House Judiciary Passes Bill to Curb Online Sex Trafficking
House Judiciary Committee approval Tuesday of HR-1865 as expected (see 1712110052) to punish online sex traffickers sets up a clash with a similar S-1693 that victims’ rights groups said is better. The committee approved the bill on voice vote with little debate, although ranking member Jerry Nadler, D-N.Y., said he would oppose the amended measure if it moves to the floor as is. The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), sponsored by Rep. Ann Wagner, R-Mo., was amended without being “fully vetted,” Nadler said. The bill has 172 co-sponsors.
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The substitute bill “does not have sufficient support from the vast community of survivors and other advocates who have been pressing for legislation over the last several years to address this important issue,” Nadler said. He asked the committee to postpone consideration to allow more thorough review -- especially by members who may not have had time to review the amended bill released Friday. No members supported his dissent. Wagner, not a Judiciary Committee member, supported the changes, saying the vote “brings Congress one step closer to passing a bill that will finally provide justice for sex trafficking victims.”
Wagner tweeted thanks for the yes vote, saying it's "written for victims and will hold websites that facilitate sex trafficking accountable." Wagner said the bill would give federal, state and local prosecutors "practical tools to hold websites accountable," and is supported by a law enforcement groups, anti-human trafficking groups and a broad tech segment including Apple, CompTIA, the Computer and Communications Industry Association, Engine, i2Coalition, Internet Association, Mastercard, NetChoice and the Software and Information Industry Association.
Victims rights groups spoke against FOSTA, which they had hoped would clarify Section 230 of the Communications Decency Act in response to a federal court ruling in favor of the online classified ad site Backpage.com, sued for allegedly engaging in sex trafficking of minors in violation of the 2008 Trafficking Victims Protection Reauthorization Act (see 1603180035). Backpage prevailed by relying on the 230 immunity provisions extended to websites, said a letter provided to us that 31 victims rights groups sent Tuesday to House Judiciary Committee leaders. FOSTA "makes it nearly impossible" to sue bad actors, the letter said, urging the committee to withdraw the bill.
Wagner's "early leadership was extraordinary," film producer Mary Mazzio told us, but she said the replacement FOSTA was a "rushed" process that resulted in a bill that won't help victims. Mazzio, one of the 31 signers of the letter protesting FOSTA, produced I Am Jane Doe, the story of mothers of sex trafficking victims fighting online sites that feature underage prostitution ads. Mazzio fears FOSTA passage could thwart passage of any legislation due to different legal approaches in House and Senate bills. She and many other victims rights groups supported the Stop Enabling Sex Trafficking Act (S-1693), sponsored by Sens. Rob Portman, R-Ohio, and Richard Blumenthal, D-Conn., and hopes the House will support a measure aligned with SESTA's approach.
TechFreedom called the amended FOSTA a "workable" though not perfect approach to helping fight online sex trafficking. In a letter to Judiciary leaders recommending further amendments, the group praised FOSTs requiring "proof of intent" for litigating offenses, whereas SESTA "turns on a vague standard of 'knowing conduct.'" Focusing on criminal intent "avoids discouraging websites from monitoring their sites to combat sex trafficking for fear of later being accused to have known of trafficking," said President Berin Szoka. The Electronic Frontier Foundation blogged that the updated FOSTA "improves a deeply problematic bill" but still is "the same fundamentally flawed approach to fighting criminal activity online." EFF's chief complaint is that FOSTA and SESTA risk pushing legitimate voices offline while raising more risk of criminal and civil liability for online platforms, the blog said. "Supporting bills like FOSTA and SESTA might help members of Congress score political points with their constituents, but Congress must do better."
Portman tweeted in support of his bill (here). Advocates oppose the House proposal "because they’re concerned it is actually worse for victims than current law," he said in a statement. IBM called SESTA a "more effective" approach, in a letter to House Judiciary Committee members Tuesday. The Senate bill "clears up existing confusion about the scope of Section 230 immunity by clarifying that a civil action for damages brought under the federal sex trafficking law is not prevented by Section 230," it said. The FOSTA substitute doesn't fix the problem of allowing 230 to shield bad actors from liability from damage, it said.