WASHINGTON D.C. — Next week, the House is scheduled to vote on the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which was reported by the Judiciary Committee on Wednesday. The Rules Committee has allowed an amendment that would merge into FOSTA a radically different Senate bill, the Stop Enabling Sex Traffickers Act (SESTA) — which prosecutors say would not aid them in bringing trafficking websites to justice, but which would upset a balance carefully struck by Congress in 1996 to ensure that the fear of liability does not discourage responsible websites from assisting in the fight against trafficking.
Today, TechFreedom, along with 5 other policy organizations, called on lawmakers not to combine the two bills, and instead commit to ensuring that both bills receive the careful consideration needed to ensure that victims are not inadvertently harmed. The letter states:
We do not believe SESTA’s language is workable. We would be happy to help lawmakers parse the differences between the two bills and explore ways to address concerns about FOSTA. But any attempt to simply merge the two bills on the House floor would be an abdication of lawmakers’ responsibility to the victims of sex trafficking. Lawmakers owe it to them to take the time to carefully consider what they are doing. That cannot be done on the House floor, or in conference, or without the expertise of both Judiciary Committees.
“The best of intentions won’t stop SESTA from harming those it aims to protect,” said TechFreedom President Berin Szóka. “The House Judiciary Committee’s report on FOSTA confirmed what prosecutors have said: SESTA won’t help prosecutors because it’s generally too difficult to prove that websites knew the age of those being trafficked. Worse than being useless, SESTA’s knowledge standard will do real harm: if responsible operators fear criminal prosecution under SESTA for gaining knowledge of trafficking on their sites, they will inevitably do less monitoring, content moderation — and they’ll be less able to assist law enforcement. This ‘Moderator’s Dilemma’ is precisely why Congress enacted Section 230 back in 1996. SESTA’s sponsors implicitly acknowledge the problem by explicitly preserving part of the Section 230 immunity, but the part they preserve, Section 230(c)(2)(a), only protects content removal — not monitoring. Thus, under SESTA, monitoring content could make websites more likely to be prosecuted or sued. That’s why SESTA will backfire.”
“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,“ continued Szóka. 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.”
“SESTA’s Senate sponsors insisted Congress had to act quickly to amend Section 230, because the First Circuit said so, but now the trial judge in that very case is about rule on that very question: whether Section 230 actually protects Backpage.com,” explained Szóka. “Not waiting to see what that judge says makes even less sense than not allowing the criminal law experts in the Judiciary Committees to examine SESTA for themselves.”
“SESTA and FOSTA are simply incompatible,” concluded Szóka. “The House Judiciary Committee has carefully considered the advice of prosecutors and drafted a bill, FOSTA, that will actually enable prosecutions of the websites that deserve it: the ones that intentionally promote or facilitate the exploitation of minors — without exacerbating the Moderator’s Dilemma. The House could vote on that bill immediately, but shouldn’t attempt to merge in SESTA’s half-baked provisions. Sex trafficking victims deserve better than a rushed mashup of two incompatible policy approaches.”
- Our letter to Reps. Goodlatte and Wagner on the FOSTA markup
- Our primer on anti-sex trafficking bills
- Our statement on SESTA
- Tech Policy Podcast #189: Fighting Online Sex Trafficking
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.