The bill opens up who can sue websites for their users’ content.
A controversial bill aimed at curbing online sex trafficking is making its way to the president’s desk following a months-long battle between technologists and human rights advocates over websites’ role in policing posts by their users.
The Senate passed the Allow States and Victims to Fight Online Sex Trafficking Act on Wednesday in a 97 to 2 vote. The bill, which the House approved Feb. 27, would expand prosecutors’ arsenal of legal tools in suits against web platforms that “knowingly” facilitate sex trafficking or prostitution.
The legislation amends Section 230 of the Communications Decency Act of 1996, a statute 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 FOSTA would eliminate immunity in state criminal and civil lawsuits, allowing groups other than the Justice Department to go after platforms complicit in sex trafficking.
“Today’s vote is a victory for trafficking survivors and a victory for our efforts to help stop the selling of women and children online,” said Sen. Rob Portman, R-Ohio, in a statement. Portman was one of the main drivers behind the Stop Enabling Sex Traffickers Act, the Senate counterpart to FOSTA.
Supporters see FOSTA as a much-needed weapon to fight forums for human traffickers that would otherwise hide behind Section 230, but the tech community argues the bill could stifle innovation and open the door for frivolous lawsuits against online platforms.
Currently, many internet services police their sites for harmful content, but sex trafficking ads and other posts often use coded language that can slip through filters and moderation algorithms. Depending on how broadly FOSTA is applied, such mistakes could be construed as facilitating sex trafficking, so some companies may be incentivized to moderate sites less to shield themselves from liability, argues Eric Goldman, director of the High Tech Law Institute at Santa Clara University.
“If you try and fail you’ll be held liable for everything you miss, or you cannot try at all and then you won’t be liable—that’s not a net win for society,” Goldman told Nextgov.
While the tech community warmed up to the bill after the House added further protections for websites, the support quickly waned after lawmakers revised the final text to more closely mirror SESTA, which takes a stiffer position against online platforms.
“We are disappointed that the Senate has now joined the House in adopting legislation that won’t make it easier for prosecutors to stop sex traffickers but may hurt small startups,” said Evan Engstrom, executive director of Engine, an advocacy group for tech startups, in a statement. “We fully support the underlying goal of the bill—reducing online sex trafficking—but … honest platforms should not have to worry about facing meritless lawsuits if they take steps to address problematic content on their sites.”
The staunchest opposition to the bill came from Sen. Ron Wyden, D-Ore., who stalled the Senate counterpart after placing a hold on the bill in November. He and Sen. Rand Paul, R-Ky., were the only two lawmakers to vote against FOSTA.
“In the absence of Section 230, the internet as we know it would shrivel," Wyden said Wednesday on the Senate floor. He proposed an amendment that would set up additional funds for the Justice Department to prosecute sex traffickers, but it was voted down.
The White House applauded the bill’s passage and it’s highly likely the president will sign FOSTA into law.