March 14, 2018

The legislation alternately known as SESTA and FOSTA has gone through multiple iterations. Depending on who you talk to, the latest version is either a welcome compromise or the "worst of both worlds" for internet companies.

Lawyers may differ in their assessments of Section 230 of the Communications Decency Act (CDA), but one thing is clear: The law has been a powerful shield for internet companies in fending off liability suits. Now, the scope of Section 230 is being redefined by Congress, one of the few times that has happened since 1996.

The House of Representatives at the end of February passed its version of a bill known as FOSTA—or Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865)—and the Senate is on track to approve it later this month. Here’s an overview of how the legislation has evolved and what it might mean for litigation in the future.

I thought it was called ‘SESTA’

The bill has gone by two different names, often used interchangeably. SESTA is the name of the legislation introduced in the Senate last August by Sens. Rob Portman, R-Ohio, and Richard Blumenthal, D-Connecticut, and stands for the Stop Enabling Sex Traffickers Act of 2017 (S. 1693). That bill was amended and approved by the Senate Commerce, Science, and Transportation Committee in January.

FOSTA is the name of the companion bill in the House. Both the Senate and House versions underwent significant changes in the legislative process, and the bill that the Senate is now prepared to vote on is essentially a combination of the two. Critics like the Electronic Frontier Foundation have referred to it as a “Frankenstein combination” of the two.

What would the legislation do?

The latest version of FOSTA would do several key things. Perhaps most significantly, the bill amends Section 230 to say that nothing in that section limits any civil claim or criminal action under federal anti-trafficking law, or criminal prosecution under state law (as long as the state law mirrors the federal law). Then, it goes on to expand the scope of what constitutes a crime under federal law and to expressly permit civil actions by state attorneys general.

The bill creates new criminal and civil causes of action for operating a website “with the intent to promote or facilitate the prostitution of another person.” And it amends a separate provision of federal anti-trafficking law to say that “knowingly assisting, supporting, or facilitating” sex trafficking also constitutes a violation.


Some say the concerns are overblown

Litigators on the other side of this issue see the criticism as alarmist. “I can’t imagine taking that [position] of, ‘We’re just not going to moderate, because then we’re going to have some deniability,’” said Takisha Richardson, a former state’s attorney in Palm Beach County, Florida, who oversaw trafficking cases. Burying your head in the sand is not an option, said Richardson, who recently joined the firm Cohen Milstein Sellers & Toll; authorities will contact companies, if they find on their websites what appear to be ads for trafficked or underage persons.

To read the full analysis, click here.