Congress is about to take a large step towards ending the horrible practice of sex traffickers using the internet to advertise children who’ve been forced into prostitution.
We all support legislation that helps prosecute sex traffickers. That’s why we worked with victims’ groups and law enforcement to draft FOSTA, the Allow States to Fight Online Sex Trafficking Act.
Unfortunately, that legislation is about to be hijacked by trial lawyers pushing language that won’t help sex trafficking victims, but would penalize websites that have unknowingly hosted illegal user-generated content.
In the House, the Judiciary Committee worked with law enforcement, victims’ groups, and the tech community to create FOSTA, a carefully crafted solution to end sex trafficking and prosecute those who perpetrate these horrific crimes. On the other side, the Senate Commerce Committee passed SESTA, (S. 1693, the Stop Enabling Sex Trafficking Act), an ambiguous and overly-broad bill that creates liability for websites that may unknowingly host illegal user-generated content.
The House Rules Committee is currently considering an amendment that would mash together these two very different bills with a floor vote planned on Tuesday, February 27.
Currently, prosecutors can go after a website or social media platform for sex trafficking if they can show the company knowingly allowed users to advertise or recruit someone to engage in a paid sex act and knew that the person was either a minor or forced into prostitution. Prosecutors say that proving beyond a reasonable doubt that a bad actor knew about the age of a victim in an advertisement is exceedingly difficult, so the statute often goes unused.
Under FOSTA, prosecutors would just need to prove that websites are intentionally promoting prostitution. The Senate’s SESTA language would also allow civil plaintiffs to sue sites that “knowingly facilitate” trafficking. Unfortunately, it’s not clear what this means in practice, potentially creating liability for websites that aren’t even aware that users are engaged in sex trafficking on their sites.
Many of the sites that consumers use on a daily basis will be hard pressed to operate in a post-SESTA world. Websites hosting user-generated content will have little choice but to limit how users post and share content for fear of unforeseen litigation.
Big tech companies, under pressure by lawmakers on issues from Russian bots to net neutrality, have apparently decided they can afford to back this legislation because they have armies of lawyers who can combat the deluge of frivolous lawsuits this bill would unleash. Small businesses — like the startups my organization represents — don’t have that luxury.
SESTA’s ambiguous language will create a new path for trial lawyers to bring expensive lawsuits against websites and social media platforms for quick settlements, fishing expeditions, and more. It will also discourage tech companies from flagging suspected illegal activity to law enforcement because it could open them up to civil litigation.
We all want to stop sex trafficking but the last-minute push to attach SESTA’s broad and ambiguous language to the carefully-crafted FOSTA bill isn’t going to help anyone but trial lawyers. The internet is too important for Congress to rush through legislation without fully weighing all of the consequences, especially on small businesses.
The House Judiciary Committee hasn’t even considered the SESTA language which House leaders are now expecting members to vote on later this week. It’s time to slow down and understand the real-world consequences this legislation could have. This issue is too serious and complex to be decided at the last minute.
Evan Engstrom is executive director of Engine, a policy, advocacy and research organization that supports startups as an engine for economic growth.