actual sex traffickers.

When the Department of Justice tells you you’re making too much stuff illegal, obviously you take a step back and fix things… unless you’re the US House of Representatives.
In that case, you pass it as-is 388-25.

That’s right, the US House passed a bill that, our own liability concerns aside, makes it harder to prosecute sex traffickers, but criminalizes people speaking out against sex trafficking, including former victims. What the hell? Do sex traffickers suddenly have really good lobbyists?

The bill has now moved on to the US Senate. Internet superhero Senator Ron Wyden of Oregon is doing his best to save us all once again, as he has done so many times before. But he needs our help. If you’re in the US, please call or email your senators today and urge them to send FOSTA back to the drawing board in favor of something Constitutional, limited, and effective. FOSTA is none of those things.

14 Comments

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1. I just read your FOSTA commentary. I am impressed by your views and your discussion of this topic. Sadly, my State (PA) has two Senators who are co-sponsors of this knee jerk thing. Things continue to go downhill in the USA. I am proud to be a (small time, nearly one decade long) NFS member. Thank you,
   – Jim

   Comment by Jim Carroll — March 1, 2018 #

2. Yet another horror in the long line of stupid things coming from US lawmakers. This scares me even from here in Australia, whose government has its nose firmly in US’s arse and has had since at least the War on Terror(TM). If this passes, it’s only a matter of time until something similar is proposed here.

   Comment by Aaron Mason — March 5, 2018 #

3. From the provider liability standpoint (and to the best of my knowledge) Australia doesn’t have these protections in the first place, so they can’t pass a law to undermine what already isn’t there. As for sex trafficking, I don’t have any idea what similarities or differences there are between US and Australian law. -jdw

   Comment by jdw — March 5, 2018 #

4. Dang, I’m in PA too, does that mean there’s nothing I can do about this besides spread awareness?

   Comment by Asutt15 — March 19, 2018 #

5. Sure, it probably won’t help to contact senators that are already on board with this to let them know you’re opposed, but it definitely won’t hurt. There’s a 2/3rds chance that one of them is up for re-election this year. And if nobody complains, you can bet they’ll use that to claim support. If you’re up for calling them, the EFF has a site for that. -jdw

   Comment by jdw — March 19, 2018 #

6. wow, these people really know that the american masses don’t want to be censored.

   and yet they think that if they try again and again, people will slip. well I will spread this and I hope the other of you will to

   CALL YOUR CONGRESSMAN

   Comment by Max Redbaron — March 19, 2018 #

7. The people on the pro-censorship side are all paid lawyers and lobbyists. The people on the anti-censorship side are volunteers and people like us… you and me. You are absolutely right that they just keep trying hoping to eventually wear us down. They will never stop until the money runs out, and the money will never run out until criticizing a big company is punishable by firing squad. -jdw

   Comment by jdw — March 19, 2018 #

8. censorship is bad

   Comment by James McKee — March 19, 2018 #

9. James McKee, this is less about censorship and more “Trying to get various discussions declared illegal under the law!”

   If it was just targeting drawings or something equally artistic, I would not be surprised.

   However this is targeting things like discussions of sex trafficking online.

   Sorry but goes against the First Amendment.

   Comment by Christopher — March 20, 2018 #

10. “Trying to get various discussions declared illegal under the law!” is a decent working definition of censorship. Censorship is absolutely what this is about. -jdw

    Comment by jdw — March 20, 2018 #

11. “The people on the pro-censorship side are all paid lawyers and lobbyists. The people on the anti-censorship side are volunteers and people like us… you and me. You are absolutely right that they just keep trying hoping to eventually wear us down. They will never stop until the money runs out, and the money will never run out until criticizing a big company is punishable by firing squad. -jdw”

    A perfect summary of how it all works, on this and most other political issues.

    Comment by Jim Carroll — March 21, 2018 #

12. Once again the gubmint flies below the radar of rational people, meanwhile seeming to be doing the right thing. Who doesn’t want to stop sex trafficking? I’ll make some contacts.

    Comment by Frank Donahue — March 21, 2018 #

13. FOSTA passed the senate today, 97-2. The unconstitutional parts are still there. The ISP liability damage is still there (Craigslist has already shut down their personal ads with a good, brief summary of the problem.) The parts that put trafficking survivors at risk are still there.

    Sigh.

    -jdw

    Comment by jdw — March 23, 2018 #

14. I was too late.

    I didn’t see anyone say that phone companies and backbone operators should monitor the content of our phone calls, texts, and emails; or that they should be responsible for, say, financial crimes committed using their phone lines. Then we could ask whether the post office should read our letters at the mailing point. They could take classes in finding secret messages hidden in our love letters. We could bring them unsealed to the window.

    I think (I may be outdated on this and I’m not an attorney) free speech and press is Constitutionally protected even for anonymous use, but waiting for that to be applied in court could take several years and the First Amendment doesn’t apply to private regulation.

    I rely a lot on posting to forums. My own questions may not get frequently asked.

    The problems with Facebook may bleed over into this. Bigger providers are bigger targets to a bigger user base composed mainly of computer amateurs who just want everything to work as promised and when the public gets outraged enough then politicians act and so Facebook’s problems (and the difficulty of regulating any foreign nation instead) may cost the rest of us.

    For the next kindred issue, letters to Washington are likely more credible, because bots are notoriously not letter-writers and not first class postage-payers. Short and original are fine. Addresses, postal and maybe online, are at https://www.senate.gov/senators/contact and https://www.house.gov/representatives (both as accessed 3-22-18). Calls work if you can make clear that you’re not a bot (your knowledge is a key). Thank-you letters to those (few) who vote the right way, even from out of district, are often especially appreciated by recipients.

    Comment by Nick Levinson — April 1, 2018 #

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