In April of 2018, a pair of related bills known as the SESTA/FOSTA package were quietly signed into federal law. Despite the public efforts of organizations like the Electronic Frontier Foundation (EFF), Sex Workers Outreach Project(SWOP), and the American Civil LIberties Union (ACLU) in protest, there was little mainstream media coverage of the bills’ journey through Congress and most Americans were not aware that anything had changed.
What is SESTA/FOSTA?
SESTA was presented to the Senate in August of 2017 by Ohio Senator Rob Portman with the extended title of the “Stop Enabling Sex Trafficking Act” or S.1693. The original language of the bill stated that its aim was to “clarify” that the Communications Decency Act does not prohibit enforcement against “providers and users of interactive computer services” (since the CDA was written in 1934 when there were no “interactive computer services”) of Federal and State law relating to sex trafficking. Essentially stating that providers and users of these services could be prosecuted for the actions of users (the intentionally poorly defined concept of) “facilitating trafficking.”
So the people who run Twitter – say – would be liable for tweets posted (without their explicit knowledge, since these platforms are often designed to operate relatively autonomously) by individuals deemed to be “facilitating trafficking.”
FOSTA, meanwhile, began its journey in the House of Representatives as the (Allow States to) Fight Online Sex Trafficking Act, introduced by Ann Wagner from Missouri (who had introduced similar legislation previously attempting to make any sex work ads posted online Felony-grade offenses). While sharing a great deal of similar language, this house incarnation added the ingeniously opaque “and for other purposes,” clause to the end of the “does not prohibit enforcement for sex trafficking” paragraph. Now, not only would internet platforms be required to police their users for potential sex trafficking, but potentially for any “other purposes” the Federal government deemed unacceptable later on.
The two bills were passed with overwhelming support and would be merged together to form the FOSTA-SESTA Package, which was signed into law by President Trump in April.
So, what does that really mean?
SESTA/FOSTA effectively amended the Communications Decency Act (CDA 230) with deliberately broad and vague language in an effort to give the federal government greater authority over public online platforms held by private companies (Twitter, Facebook, Wikipedia, online classified ads, and dating sites are all included) and an ability to hold the operators of those platforms libel for user-generated content posted to their systems.
Well, that sounds bad.
It is bad. Some important people have explained precisely why it’s bad:
The EFF’s Executive Director stated: “Shifting more liability to Internet platforms for their users’ speech will inevitably lead to those platforms more tightly monitoring and restricting users’ activities. Again and again, when platforms clamp down on their users’ speech, marginalized voices are the first to disappear.”
Is this just about classified ads and social media?
It isn’t. The issue with the ill-defined language of the bills (now law) is that they fail to specifically define very important qualities. Because of this, speech policing (so that internet platforms could avoid the prosecution of their owners and operators) would also extend to information platforms like MetaFilter and Wikipedia.
The Executive Director of Wikimedia (the NP behind Wikipedia): “The integrity of CDA 230 [The Communications Decency Act] is crucial to preserving community-driven resources like Wikipedia. Wikipedia is a part of everyday life for hundreds of millions of people, answering questions from the meaningful to the mundane. It is written and maintained by hundreds of thousands of volunteer contributors who work together to create reliable, neutral information, all governed by community-created policies. Wikipedia’s success is possible in large part due to CDA 230.”
But I don’t have anything to do with trafficking.
It probably doesn’t matter. The implications for platforms are so grave that they will be forced to restrict/refine/moderate the very words their users are allowed to use on their websites and to ban or restrict other users entirely because of suspected associations. Under FOSTA/SESTA free speech online becomes a de facto impossibility.
Anyone using US-based internet services or software will be impacted. From GMail to Yelp.
What’s happened since it became law?
A number of independent sites have shut down or vanished from the internet, in addition to the widely publicised shuttering of Craigslist’s Personals section. Some international sites have begun to block US-based viewers, based on their IP address.
While there has been no official report on the efficacy or effects of FOSTA-SESTA, there have already been many anecdotal reports of increased street sex work, attempts by sex workers to seek advice for how to ply their trade without using the internet, increased activity of "pimps" attempting to prey on vulnerable sex workers, and an immediate increase in the disappearances and deaths of sex workers.
There has been no indication or evidence that law enforcement has been able to uncover and prosecute sex trafficking more effectively.
What happens now?
Some websites and platforms will continue to operate the way they always have. Some will begin (or continue) reporting users or behavior to the NSA or DHS. What we know is that SESTA/FOSTA arguably does little to address or challenge global sex trafficking, and instead takes away tools and platforms that allow marginalized or more poorly resourced groups to operate more safely. Websites and services designed to facilitate safe advertising, client screening, and communication practices, are now potentially on the hook for a Federal crime.
Some have already begun to vanish.
A lawsuit filed by the EFF and the Woodhull Foundation challenging the constitutionality of FOSTA-SESTA was dismissed in September of 2018. An appeal is pending.