Congress went and did it.
Today was a dark day for the Internet.
The U.S. Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to censor their users. As lobbyists and members of Congress applaud themselves for enacting a law tackling the problem of trafficking, let’s be clear: Congress just made trafficking victims less safe, not more.
Sex trafficking sounds like a terrible thing, and it is, provided trafficking had a meaningful legal definition. It doesn’t. It’s a scary word that conjures up images of swarthy evil men driving trucks with young slave virgins to smoky rooms with purple velvet chaises. If that was what we were talking about, maybe a law could be fashioned to stop it and we would all applaud. But it’s not.
Advocates and Congress know two things. The first is that writing narrow, constitutional laws is hard, and often impossible, even when there’s an issue that evokes a public response of “something must be done.” So they punt on the law and cover up their slacker ways with a vague word like trafficking. We’re suckers for vague scary words that don’t actually have any meaning.
Second, if they can create sufficient panic that a small problem, or non-problem, is not just real, but huge, they can get away with anything. This is the tyranny of the anecdote at work, a horrifying story about some young woman stolen on her way home from church and sold into sex slavery. What decent human being wouldn’t be outraged by this? Who would stand in the way of something being done to save the next young woman? That’s the power of an appeal to emotion to a nation of deeply empathetic, if shallow, citizens.
But even if this were a sufficiently real problem to warrant attention beyond the anecdote, and even if the problem needed new law rather than better enforcement of existing law, and even if new law actually helped to fix the problem, the moral panic and vague words upon which Congress relies in fashioning its law carries other baggage along with it.
FOSTA/SESTA is unconstitutional. But before you take comfort in assuming the Supreme Court will toss this mutt of a law out the window, it will be years before anything of the sort happens, and there will be impacts, primary and secondary, that can’t be undone in the meantime. Like what?
It’s not like people didn’t warn about this. But, following Congress passing SESTA (likely to be signed soon by the President), a bunch of sites are already starting to make changes. Craigslist is probably the most notable, announcing that it was completely shutting down its Personals Section.
It was Craigslist, then Backpage, that got the prudent Kamala Harris’ carceral impulses pumping. There were ads for prostitution in there, and Harris couldn’t stand this crime happening right before her eyes. The rest is history.
Much as law enforcement was incapable of dealing with offenses directly, the easier answer was to shut down sites where their wares were offered for sale. Except the sites were immune under the safe harbor of Section 230 of the Communication Decency Act, which protected sites from liability and culpability for what was said and done by others and hosted by them. Today, we call this the internet.
SESTA/FOSTA undermines Section 230, the most important law protecting free speech online. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, the Internet would look very different. It’s likely that many of today’s online platforms would never have formed or received the investment they needed to grow and scale—the risk of litigation would have simply been too high. Similarly, in absence of Section 230 protections, noncommercial platforms like Wikipedia and the Internet Archive likely wouldn’t have been founded given the high level of legal risk involved with hosting third-party content.
The primary goal of the new law was to silence sites like CraigsList and Backpage, but the secondary effect was to flow through all platforms that were either peripherally connected to any site involved or somehow aggregated content that was peripherally related.
Importantly, Section 230 does not shield platforms from liability under federal criminal law. Section 230 also doesn’t shield platforms across-the-board from liability under civil law: courts have allowed civil claims against online platforms when a platform directly contributed to unlawful speech. Section 230 strikes a careful balance between enabling the pursuit of justice and promoting free speech and innovation online: platforms can be held responsible for their own actions, and can still host user-generated content without fear of broad legal liability.
If a website was engaged in illegal conduct, Section 230 didn’t protect it. It merely protected the host for the illegal conduct of others who might use the site. This new, retroactive law, removes Section 230 for sites that “promote or facilitate prostitution.” SJ hosts a Cross of the brilliant and beautiful sex worker advocate Maggie McNeill. Is that now a crime? Probably not, but it could be. Do I want to spend the next few years fighting prosecution over it?
Then there’s the tertiary effect. Now that the wall of Section 230 has been breached, what other moral scolds will demand that their cause too compels removal from Safe Harbor protection? Drugs? Hate speech? Guns?
For now, comments are open at SJ. Do you think, however, that I’m willing to go to prison so Billy Bob can enjoy his catharsis between bottles of Colt 45?
There are many who believe the internet has gotten out of hand, who believe there is some way to control the internet so that their “nice” people can utter heartwarming phrases and validate the feelings of those who share their sorrows. These are the people who won’t, who can’t, see why any of this could present a problem. After all, why should all the people who say and think things with which you disagree get to ruin it for you? And isn’t sex trafficking horrible, so even if this saves only one young woman, isn’t that reason enough to destroy the internet as we know it?