Lawmakers revised the controversial bill to criminalize online prostitution and added some other protections for tech companies.
A controversial bill originally targeting online sex traffickers got the House Judiciary Committee’s stamp of approval on Tuesday after lawmakers expanded the legislation to criminalize all prostitution activities on the internet.
As it moves along to a House vote, the Allow States and Victims to Fight Online Sex Trafficking Act threw a wrench into a months-long debate on how to curb online trafficking while protecting tech companies from frivolous lawsuits. The amended version of FOSTA won over some of the bill’s original opponents, but it lost the support of others who claim the revised bill lacks its original teeth.
As the House counterpart to the Senate’s Stop Enabling Sex Traffickers Act, the bill would amend Section 230 of the Communications Decency Act of 1996, a piece of legislation that prevents websites from being held legally liable for content generated by users. As it stands, Section 230 immunity doesn’t apply in federal criminal cases, but the bill would eliminate immunity in state criminal lawsuits as well.
In its original version, FOSTA allowed groups outside the Justice Department to go after any website that facilitates sex trafficking with “knowing conduct,” a standard many tech groups said was too vague. The amended bill instead creates a new federal crime for promoting or facilitating online prostitution, and targets websites that do so.
“Advertisements rarely if ever say the person advertised is a victim of sex trafficking,” said House Judiciary Chairman Bob Goodlatte, R-Va., who proposed the amendment. “A more effective approach with these websites is to charge them with the facilitation and promotion of prostitution. The connection between prostitution and human trafficking is undeniable.”
The revised bill would only criminalize websites with “intent” to facilitate or promote online prostitution, a narrower standard than “knowing conduct.” It would also raise the requirements for liability and maintains websites’ Section 230 protection in civil suits.
The added protection for tech companies led many of the legislation’s initial opponents to warm up to the bill, including Sen. Ron Wyden, D-Ore. Though he frequently spoke out against FOSTA and SESTA in the past, Wyden called the amended version “a smarter, more effective approach” to punish sex traffickers “without undermining the foundations of the internet.”
Engine, an industry group that represents tech startups, also threw its support behind the revised FOSTA, though it still opposes the Senate counterpart. Whereas the old bill would require companies to comply with each state’s individual laws, the new version would create a single federal standard for online prostitution for tech companies to follow, said Rachel Wolbers, policy director for Engine.
“You need to know what laws you’re supposed to be living under when you create an internet company that has a presence in all 50 states,” Wolbers told Nextgov. “The original FOSTA and the original SESTA would’ve opened up 51 different legal regimes, and this bill creates just one.”
Despite winning over some initial opponents, the amended bill has drawn sharp criticism from human rights advocates who say the revisions severely weakened the bill.
A group of 30 advocacy groups and sex crime victims sent a letter to the committee on Monday urging lawmakers not to approve the new legislation, taking specific issue with the reduced protections in civil lawsuits.
“Although the amended version may be well intended, by ignoring the possibility of a private right of action, it fails,” they wrote. “Not a single trafficking survivor or victim’s group that we have been working on this legislation supports this amended version.”
Sen. Rob Portman, R-Ohio, the original sponsor of SESTA, also spoke out against the amended legislation, highlighting advocates’ concerns that the bill “is actually worse for victims than the current law.”
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