Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)

For the past year, I’ve been covering Congress’ efforts to create a sex trafficking exception to Section 230’s immunity. From the beginning, it was clear that the proponents did not understand Section 230’s powerful but counter-intuitive doctrinal mechanisms, yet their initiative to gut Section 230 had momentum. Two bills were introduced: SESTA in the Senate and FOSTA in the House. Both bills as introduced were terrible.

After a Senate Commerce Committee hearing, SESTA was amended to fix some of its roughest edges, but the amendments didn’t resolve SESTA’s structural flaw (I’ll discuss that below). As part of a House Judiciary Committee hearing, FOSTA as introduced was replaced by substitute FOSTA, which still had problems but represented a more productive approach to address sex trafficking. Amended SESTA and substitute FOSTA passed the Senate Commerce Committee and House Judiciary Committee, respectively, queuing both up for passage by their respective chambers. However, amended SESTA has been slowed by Sen. Wyden’s hold; and for reasons that aren’t clear to me, the House Judiciary Committee didn’t report substitute FOSTA until last week. Ten days ago, the House Energy & Commerce Committee waived jurisdiction over FOSTA to help get the bill on the House floor.

Ever since substitute FOSTA emerged, one of the key questions has been how Senate and House might reconcile the different policy approaches in SESTA and FOSTA if both advanced. No one I spoke to, not even the inside-Congress experts, were confident in their predictions. Last week, a backroom deal was announced that apparently answers that question, but in substantively and procedurally deficient ways. This is BAD NEWS.

FOSTA is scheduled for a House floor vote this week, maybe TOMORROW. The deadline for proposed amendments is this morning. One amendment, attributed to Rep. Mimi Walters, is what I’ll call the “Worst of Both Worlds” FOSTA [FN]. Read its text, and see a redline between the proposed amendment and substitute FOSTA. It would convert substitute FOSTA into a FOSTA + SESTA Frankenstein combination. Essentially, the amendment takes the most plaintiff-favorable pieces of FOSTA and SESTA and creates a superset of both bills’ worst provisions.

[FN] This title is partially an inside joke. In Internet Law, I teach the decade-old Ticketmaster v. RMG case, which involved robots quickly acquiring tickets for the “Best of Both Worlds” concert series featuring Miley Cyrus singing as herself and also singing as her then alter ego Hannah Montana. Presumably, the “Best of Both Worlds” title signals that concert-goers can enjoy two acts (Miley and Hannah) for a single ticket price. But my in-class joke is that, to me, the concert sounds like you’d be getting the worst of both worlds. Sorry, a little sarcastic humor at Miley Cyrus’ expense.

A likely scenario is that the entire House will approve the Worst of Both Worlds FOSTA amendment, overwriting the current substitute FOSTA version approved by the House Judiciary Committee. The House will likely approve FOSTA in its post-amendment final form, whatever terms it contains. So if the Worst of Both Worlds FOSTA amendment gets approved, it will likely be then approved by the House and sent to the Senate. The Drudge Siren is back.

What the Worst of Both Worlds FOSTA Would Do

Because the Worst of Both Worlds FOSTA combines two already-complex bills, the proposed amendment is extremely complicated, and many of the smart folks I’ve consulted about the proposal are confused by its implications. Here is a summary of itsg main provisions:

a) it would add Congressional senses that Section 230 wasn’t meant to limit sex trafficking enforcement.

b) it would create a new crime of intentionally promoting or facilitating prostitution, with aggravations for doing so for 5+ people or in reckless disregard that it involved sex trafficking. There is an affirmative defense for advertising in communities where prostitution is legal.

c) it would add a civil cause of action for any victims of (b). The civil claims would be subject to Section 230’s immunity, but the statute would expressly reiterate what Section 230 already says: that it doesn’t apply if the defendant was responsible, in whole or part, for the content.

d) it would create mandatory restitution for victims of (b).

e) Section 230 would exclude any civil claims where the victim can prove a violation of the federal sex trafficking crime.

f) Section 230 would exclude any state criminal prosecution where the state can prove a violation of the federal sex trafficking crime.

g) Section 230 would exclude any state criminal prosecution where the state can prove a violation of (b).

h) all of the foregoing would apply retroactively to conduct before the act’s passage.

i) the existing federal sex trafficking crime would be expanded to cover “knowingly assisting, supporting, or facilitating” sex trafficking.

j) state AGs may bring a “parens patriae” civil claim for federal sex trafficking violations.

k) a “savings” clause says the new law wouldn’t affect any claims that existed at the time of the act’s passage.

Comments on the Worst of Both Worlds FOSTA

I’ve previously discussed my objections to both SESTA as amended and substitute FOSTA in great detail. See the links at the bottom of this post. The highlights:

Amended SESTA bases liability on “knowingly assisting, supporting, or facilitating” sex trafficking. This “knowing” scienter creates what I’ve described as the Moderator’s Dilemma, where any efforts to moderate third party content–even content totally unrelated to sex trafficking promotions–may cause the Internet service to “know” the content and thus create liability. As a result, liability based on knowledge pushes Internet companies to adopt one of two extreme positions: moderate all content perfectly, and accept the legal risk for any errors; or don’t moderate content at all as a way of negating “knowledge.” The Moderator’s Dilemma is bad news because it encourages Internet companies to dial-down their content moderation efforts, potentially increasing the quantity of “bad” content online–including, counter-productively, the quantity of now-unmoderated sex trafficking promotions. Furthermore, we don’t have any caselaw to clarify what constitutes “knowledge” of content because Section 230 has made that question legally irrelevant for over two decades (knowledge is irrelevant to Section 230’s availability, at least for now).

Substitute FOSTA took a very different approach. It used an intent-based scienter, which is easier for Internet companies to manage; yet surprisingly, many prosecutors preferred substitute FOSTA because they can prosecute intent to promote prostitution more effectively than knowledge of sex trafficking (which requires things like knowledge of the victim’s age or coercion of the victim–facts that are harder to prove). So substitute FOSTA is more likely than SESTA to be used by prosecutors and less likely than SESTA to discourage content moderation by Internet companies–both of which are benefit victims of sex trafficking.

Worst of Both Worlds FOSTA brings all of SESTA’s worst aspects into FOSTA, which I think likely undermines the substitute FOSTA’s solution. It’s easy to see why the frankenstein bill will appeal to legislators; they will likely think “if FOSTA is good, FOSTA + SESTA must be better!” However, because of SESTA’s structural flaws, Internet companies are still likely to encounter the Moderator’s Dilemma, while prosecutors are likely to ignore the extra criminal powers imported from SESTA. Therefore, SESTA + FOSTA isn’t necessarily additive; the sum may be less than its parts.

A general comment about political machinations: substitute FOSTA was supposed to be as an alternative to SESTA, and SESTA opponents got a glimmer of hope that the House Judiciary Committee’s hard work on substitute FOSTA would steer the effort to a better place. But if substitute FOSTA gets combined with SESTA, arguably SESTA opponents will end up with a worse outcome than if the House hadn’t taken the substitute FOSTA detour and had instead adopted amended SESTA verbatim. Insert “thinking emoji.”

What Others Are Saying about the Worst of Both Worlds FOSTA

* Engine put together a one-pager on SESTA vs. FOSTA:

FOSTA is a carefully crafted bill. SESTA has not been considered by either committee of jurisdiction in the House. Attaching SESTA at the final hour deprives the language of any meaningful process….An issue this serious and complex affects all online platforms. It’s particularly bad for startups that don’t have the resources to navigate nebulous legal liability or frivolous lawsuits. The internet is too important for Congress to rush through legislation without fully weighing all of the consequences.

* TechFreedom’s media release includes a statement from Berin Szoka:

The best of intentions won’t stop SESTA from harming those it aims to protect….The process failure here is shocking: the Senate passed, and the House seems about to pass, a bill making major changes to federal criminal law that has not been reviewed by the Judiciary Committee in either chamber. As the letter concludes: “There is simply no excuse, or reason, for rushing through a bill that ends up hurting the victims of sex trafficking.”

* “CDT Opposes Latest Threat to Hosts of Online Content” includes a statement from Emma Llanso:

By combining some of the most expansive parts of both SESTA and FOSTA, the House bill would create a confusing mashup of overlapping forms of federal and state criminal and civil liability for internet intermediaries.

The practical result of this legal risk for intermediaries will be broad-based censorship. Smaller platforms will also face the real risk that a single lawsuit could put them out of business. This bill jeopardizes not only classified ads sites but also dating apps, discussion forums, social media sites, and any other service that hosts user-generated content….

Sex trafficking is a serious crime and Congress ought to ensure that law enforcement officials have the resources they need to bring traffickers to justice. But that requires thoughtful, open deliberation over the merits and shortcomings of different approaches, not rushed backroom deals that merge two distinct bills with no discussion of the consequences.

* Mike Masnick at Techdirt, “Mistakes And Strategic Failures: The Killing Of The Open Internet.” A devastating critique of how policy-making went wrong.

* Cathy Gellis at Techdirt, “Section 230 Isn’t About Facebook, It’s About You”

* FreedomWorks, “Key Vote NO on the Walters Amendment to the Allow States and Victims to Fight Online Sex Trafficking Act, H.R. 1865“:

[Worst of Both Worlds FOSTA] will drastically hurt competition in the internet service provider space by ensuring that only giant social media platforms and tech companies will be able to hire lawyers and teams to comply with this new, broadly-worded law, driving small competitors that improve quality and drive down prices out of the market entirely for fear of the new legal risk posed by publishing third-party content.

* “Wagner Trafficking Bill Headed To House Floor” includes a statement from Rep. Anne Wagner:

Online trafficking is flourishing because there are no serious, legal consequences for the websites that profit from the exploitation of our most vulnerable. This FOSTA-SESTA package will finally give prosecutors the tools they need to protect their communities and give victims a pathway to justice

It also says that Worst of Both Worlds FOSTA “would clarify that section 230 of the Communications Decency Act (CDA) does not prevent states and victims of sex trafficking from pursuing justice against America’s modern-day slave markets.”

* Separately, Rep. Ann Wagner sent out an email to her Congressmember colleagues supporting the Worst of Both Worlds FOSTA, saying it “reinstates critical, pro-victim sections of the original bill.” [Side note: Rep. Wagner’s office publicly backed substitute FOSTA, which overwrote her original bill, but these latest pronouncements exacerbate my lingering confusion about her enthusiasm for the substitution.] Her email also prominently includes this quote:

“We applaud the House’s efforts to reach consensus on this important legislation that allows platforms to combat sex trafficking while giving victims the opportunity to seek justice.”  — Erin Egan, Vice President of US Public Policy, Facebook

Did Facebook really come out in support of the Worst of Both Worlds FOSTA? Whoa. [UPDATE: It’s confirmed that Sheryl Sandberg and Facebook have backed the Worst of Both Worlds FOSTA.]

The House Judiciary Report on Substitute FOSTA

When the House Judiciary Committee reported substitute FOSTA to the full House, it also released a committee report on substitute FOSTA. Though substitute FOSTA may be dead, the report will still apply to its residual provisions in the Worst of Both Worlds FOSTA.

The report clarifies substitute FOSTA’s targets: “Some websites have gone beyond merely hosting advertisements, however, and have purposely created platforms designed to facilitate prostitution and sex trafficking. Because of [Section 230], it has been challenging to hold bad-actor websites accountable criminally (at the state level) and civilly.”

The report explains why substitute FOSTA would help prosecutors more than amended SESTA:

current federal criminal law, which is unaffected by the CDA, presently lacks proper prosecutorial tools to combat these websites. Though under 18 U.S.C. § 1591, a website may be held criminally liable for knowingly advertising sex trafficking, this knowledge standard is difficult to prove beyond a reasonable doubt. This is so because online advertisements rarely, if ever, ibndicate that sex trafficking is involved. The advertisements neither directly nor implicitly state that force, fraud, or coercion was used against the victim, nor do they say that the person depicted being prostituted is actually under the age of 18. Because these indicia of knowledge of criminality are typically lacking in the advertisements, federal prosecutors usually cannot demonstrate beyond a reasonable doubt that the website operators knew that the advertisements involved sex trafficking. Further, general knowledge that sex trafficking occurs on a website will not suffice as the knowledge element must be proven as to a specific victim. Moreover, sex trafficking cases are often difficult to prosecute because the victims are often uncooperative due to the traumatic effects of having been trafficked, may have issues with illegal substances, and may sometimes appear unsympathetic to juries. A new statute that instead targets promotion and facilitation of prostitution is far more useful to prosecutors. Prostitution and sex trafficking are inextricably linked, and where prostitution is legalized or tolerated, there is a greater demand for human trafficking victims and nearly always an increase in the number of women and children trafficked into commercial sex slavery.

H.R. 1865 will allow vigorous criminal enforcement against all bad-actor websites, not just Backpage.com, through the creation of a new federal law and by explicitly permitting states to enforce criminal laws that mirror this new federal law and current federal sex trafficking law. With this robust criminal enforcement, victims will have more opportunities to obtain restitution. Furthermore, this enforcement will also provide victims with information that will be sufficient to establish successful civil pleadings, by revealing the extent of content development in which these websites engage.

The report tries to ameliorate the Moderator’s Dilemma by indicating that criminal intent could not be shown by content missed by the Internet service:

promotion or facilitation must be deliberate; thus, the operator of a facility or means of interstate or foreign commerce shall not be deemed to have [intent] based on the appearance of material promoting unlawful prostitution of another person, where the material appears despite the operator’s good faith efforts to moderate, remove, or restrict such material from appearing on or through the facility

The report clarifies the permissibility of prostitution ads where they are legal:

Many websites promoting prostitution are targeted to specific geographic areas, though the website itself may be accessible nationwide. Mere accessibility to a website with targeted advertisements from another locality where promotion or facilitation of prostitution is illegal, alone, will not undermine a defendant’s successfully established affirmative defense.

The CBO’s analysis: “CBO expects that the bill would apply to a relatively small number of offenders, however, so any increase in costs for law enforcement, court proceedings, or prison operations would not be significant….any additional revenues and associated direct spending would not be significant because the bill would probably affect only a small number of cases. ”

What Happens Next

As part of my testimony on SESTA at the Senate Commerce Committee, I proposed an amendment to ameliorate the Moderator’s Dilemma. While my proposal would be a nice-to-have for substitute FOSTA, it’s essential to redress SESTA’s structural flaw, and so it’s essential for the Worst of Both Worlds FOSTA. I’m hoping it will be introduced as a proposed amendment before the deadline, though I’m not optimistic.

The EFF has organized a drive to call legislators to express opposition to Worst of Both Worlds FOSTA. Please take a break from reading this post RIGHT NOW to CALL your Senators and Representative and tell them not to cut any procedural corners on such important topics and that you oppose any bill that creates a Moderator’s Dilemma. (CALL! Emails are worthless). It seems highly unlikely that the calls can scuttle substitute FOSTA from passing, but there is a very slim chance they will thwart the Worst of Both Worlds FOSTA amendment.

If the Worst of Both Worlds FOSTA gets passed by the House, the bill should be routed (based on its federal crime implications) to the Senate Judiciary Committee, which never did a hearing on SESTA. I don’t understand Senate procedure well enough to know if that would actually happen. Sen. Wyden’s hold might still slow things down, but House passage of FOSTA (whether substitute FOSTA, Worst of Both Worlds FOSTA, or something else) would make its passage in the Senate seem inevitable.

Whatever happens with FOSTA/SESTA, it’s clear that Section 230 doesn’t have enough friends in this Congress to preserve its structural doctrinal integrity from further challenges. Thus, I think historians will look back at 2017 as Section 230’s high water mark.

More SESTA/FOSTA-Related Posts:

* What’s New With SESTA/FOSTA (January 17, 2018 edition)
* New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
* How SESTA Undermines Section 230’s Good Samaritan Provisions
* Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
* Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
* Another SESTA Linkwrap (Week of October 30)
* Recent SESTA Developments (A Linkwrap)
* Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
* An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post)
* The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
* Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
* My Senate Testimony on SESTA + SESTA Hearing Linkwrap
* Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
* Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
* Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
* How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
* Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity