Thanks for the link! It looks like Levy also edited this section of the article to address the affirmative defense factor. Honestly, I think the legal nuances here are a little out of my depth. I was researching this law as part of a project for a social work class, and I don’t have much experience with interpreting statutes. But it is definitely helpful to have the primary source to verify and refer back to! Thanks for your reply

I am posting this to clarify, since my previous post was much too brief. This post is not intended as legal advice. Each person dealing with this law should seek and retain their own legal counsel so they can apprise that counsel of their own individual facts (you will see why that is particularly important in a moment here).

There is an affirmative defense to violations of FOSTA if the defendant can prove that prostitution is legal in the jurisdiction “where the promotion or facilitation was targeted.” (Make sure you look at what “promotion” and “facilitation” means under this law.) This could be tricky in Nevada where, as I understand, prostitution is only legal in certain counties. Since this is an affirmative defense, the burden of proof is on the defendant (assumed guilty until you prove the defense). This would mean to be safe all portions of any activities that could be considered to be “promotion” or facilitation” would have to be “targeted” take place only in counties where prostitution is legal. I would be very careful about setting up a website and ads to make sure and comply with the language of that defense and I would recommend that you get legal counsel to do so, because God knows how prosecutors might construe “where the promotion or facilitation was targeted.” At a minimum, the ads and websites should be clear that the activity will only take place in the counties where it is legal. But it all depends on your situation. Get a lawyer. Get advise. Here is the actual text of the law setting out the defense, and here is a link to the full text of FOSTA: https://www.congress.gov/bill/115th-congress/house-bill/1865/text

“(e) Affirmative Defense.—It shall be an affirmative defense to a charge of violating subsection (a), or subsection (b)(1) where the defendant proves, by a preponderance of the evidence, that the promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or facilitation was targeted.”

You are quoting only one portion of the law – 18 U.S. Code §2421A(a), which is the section that sets out the general prohibition. §2421A(b) sets out the aggravated offense. The exception for where it is legal is an affirmative defense and is set forth in § 2421A (e) of the law as follows:

“(e) Affirmative Defense.—It shall be an affirmative defense to a charge of violating subsection (a), or subsection (b)(1) where the defendant proves, by a preponderance of the evidence, that the promotion or facilitation of prostitution is legal in the jurisdiction where the promotion or facilitation was targeted.”

(Please note: I still think the law is unconstitutional as hell.)

Go to this web page to see the full, actual text of the law: https://www.congress.gov/bill/115th-congress/house-bill/1865/text (always best to do, rather than relying on secondary sources telling you what it says – don’t even believe me – go read it yourself; that way you tell other people “I’ve read it myself – this is what is says.”)

“it criminalizes, inter alia, ‘operat[ing] an interactive computer service with the intent to promote or facilitate the prostitution of another person’ even in jurisdictions in which prostitution is legal.”

Doesn’t sound like it includes an exception for jurisdictions where it’s legal…

The law contains an exception for advertising of prostitution in jurisdictions where it is legal.