Lawmakers on Capitol Hill are eager to pass legislation this year that combats online sex trafficking, but proponents face a two-front fight from victims’ advocacy and digital rights groups.
The House and Senate versions of the bill each attack the issue of online sex trafficking differently, but aim to shut down websites that facilitate trafficking.
Both the House’s bill, FOSTA, and the Senate’s bill, SESTA, have garnered support from a wide swath of lawmakers in their respective chambers. But outside the halls of Congress, victims’ advocacy groups fear FOSTA lacks the necessary tools for victims of sex trafficking to challenge websites in court.
Internet activists, meanwhile, are warning SESTA would stifle free speech and innovation.
Still, Sen. Rob Portman, R-Ohio, and Rep. Ann Wagner, R-Mo., who sponsored the bills in their respective chambers, are eager to charge forward.
“I would contend that FOSTA, as it stands now, is very strong in advocating for our victims,” Wagner told the Washington Examiner. “My goal is not to have victims. If we’re able to bring down these websites through criminal prosecution, there will be fewer victims.”
FOSTA is short for the Allow States and Victims to Fight Online Sex Trafficking Act. The bill was amended and passed out of the House Judiciary Committee last month. New language in the bill allows state and local prosecutors to use sex trafficking laws and promotion or facilitation of prostitution laws to go after websites.
The bill makes it a federal crime to facilitate online prostitution and criminalizes websites “with the intent to promote or facilitate the prostitution of another person.” Additionally, it adds an amendment to Section 230 to allow for state and local prosecutions under state law if the actor “acts in reckless disregard of the fact such conduct contributed to sex trafficking.”
“FOSTA is by far the toughest anti-sex trafficking crime bill that will actually shut down these bad-actor websites,” Wagner said.
But Mary Mazzio, the writer and director of “I am Jane Doe,” a documentary about the legal battle mothers of sex trafficking victims fought against Backpage.com, wrote in an op-ed last month that the latest version of FOSTA benefits the tech community. Mazzio called on the bill’s 173 co-sponsors to withdraw their support.
“The bill, which now amends the Mann Act, fails to address the Section 230 problem identified in the 1st Circuit, and worse, strips away civil remedies from survivors as well as states’ attorneys general,” she wrote. “The language also appears to permanently foreclose all private rights of action which victims currently have under the federal trafficking statute.
“In addition, some prosecutors are worried about the high standard of proof (specific intent to facilitate prostitution) and whether this new bill now requires specific intent to facilitate interstate prostitution,” Mazzio added. “The net result is a new bill which genuflects to the altar of business practices and profitability where children and trafficking victims are collateral damage.”
To Wagner, though, the idea that the legislation ignores the victims of sex trafficking and cowers to the demands of the tech community couldn’t be further from the truth.
“My number one input, and who I listen to, are the victims’ advocates and our prosecutors and law enforcement with bringing these sex trafficking websites to justice,” she said. “We’re going to do what’s in the best interest of putting an end to all of these websites, and safeguarding the justice and the rights of our victims.”
Some tech heavyweights, such as the Internet Association, a trade association representing Google, Facebook, and Reddit, are backing FOSTA, and even Aaron Mackey, a staff attorney at the Electronic Frontier Foundation, contends it’s a better bill than SESTA, its Senate counterpart.
But Mackey is still concerned with how the legislation will affect what Internet users are allowed to post on websites.
“[FOSTA] is slightly better, but it’s still a bad bill, and it will still result in harmful consequences to drive speech away from online platforms and basically push people offline,” Mackey said.
He said he fears online platforms will restrict any type of content that “reasonably comes close to talking about basic sexual activity that may be construed later as an ad for prostitution.”
He also warned that though FOSTA may be a better bill than its Senate counterpart, it creates a liability for platforms.
“You’re going to see in the wake of something like this an increasing amount of content moderation or filtering or taking down any speech that talks about sex or anything like that, even if it’s perfectly protected,” he said.
When SESTA, or the Stop Enabling Sex Traffickers Act, was introduced last year, the tech community raised the same concerns that Mackey did about FOSTA.
Then, major Internet companies such as Google and Facebook, and the Internet Association, announced their opposition to the bill because of its changes to Section 230.
But they have since come around to the legislation.
“Important changes made to SESTA will grant victims the ability to secure the justice they deserve, allow Internet platforms to continue their work combating human trafficking, and protect good actors in the ecosystem,” Michael Beckerman, president of the Internet Association, said last year.
SESTA also gained some stable footing in the upper chamber this month after three Republican senators signed on as co-sponsors of the bill, bringing the total to 63 as of Jan. 9.
With the boost of support, SESTA can now withstand a filibuster and likely pass the Senate if it is brought to the floor for a vote.
The bill, sponsored by Portman and Sen. Richard Blumenthal, D-Conn., amends Section 230 so websites that facilitate sex trafficking can be held liable, and allows for civil suits related to sex trafficking.
But despite the overwhelming support from within the Senate, Sen. Ron Wyden, D-Ore., who helped draft Section 230 of the Communications Decency Act more than 20 years ago, raised concerns about SESTA and placed a hold on the bill in November.
He did, however, warm to the House’s FOSTA, which he called a “smarter, more effective approach” to targeting sex traffickers.
The House and Senate bills, though, deal with different federal laws, which could complicate discussions should the two chambers meet to reconcile their differences in a conference committee once each of them have passed.
Wagner said she hopes the “strong criminal aspect” of FOSTA would be addressed, but stressed she isn’t looking for speed when it comes to passing the legislation out of the House.
“It doesn’t have to be fast,” she said. “It just has to be right.”
Portman, though, said it’s time for the Senate to act, and noted the significance of passage this month, which President Trump proclaimed “National Slavery and Human Trafficking Prevention Month.”
“We shouldn’t wait any longer to pass this bill in the Senate,” he said on the Senate floor. “Every day we do, those who sell women and children will be allowed to continue that, continue to profit, and victims will continue to be denied justice. It’s not an issue of politics or partisanship; it’s about preventing exploitation and providing justice.”
