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House Passes 'Anti Sex-Trafficking' Bill Opposed by Both DOJ and Trafficking Survivors

The bill makes "promoting prostitution" a federal crime, holds websites legally liable for user-posted content, and lets states retroactively prosecute offenders.

With bipartisan enthusiasm, the U.S. House of Representatives has just passed a bill that would endanger sex workers, make life even worse for human trafficking survivors, put both free speech and social media in serious jeopardy, and drastically expand federal prosecutorial power.

The bill, H.R. 1865, is euphemistically named the "Allow States and Victims to Fight Online Sex Trafficking Act" (FOSTA), despite the fact that there's nothing stopping state authorities from punishing sex traffickers and their allies at present and despite the fact that trafficking victims can already sue abusers in civil court. FOSTA's actual targets are adults consensually engaging in prostitution as well as web platforms that allow user-generated content.

One of many similarly misleading bills that have gained traction in recent years, FOSTA amends Section 230 of the federal Communications Decency Act to hold online publishers, apps, and services legally liable for the actions of people who post there or connect through them. What this means in practice is that social media sites such as Snapchat and Facebook, classified ad sites such as Craigslist and Backpage, chat apps, search engines, and many other communication tools could be both criminally charged and sued in civil court—by individuals or by states—anytime anyone uses them to meet someone with whom they would eventually engage in commercial sex.

As Rep. Sheila Jackson Lee (D-Texas) explained on the House floor yesterday,

H.R. 1865 creates the new offense of intentional promotion or facilitation of prostitution while using or operating a facility or means of interstate or foreign commerce, such as the internet. A general violation of this offense will be punishable by a sentence of upwards of 10 years.

The bill, sponsored by Rep. Ann Wagner (R-Missouri), has had bipartisan support in the House from the get-go, despite objections from a wide range of stakeholders, from victims' advocacy organizations to the U.S. Department of Justice, which has already declared the bill "unconstitutional."

On Tuesday, it passed the House with 388 votes in its favor.

Ivanka Trump and a host of liberal Hollywood celebs, government-funded nonprofits, and former #Pizzagate conspiracy theorists cheered.

But the response from sex workers, sex-trafficking survivors, free speech advocates, human rights activists, tech companies, due process proponents, and many others was much less positive.

The bill "marks an unprecedented push towards Internet censorship, and does nothing to fight sex traffickers," the Electronic Frontier Foundation (EFF) declared yesterday. "Facing huge new liabilities, the law will undoubtedly lead to platforms policing more user speech," going out of business, or failing to launch in the first place.

"The tragedy is that FOSTA isn't needed to prosecute or sue sex traffickers," the EFF continued. "As we've said before, Section 230 simply isn't broken. Right now, there is nothing preventing federal prosecution of an Internet company that knowingly aids in sex trafficking. That includes anyone hosting advertisements for sex trafficking, which is explicitly a federal crime" already thanks to the 2015 "SAVE Act."

Voting against FOSTA were just 14 Republicans and 11 Democrats. Among them were staunch criminal justice reform advocate Rep. Bobby Scott (D-Virginia), pro-Trump Republican Rep. Matt Gaetz (Florida), longtime women's rights and anti-violence advocate Rep. Barbara Lee (D-California), and most of the House Liberty Caucus, including Reps. Justin Amash (R-Michigan), Thomas Massie (R-Kentucky), and Mark Sanford (R-South Carolina).

In a statement, Rep. Scott explained that he voted against the bill because it "establishes an overly-broad federal crime that is not limited to the advertisement of sex trafficking victims, which is already illegal, and punishes conduct which is much less serious than what is ordinarily viewed as 'sex trafficking.'"

"By targeting prostitution broadly, [FOSTA] may also force markets for consensual commercial sexual activities offline, which would increase risks of violent crime against vulnerable populations," said Scott.

The House Liberty Caucus warned that the bill would subject sites like Facebook, Twitter, and Yelp "to substantial liability unless they're able to continuously remove all illegal content—which is effectively impossible to do." FOSTA, in its initial or amended form, "will significantly burden the rights of hosts and users" while increasing "risks of violent crime against vulnerable populations."

It's also all sorts of unconstitutional, the Liberty Caucus notes.

FOSTA "violates the Tenth Amendment by establishing a broad new federal crime for using or operating a website with the intent to promote or facilitate the prostitution of someone else," which is "not limited to the advertisement of sex trafficking victims" (already illegal). Rather, the bill "covers prostitution broadly, which the Constitution does not permit the federal government to regulate through criminal laws."

The caucus adds that on amendment to FOSTA "violates the Constitution by allowing states to use the bill's changes retroactively to prosecute conduct that states could not prosecute at the time it occurred." This goes against Article 1 and the Rule of Law, which forbid "ex post facto laws that retroactively apply criminal liability to actions that occurred before the law is passed."

Rep. Bob Goodlatte, chair of the House Judiciary Committee, spoke against this retroactive facet of the bill on the House floor yesterday. "Though I applaud my colleague's dedication to this issue and fully appreciate the suffering of victims, I have concerns about this amendment which states that the provisions of the bill apply regardless of whether the conduct alleged occurred or is alleged to have occurred before, on, or after such date of enactment," said Goodlatte. "I hope we have an opportunity to fix this problem as we move forward with the bill."

During a private call last week, a source in the House said Goodlatte's office was upset about the situation with FOSTA but wouldn't seriously try to fight it. Another source said on background that Goodlatte's decision not to fight followed an "expletive-laden exchange" between the Judiciary Committee and House leadership in which Republican Reps. Paul Ryan of Wisconsin and Kevin McCarthy of California made it clear that they were going ahead with the bill as written despite Judiciary's concerns.

Photo Credit: screenshot/CSPAN

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  • Fist of Etiquette||

    They all know it. They all know that they've attached a false narrative when applying "trafficking" to prostitution just to ramp up their war on sex workers. What I can't figure out is why. What do these people gain from this? Who is lobbying for it? The criminal justice industrial complex? Or is it just that the Christian Right voter bloc is still worth courting? Maybe soccer moms?

  • Libertymike||

    In PB's parlance, "dotards".

  • $park¥ leftist poser||

    Who is lobbying for it?

    Prison owners?

  • Libertymike||

    A myriad of Massholes.

  • Unicorn Abattoir||

    Seems more like just another effort to go after online speech to me.

  • BestUsedCarSales||

    And I think it's happening at a time when there's a strange convergence of views between certain types of right-wing conservatives and certain left-wing feminist types.

  • Unicorn Abattoir||

    It's as if the laws of physics governing matter and antimatter have been suspended.

  • Zeb||

    The ascendancy of the illiberal left, joining forces with social conservative types makes this possible.

    As for motivations, as with most things, most people don't think about it that much. So if you are the kind of person who is easily swayed by nice sounding things like "stop sex trafficking", you are likel yto support this. But I think that there are more nefarious motivations under it all. There seems to be a strong movement on the far left these days to deny any biological differences between men and women, and enshrine that notion in law as much as possible. One of the most obvious differences between men and women (in general) is sexual behavior and motivation. Prostitution is almost all for men (straight or gay). So we need to either frighten men into changing behavior, or demonize and criminalize them if they don't.
    I think that's at least part of the deeper motivation.

  • Microaggressor||

    So if you are the kind of person who is easily swayed by nice sounding things like "stop sex trafficking", you are likel yto support this.
    Social desirability bias.

  • Elias Fakaname||

    Sex traffic needs more lanes, not less. Maybe a high speed lane for groups of,three or more. I advocate more spending for that.

  • DiegoF||

    Yes. The Christian Right now is far too weak to do any damage on their own, except perhaps in a few locales. They can only hurt us, going forth, as part of larger coalitions involving centrist or prog "social reformers," which unfortunately have always been forthcoming going back to Victorian days.

  • Elias Fakaname||

    Every prof I talk to obsessively believes the Christian tight is in total country of the GOP. They also think Paul Ryan is a far right hardcore conservative.

  • turco||

    they are afraid their opponent would cut an ad saying they opposed a bill that made trafficking illegal. Optics. that's all.

    democracy is truly the worst form of government, except for all the others we already tried

  • Miter Broller||

    They create more criminals to keep the cycle going. I'm told it's quite the lucrative business.

  • Libertarian||

    I, for one, would like to see a term limits bill that was retroactive.

  • EscherEnigma||

    If by "retroactive" you mean "would immediately eject members that would be past the new term-limit", then that's probably a poison-pill to any such term limits.

    But generally speaking a new term limit can prevent current members that would be beyond the term limit from running for re-election, so if that's what you meant then sure.

  • Libertarian||

    Your first sentence is what I meant, albeit tongue in cheek.

  • Hank Phillips||

    What we have is retrogressive prurientanism. Reading Harriet Beecher Stowe and other religious antislavery activists makes it clear the Quadroon Balls were the enemy, not slavery. Northern mercantilists were thrilled to exploit bigots to pass a high tariff, even when it meant a civil war. During the earlier Barbary Pirates war it was Saracens selling White Women that set them foaming. This was still a frenzy whipper-upper in the Cleveland administrations, revived again after the Allies slammed Germany with War Reparations bills in a Treaty of Versailles. That treaty (and the other armistice treaties) all contained drug and human trafficking clauses. To this day the Prohibition Party writes the Republican platform imagining carpetbagger pimps chasing Eliza over the ice floes. The thought of anything that might make anyone smile for even a second is pretext enough for service pistols, billy clubs and bullying.

  • Elias Fakaname||

    Have you ever even hear of paragraphs? Or how to structure your sentences? When I read your writing, I picture some disheveled old guy babbling your entendres to himself as if everyone is listening. Yet no one is listening. Then laughing at your own bad, obscure attempts at humor. That's you. That's how your writing comes off.

  • Brian||

    Nobody wants to take your whores away.

  • Jerryskids||

    Forget sex workers, the idea of holding publishers liable for what authors write is a horrifying crimp in the First Amendment. Do you really think they're going to stop with sex workers when they've got a chance to "loosen up" publishing laws and a champion of their cause in the Oval Office? Ironically, for a law purported to protect against sexual violence, it sure does seem like we're getting fucked by it.

  • Unicorn Abattoir||

    It's consensual when the government does it.

  • Marcus Aurelius||

    One way to crack down on the woodchipper comments...

  • croaker||

    Until we stop with the woodchipper comments and go straight to woodchipper use.

  • Domina Elle||

    No don't forget sex workers. Criminalized Erotic service providers don't have the benefit of equal protection under law being criminalized while publishers have access and funding and are in a much better position to fight. Sex workers need to be decriminalized so they too can be in a better position to fight.

  • Finrod||

    You would think that the legal houses of prostitution in Nevada would be all up in arms about this. If growing your own crops for your own use is "interstate commerce", wouldn't their business be deemed that as well?

  • Brandon Lyon||

    I was wondering the exact same thing. If those brothels have websites wouldn't it put them at odds with this law?

  • Lawn Darts||

    I will personally donate to their legal defense... just on principle.

  • Domina Elle||

    Decriminalization of prostitution is what needs to happen. ESPLERP V GASCON is currently attempting to do this. It's not over yet. The case was recently dismissed by the ninth circuit but ESPLERP isn't giving up. Donating to ESPLERP.org is my suggestion. It's the sex worker led org dedicated to legal challenges. The only sex worker led org challenging the law as a matter of fact and the least funded. ESPLERP would appreciate any financial support they can get! Litigatetoemancipate.com

  • Scarecrow Repair & Chippering||

    I'm waiting for Obama to be indicted for calling CA's AG the prettiest attorney general. What was he doing, pimping her out behind Michelle's back?

  • Marcus Aurelius||

    With those arms?

  • sarcasmic||

    ex post facto

    but i'm not a lawyer

  • sarcasmic||

    tl;dr;

  • DiegoF||

    If Simon Cowell produced a constitutional-law reality show, would he call it X Post Factor?

  • DCsw||

    Paul Ryan... that population problem is really weighing on him.

  • Hank Phillips||

    The Comstock laws passed during Reconstruction (when the Dems had 2 electoral votes in a national election) banned so much as slipping someone a note about birth control, rubbers, abortion or even a "disloyal" thought. These coincided with major Panics, stock crashes and depressions. With the Dems bent on reviving Soviet communism and banning electric power, God's Own Prohibitionists can waltz away with election victories despite the falloff in religious fanaticism since the Saudi hijacker attacks. To this day the Prohibition and Republican parties trot out a Coathanger Abortion amendment every election to undo the Roe v. Wade decision copied from the Libertarian Platform.

  • Joirep||

    The DOJ only opposes this bill because it will hinder their ability to set up sting operations. I would say 90% of all sex ads online are UC stings. Once posting or responding to sex ads becomes a serious federal crime no one their right mind will bother doing either of those two things. This effectively will kill all online undercover sting ops against johns and hookers. The DOJ doesnt want that.

  • Domina Elle||

    Erotic service providers and their clients not 'johns and hookers'.

    Where have you been? You really think this will keep cops from setting up stings? That's rich.

    The DEA sells drugs to catch drug dealers.
    The BATF sells guns to catch gun runners.

    Law enforcement is above the law. Always.

  • jerryg1018||

    "The bill, H.R. 1865, is euphemistically named the "Allow States and Victims to Fight Online Sex Trafficking Act"

    Another unconstitutional piece of legislation which will promptly be challenged in the courts. Too much time and money are being wasted fighting unconstitutional legislation through the courts. Another problem is that too often unconstitutional legislation is upheld in the lower federal courts. And because the Supreme Court only grants petitions for certiorari for 80-100 cases in a year not all unconstitutional legislation is granted review.
    What I suggest is a constitutional amendment that requires Congress to submit any and all legislation to a panel of constitutional legal scholars for review before being voted on. The panel would identify any constitutional problems and give Congress a chance to fix them.

  • Nardz||

    I get where you're coming from and agree with the spirit of your idea, but the fact that someone such as Barack Obama would be among the most qualified people to be on such a panel renders it, to my mind, completely invalid.
    Now, if a language algorithm could be developed to analyze any law or regulation and assess its compatability with the US Constitution, as written, then we could start implementing such an idea as preemptive review.

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