FOSTA – Another Nose Under the Free Speech Tent

A new piece of legislation with the cumbersome name, The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA) is an example of Congress imposing punishment on one type of speech that it finds offensive.  “This bill expresses the sense of Congress that Section 230 of the Communications Act of 1934 (contains the Communications Decency Act) was not intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.

FOSTA is focused on website liability due to the promotion of sex services or personal adverts seeking companionship.  The punishment chosen was the removal of “legal immunity of interactive computer service providers or users for content they publish that was created by others.”  Until FOSTA, websites were able to accept solicitations for unlawful sex acts without exposing the website operator to prosecution.  Typically, those solicitations were posted in the “personals” section.

Upon the passage of FOSTA, Craigslist, Backpage, and Reddit removed relevant adverts and altered their policies on what type of postings are unacceptable.  To the extent that a reduction in adverts for sex services actually protects vulnerable parties, that is a good outcome.  However, to the extent that websites remove information on protective services available to sex workers (e.g. warnings that help avoid specific sexual predators), the reduction in adverts reduces their safety and is collateral damage.

Unfortunately, some commenters focus less on the wellbeing of vulnerable sex workers and more on FOSTA’s impact on freedom of speech.  The Electronic Frontier Foundation described FOSTA as “a bill that silences online speech by forcing Internet platforms to censor their users.”  Arstechnica cites commenters who say FOSTA “won’t actually help victims of sex trafficking and will erode online free speech.”  There is a freedom of speech impact, but it looks miniscule. Furthermore, FOSTA’s pressure on website operators is neither unique and nor the first.

Website operators are being “motivated” by government to avoid accepting sex adverts.  Threat of legislation coerced Twitter and Facebook to cease accepting political adverts from foreign governments or mystery parties without requiring “transparency”—that is, documenting who paid for the advert and whose ideas the advert represents.

Many website operators had been conducting a review of material offered for posting. They would reject materials they considered to be hate speech, defamatory toward the website, or inconsistent with the website operator’s interests.  FOSTA and transparency compliance requires a small additional layer in their review of materials.

Looking ahead, Government is very likely to impose other rules on posted content that require website operators to exclude some content.  The EU’s “right to be forgotten” (RTBF) obligates website operators to erase content about a person that the person wants excluded from public access.  Google has received 2.4 million RTBF delisting requests.

The EU’s massive General Data Protection Regulations (GDPR) will be launched May 25th, 2018.  In Europe, GDPR will heavily influence how information about individuals is edited, stored and protected in Europe.  The EU’s RTBF is being replaced by a less troublesome “Right of Erasure.”  For practical reasons GDPR will influence the cost that US websites incur and the review of content that US websites undergo.  FOSTA was neither the first nor the last reason to be careful about which content should be posted.

While website operators now can be liable for sex service adverts accepted from a customer, they are still immune for customer-posted notices of unlawful activities related to dog fights, class I and II drugs, the sale of body parts, and even murder for hire.  Congress may be cajoled in the future to tighten its permissive grant of immunity for website operators.  Of course, the less Congress does to enforce its biases on speech, the better.

The next round of Congressional action on free speech is likely to come when GDPR clashes with the US perspectives on privacy and freedom of speech – by the end of 2019?

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