Looking forward to a future when federal agents monitor Tinder? We won't be far off if some folks in Congress get their way.
Under a proposal from Rep. Bob Goodlatte (R–Va.), anyone posting or hosting digital content that leads to an act of prostitution could face serious federal prison time as well as civil penalties. This is obviously bad news for sex workers, but it would also leave digital platforms—including dating apps, social media, and classifieds sites such as Craigslist—open to serious legal liability for the things users post.
In effect, it would give government agents more incentive and authority to monitor sex-related apps, ads, forums, and sites of all sorts. And it would give digital platforms a huge incentive to track and regulate user speech more closely.
Goodlatte's measure was offered as an amendment to another House bill—the "Allow States and Victims to Fight Online Sex Trafficking Act" (FOSTA)—this one from Missouri Republican Rep. Ann Wagner. The House Judiciary Committee will consider both bills on Tuesday.
Wagner's legislation (H.R. 1865) would open digital platforms to criminal and civil liability not just for future sex crimes that result from user posts or interactions but also for past harms brokered by the platforms in some way. So platforms that followed previous federal rules (which encouraged less content moderation in order to avoid liability) would now be especially vulnerable to charges and lawsuits.
The bill currently has 171 co-sponsors, including ample numbers of both Republicans and Democrats.
Specifically, Wagner's bill would amend Section 230 of the federal Communications Decency Act, which says that websites and other online platforms should not be treated as the creators of user-posted content. What this means in effect is that these third-party platforms can't be sued or prosecuted for users' and commenters' illegal speech (or illegal actions resulting from speech)—with some major exceptions. Digital platforms do not get a pass for content they actually create "in whole or part," for instance.
As it stands, states cannot generally prosecute web services and citizens cannot sue them when user-generated content conflicts with state criminal law. Rep. Wagner's bill—like the similar and more-hyped "Stop Enabling Sex Traffickers Act" (SESTA) in the Senate—would end this state and civil immunity for digital platforms in cases of "sex trafficking" or "sexual exploitation of children." But while that may sound like a small concession, it actually opens up a huge range of activity for liability. At the federal level, the above offenses encompass everything from the truly horrific and unconscionable (like sex trafficking by force) to things like sexting between teenagers. And at the state level, definitions can be even more varied and blurry.
Wagner's bill doesn't just stop at carving out a new Section 230 exception. It also creates a new crime, "benefiting from participation in a venture engaged in sex trafficking," and makes it easy to hold all sorts of web platforms and publishers in violation.
Any "provider of an interactive computer service" who hosts user-posted information "with reckless disregard that the information provided…is in furtherance of [sex trafficking] or an attempt to commit such an offense" could face a fine and up to 20 years in prison, the bill states. And nothing "shall be construed to require the Federal Government in a prosecution, or a plaintiff in a civil action, to prove any intent on the part of the information content provider."
So in cases like, say, Hope Zeferjohn, the teen girl convicted of sex trafficking for talking to a younger teen on Facebook about prostitution, Facebook could be facing a federal charge for participating in a sex trafficking venture.
Goodlatte's proposal, meanwhile, would work by amending the Mann Act, a century-old prohibition on transporting someone across state lines for prostitution. The new section would declare that "whoever uses or operates a facility or means of interstate or foreign commerce or attempts to do so with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both." Anyone that "promotes or facilitates the prostitution of 5 or more persons" or "acts in reckless disregard of the fact that such conduct contributed to sex trafficking" could face a fine and up to 25 years of imprisonment.
Note that no actual prostitution needs to take place. An attempt—i.e., an online ad or solicitation, or what some official sees as one—is enough.
Like SESTA in the Senate—which passed out of committee but has since stalled—this new package of proposals is presented as a way to combat sexual exploitation and human trafficking. But all it would really do is drive sex ads further underground, making it both harder to rescue victims of sexual abuse and harder for willing adult sex workers to conduct business safely, while simultaneously enabling unscrupulous attacks on web platforms, putting an insane chill on all internet speech, and opening the way for even more government prying into everyone's digital lives.
* SESTA's companion bill in the House is H.R. 1865. This post has been updated to reflect that.