In another government shot across the bow at edge providers, the bipartisan Fight Online Sex Trafficking Act (FOSTA) has passed the Senate 97 to 2. It passed the House last month, and now heads to the President's desk, where it will get a warm reception.
"President Donald J. Trump applauds the Senate for passing H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act," the White House said of passage. "This bipartisan piece of legislation takes an important step forward in fighting the despicable act of human trafficking. The legislation empowers Federal, State, and local prosecutors to hold websites accountable for supporting the sale of sex trafficking victims."
The White House was also taking credit for the bill. "Over the last year, the President and his Administration have worked closely with Members of Congress, industry experts, and human trafficking survivors to develop a comprehensive series of bold actions, including this legislation, to end modern slavery in all of its forms."
The bill, which includes the Senate's Stop Enabling Sex Traffickers Act (SESTA) as an amendment, makes social media and other sites liable for “intent to promote or facilitate” sex trafficking.
Related: CCIA Warns About New Online Liability Law
The bill amends Sec. 230 of the Communications Decency Act to clarify that that section, which says internet services cannot be held liable for the actions of third parties, does not prevent enforcement against providers and users of the federal and state laws against sex trafficking. Sec. 230 allows companies to moderate a network without being responsible for all the content posted on it.
Related: CCIA Warns About New Online Liability Law
Some big edge providers—Google, Facebook, Amazon--have argued the bill's unintended consequence is to take a big bite out of the user-generated web traffic comprising the majority of interactions on the web, from blogs to social media posts to picture-sharing.
The bill makes it clear that social media nets and their users are subject to federal and state criminal and civil laws relating to the sexual exploitation of kids and sex trafficking.
Edge providers and computer companies are worried that broad liability for user content strikes at the heart of the social media business model, including by leaving it unclear exactly what will be defined as facilitating illegal conduct and what constitutes reckless disregard or promotion of sex trafficking.
The Internet Association, whose members include Google and Facebook and Amazon--avoided criticizing the bill, which it opposed, but instead emphasized the need for liability protections in Sec. 230.
"CDA 230 is the key tool that allows internet companies to make good Samaritan efforts to fight against trafficking and other forms of abuse without facing broader legal risk for doing so," said the association. "Intermediary liability protections enable virtually all user-generated content online, allowing enormous parts of the internet ecosystem to function. IA will continue our work to preserve Section 230 and prevent attempts to weaken this crucial protection.”
CCIA Warns of New Online Liability Law
IA has said it supports targeted changes to the Communications Decency Act to allow victims of sex trafficking to seek legal recourse. Those could include, for example, an amendment that allows civil suits against online actors with demonstrated "knowledge and intent" to facilitate sex trafficking.
“Unfortunately this bill offers little to improve the goal of fighting sex trafficking and instead could make the problem worse as internet companies risk additional liability from their ongoing efforts to patrol for trafficking on their sites," said Computer & Communications Industry Association President Ed Black. “While senators no doubt have good intentions, the unintended consequences of this bill will deter online platforms’ efforts to alert law enforcement to signs of trafficking. It is disappointing for victims and all those working to stop trafficking that we did not get legislation that would better target the real problem and support solutions.”
The Center for Democracy and Technology was even tougher on the bill, saying it "will lead to censorship of a broad range of speech and speakers while failing to help law enforcement prosecute criminal traffickers."
Bipartisan backers of the bill were focused on cracking down on what they saw as the bill's crackdown on sex trafficking sites, like backpage.com.
"Today’s vote pushes back against the growth of illegal sex trafficking on the internet,” said Sen. John Thune (R-S.D.), chairman of the Senate Commerce Committee. “I congratulate Sen. Rob Portman and his cosponsors who initiated this legislation, witnesses who testified at our committee in favor of cleaning up sites frequented by traffickers, technology companies who worked to grow consensus around the reform, and my colleagues on the Commerce Committee who gave this important accountability reform the panel’s unanimous approval.”
"We simply cannot sit idly by any longer while websites aid and abet child sex traffickers," added Sen. Bill Nelson (D-Fla.), ranking member of the same committee. "The cost of further inaction is far too high."
“This is a major step forward not only for families of children who were trafficked, but for everyone who cares about holding tech giants accountable to the rule of law,” said John M. Simpson, Consumer Watchdog Privacy and Technology Project Director.
Tech policy advocate Engine, which bills itself as the voice of startups, said the bill won't help stop sex trafficking but could help hip innovative companies in the bud.
“We are disappointed that the Senate has now joined the House in adopting legislation that won’t make it easier for prosecutors to stop sex traffickers but may hurt small startups," said Engine Policy Director Rachel Wolbers. "We fully support the underlying goal of the bill—reducing online sex trafficking—but we are concerned that the final version of the bill will do little to address trafficking while creating new headaches for prosecutors and startups.
The Consumer Technology Association, which represents companies big and small, was similarly concerned.
"Sex trafficking is a horrific crime, but in addressing this, the Senate has passed a major revision to U.S. criminal law outside of usual processes, despite the Department of Justice warning the bill may be unconstitutional and will make it harder to prosecute sex traffickers," said CTA President Gary Shapiro. "We urge an implementation of this law that minimizes harmful consequences on lawful U.S. businesses, especially small businesses and startups.
"We remind Congress that Section 230's intermediary liability limitations are the legal bedrock for U.S. leadership of the global internet economy. Congress should refuse further requests to weaken Section 230, especially those brought forward by legacy businesses and disrupted competitors."
Not surprisingly, the National Center on Sexual Exploitation (NCOSE) was celebrating what it labeled a historic victory.
“It is difficult to quantify the magnitude of this victory for victims of online sex trafficking," said vice president of policy Lisa Thompson. "Passing FOSTA-SESTA was the only adequate legislative solution to the incredible injustices they have suffered."
