The Future of FOSTA May Be Frivolous Lawsuits
Passed in 2018, the Allow States and Victims to Fight Online Sex Trafficking Act—or FOSTA, for short—made it a federal crime to host web content that "promotes" or "facilitates" prostitution.
In the nearly two years since FOSTA became law, neither federal nor state prosecutors have used it. But that doesn't mean it's simply gathering dust. Web companies are now experiencing the first wave of civil lawsuits made possible by the law.
Companies anticipated that FOSTA would be used more broadly than its proponents claimed. After Congress passed the legislation with bipartisan support, the classified-ad platform Craigslist quickly axed its entire personals section, including categories on the site that were essentially used the same way as dating apps.
It was not the only site to begin limiting legal content related to relationships and sex. And even though it acted quickly, Craigslist is now the target of one of the first FOSTA-based civil lawsuit efforts, with plaintiffs in California and Washington state filing suit against the company.
Both cases against Craigslist rely on a "radical theory of liability," wrote University of Notre Dame Law Professor Alex Yelderman in a January blog post. The suits allege that Craigslist's "erotic services section" was known across the U.S. "as a place to easily locate victims"; that Craigslist knew bad actors had used their site; and that this knowledge "amounted to a venture with sex traffickers to efficiently market victims."
The suits do not claim Craigslist had specific knowledge of the plaintiff (Jane Doe), the person who harmed her, or which ads were used for sex trafficking rather than consensual erotic encounters. The suit simply claims that Craigslist had previously been put "on notice of the human sex trafficking" committed through the site, and was thus responsible for any trafficking that happened.
Classified-ad sites—like social media platforms, blog publishers, email newsletter providers, dating apps, and publications with online comments sections—are conduits for third-party, user-generated content. Prior to FOSTA's passage, judges routinely dismissed suits against Craigslist, Backpage, Facebook, and other web hosts accused of sex trafficking, since a federal law on the books bars civil cases and state charges merely for being conduits of third-party speech. But FOSTA changed the rules for speech that concerns sex, opening the floodgates to individual lawsuits against web hosts such as Craigslist. And because the definition of "sex trafficking" can be so blurry and the crime so hard to prove, the broad language in the law leaves a lot of room for lawyers to treat FOSTA like a get-rich-quick-off-Big-Tech scheme.
Another case in federal court this year targets Mailchimp, an email automation and marketing service. Anyone can sign up for an account and use Mailchimp tools to create and send mass emails. One company that did so was YesBackpage, an adult-advertising platform launched after U.S. authorities shut down Backpage, a website that allowed adult services ads.
Plaintiff lawyers in the Mailchimp case say that by letting YesBackpage use its software, Mailchimp was complicit in, and thus financially liable for, any crimes brokered through YesBackpage's user-generated content. "Mailchimp's marketing relationship with YesBackpage makes it responsible for its natural consequences—the sex trafficking of Jane Doe," the suit states.
"This view of 'natural consequences' is breathtaking," Yelderman wrote. "When sex trafficking is somehow construed as the 'natural consequence' of virtually any action, virtually no person or entity is safe from the threat of liability."
Techdirt editor Mike Masnick has also pointed out that "the claims against Mailchimp are absolutely the kinds of things we all warned would happen when FOSTA was being debated."
But FOSTA supporters insisted innocent companies would have nothing to worry about.
In 2018, when the first lawsuit challenging FOSTA's constitutionality arrived in federal court, Justice Department lawyers argued that it didn't apply to people like masseuse Eric Koszyk, who advertised on Craigslist, and sex worker activist Alex Andrews. The U.S. District Court for the District of Columbia agreed and tossed the case, writing that FOSTA was "plainly calculated to ensnare only specific unlawful acts with respect to a particular individual, not the broad subject-matter of prostitution."
The plaintiffs appealed, and in January the D.C. Circuit Court of Appeals granted Koszyk and Andrews standing to continue the challenge. Hopefully, they can fight their way to a decision that will undermine FOSTA before FOSTA further undermines free speech on the web.