Competing Online Sex Trafficking Bills See Rival Views Clashing
Parts of the tech industry came under nearly as much fire as sex traffickers Tuesday with an at-times heated panel discussion on the House's Fight Online Sex Trafficking Act (FOSTA)(HR-1865) vs. the Senate's Stop Enabling Sex Trafficking Act (SESTA)(S-1693). "I don't understand why you have these entrenched interests slinging arrows," said former federal prosecutor Francey Hakes.
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Pushing SESTA, Catholic University law professor Mary Leary said it clarifies Section 230 of the Communications Decency Act. Numerous courts have misinterpreted Section 230 -- which indemnifies online platforms from being responsible for third-party user content -- to mean absolute immunity for online platforms, and SESTA makes it clear 230 protections don’t apply to sex trafficking, Leary said. Congressional intent has been clear on combating sex trafficking, including the right of victims to sue sex traffickers and partners, she said. But in case after case, those victims were denied access to courts, Leary said. SESTA also defines participation in a joint venture to include assisting or supporting sex trafficking, she said.
Backing FOSTA, TechFreedom President Berin Szoka said the SESTA standard is knowing conduct of sex trafficking, but FOSTA starts with a baseline offense of promoting prostitution, which is easier to prove. It also avoids "the moderator's dilemma" of encouraging online platforms to not pay attention to activity on their sites, he said. Both bills open the door to state prosecution under laws that mirror federal laws, but FOSTA arguably does it better since states won't have to update their laws, he said.
The tech community in general has been "tone deaf" in how handles policy arguments, said U.S. Naval Academy Center for Cyber Security assistant professor Jeff Kosseff. "This is not net neutrality, this is the sale of children," he said. Kosseff said he sees plusses in both bills, such as FOSTA's intent standard and the explicit civil exception in SESTA, and hopes for a compromise version that merges them. Replied Szoka, marrying the two "would be a disaster," and instead FOSTA should be improved.
Szoka said FOSTA will lead to more monetary compensation for victims, since it will kick off more criminal investigations and convictions that turn up evidence for civil prosecution. He also said FOSTA civil liability is tied to showing a website had reckless disregard for victims’ ages, resulting in a lower bar for civil liability than SESTA. And when there's criminal prosecution under FOSTA, victims get mandatory damages, Szoka said.
Hakes said the House legislation gives prosecutors tools they don't have now, adding prosecution is simpler when having to prove prostitution. FOSTA isn't perfect, but it’s “an easier piece of legislation” particularly for state prosecutors, Hakes said.
FOSTA creates "a giant loophole" by creating a route to an affirmative defense by claims the online advertising was targeting audiences in areas where prostitution is legal, such as Mexico or parts of Nevada, Leary said. Replied Szoka, that situation is "an extreme edge case." Leary and Szoka also disagreed which bill had broader support.