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FOSTA Passes Senate, Making Prostitution Ads a Federal Crime Against Objections from DOJ and Trafficking Victims

The measure will "make it harder, not easier, to root out and prosecute sex traffickers," said Sen. Ron Wyden, one of only two senators to vote no on FOSTA.

screenshot/CSPANscreenshot/CSPANThe U.S. Senate just passed one of the worst bills in recent memory, the so-called "Allow States and Victims to Fight Online Sex Trafficking Act" (FOSTA) that cleared the House of Representatives in late February.

This is the measure that would make online prostitution ads a federal crime and decimate Section 230, the federal provision shielding web publishers and platforms from certain legal liabilities for the things that users post. It's largely portrayed as a response to Backpage, but its reach goes far far beyond that.

"In the absence of Section 230, the internet as we know it would shrivel," warned Sen. Ron Wyden (D-Oregon) from the Senate floor Wednesday. "Civic organizations protecting their right to free speech could be [ruined] by their more powerful political opponents" and "there would be an enormous chilling effect on speech in America." That's why big companies like Facebook like efforts like this to weaken it, Wyden added—"because it would pull up the ladder in the tech world" so new companies couldn't afford to get in.

Wyden stressed that he's been highly proactive on measures that could actually helps victims of sexual exploitation. But FOSTA "is not going to prevent sex trafficking [and] it's not going to stop young people from becoming victims," he noted. In fact, "the legislation before the Senate is going to make it harder, not easier, to root out and prosecute sex traffickers."

This isn't just Wyden's opinion. The Department of Justice has not only called FOSTA unconstitutional; it says the legislation will "create additional elements that prosecutors must prove at trial," thereby making it harder to get guilty parties convicted.

"You're heading in the wrong direction if you [pass a bill] that would raise the burden of proof in cases against sex traffickers," Wyden chastised his colleagues. He was one of two senators today—along with Rand Paul (R-Kentucky)—to vote against the measure.

Another downside: Under FOSTA, any attempts by a website or app to filter out bad content could lead to more legal liability. The only way for companies to stay safe will be to completely give up on content moderation and trying to stop illegal ads from getting through. An amendment to FOSTA, offered by Sen. Wyden, would have closed this loophole, but it was shot down by a large majority.

And we haven't even touched on the damage FOSTA will do for sex workers, who could lose their ability to find and screen clients electronically, forcing them back onto the streets or into other situations where they'll be more vulnerable to violence and exploitation. They could also lose the ability to warn each other about dangerous customers on sex-work message boards.

As Alana Massey noted recently at Allure, "these bills target websites that are widely and inaccurately believed to be hubs of trafficking activity when it is precisely those websites that enable people in the sex trades to do their work safely and independently, at the same time as they make it easier for authorities to find and investigate possible trafficking cases."

In a lengthy Senate floor speech on Monday, bill sponsor Sen. Rob Portman (R-Ohio) told a series of whoppers about U.S. sex trafficking, starting with an assertion that "there is a federal law that now permits trafficking online."

There isn't. And when it comes to federal law enforcement, Section 230 doesn't even apply. Without any changes to existing law, those who commit federal crimes such as sex trafficking of children, sex trafficking via force/fraud/coercion, knowingly advertising a victim of trafficking, paying for sex with someone under age 18, forced labor, debt bondage, and all sorts of related activities are fully prosecutable, and Section 230 has nothing to say about it.

In defense of his bill, Portman also cited an increase in the number of "sex trafficking cases" reported to a national hotline run by Polaris Project—an entity that counts any call, text, or email as a "case" of sex trafficking (even though the vast majority are simply requests for information or unsubstantiated "tips") and that has spent the past decade lobbying for state laws requiring all sorts of businesses to post the number.

But the worst part of Portman's defense was this attempt at an argument:

Unbelievably, for years, these websites have gotten away with [sex trafficking] because when parents...file a lawsuit for damages to try to stop what is going on, they are told: We are immune. When the prosecutors in these local communities step up and ask: "How could this illegal activity be going on? This is illegal to do on the street corners, certainly it is illegal to do online," the judges say: We are immune.

And yet, Portman isn't introducing legislation to hold the street corners—or the government entities who own them—accountable as sex traffickers when prostitution takes place there.

The bright side is that there's a strong chance this bill will run into trouble in the courts. "Unlike the SAVE Act, which prohibits the knowing advertisement of trafficked sexual services, this statute implicates constitutionally protected speech," points out Notre Dame law instructor Alex F. Levy. (Read Levy's guest post at Eric Goldman's blog for all the legal nitty gritty on why.)

Photo Credit: screenshot/CSPAN

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  • Citizen X - #6||

    Rob Portman embroiled in a prostitution scandal in 3... 2...

  • croaker||

    I'd rather he be caught sucking off an underage boy.

  • Crusty Juggler||

    Uh...

  • BestUsedCarSales||

    Yeah, I agree. We need more details croaker.

  • Ama-Gi Anarchist||

    I'd rather he be caught sucking off an underage boy

    I like the cut of your jib, sir!

  • Hugh Akston||

    Once again we see that the only thing worse than partisanship is bipartisanship.

  • colorblindkid||

    Don't worry, when it turns out this has bad consequences, the Democrats will claim they were against it from the start and it was all backwards Republicans who led the campaign, just like they do with the War on Drugs. And the press will go right along with it.

    The Patriot Act passed the Senate 98-1 and Obama basically put it on steroids, yet now Democrats will get away with saying it's bad and the press won't even push back.

    Just watch what happens with gun control. If some meaningful attempt to crack down on guns and make it harder for people to get guns, it will wind up sending a shit ton more black men in prison, since they commit 60% of the murders largely with illegally obtained handguns, and minorities will wind up being more likely to be denied gun permits. When the gun trade goes to the black market and gives gangs and border smugglers more power and causes more violence, largely within the black community, Democrats will say gun control was all an evil racist attempt to oppress black people. And they will get away with it. And then move on to their next brilliant plan to solve some issue that does not need solving, waiting ten years before it backfires, and then blaming it on Republicans.

  • MSimon||

    Worst is buy partisanship.

  • Microaggressor||

    First, they came for the hookers...
    Social desirability bias requires politicians to be self-serving scumbags 100% of the time, every time.

  • John C. Randolph||

    So, all the hooker ads will be moved foreign web sites? What's that going to take, about an hour?

    -jcr

  • Citizen X - #6||

    Did FOSTA outlaw the Links, too?

  • Crusty Juggler||

    Obvi

  • Chipper Morning Baculum||

    Robby is back.

  • BestUsedCarSales||

    Now that Ed is gone there's no reason to live anymore anyway.

  • Chipper Morning Baculum||

    I am sure once Milton and Friedrich get done licking The Coif into place, Robby will get right on the PM links.

  • BestUsedCarSales||

    Well, I hope they hurry up. Fist just wandered into my work place and he's not looking good.

  • Crusty Juggler||

    nitty gritty

    My word.

  • Crusty Juggler||

    "there is a federal law that now permits trafficking online."

    This is the future Libertarians want.

  • Anomalous||

    A bill so bad that even Jeff Sessions is against it.

  • Chipper Morning Baculum||

    And, judging by the picture, so is Marty Funkhouser.

  • BestUsedCarSales||

    Don't bring Super Dave into this madness.

  • Dan S.||

    Any chance it could be vetoed?

  • MarkLastname||

    "Trump supports sex trafficking OMG!!!!!" Would be the headlined, so my guess is no.

  • Rigelsen||

    "Civic organizations protecting their right to free speech could be [ruined] by their more powerful political opponents" and "there would be an enormous chilling effect on speech in America."

    What? Has Wyden been paying attention? Is he unaware of the wholesale "deplatforming" that's been going on, taking both firebrands and even thoughtful non-leftist commenters off YouTube and the social networks?

    This isn't just Wyden's opinion. The Department of Justice has not only called FOSTA unconstitutional; it says the legislation will "create additional elements that prosecutors must prove at trial," thereby making it harder to get guilty parties convicted.

    This seems a feature not a bug.

    Another downside: Under FOSTA, any attempts by a website or app to filter out bad content could lead to more legal liability. The only way for companies to stay safe will be to completely give up on content moderation and trying to stop illegal ads from getting through.

    Certainly will be disruptive, but there is also a feature hidden in the bed of bugs. Guess I'll have to comb through the bill or wait for someone to do a more detailed legal analysis.

  • Jerryskids||

    If you were a Congressman, would you want it on your record that you voted in favor of selling little children into sex slavery?

    And that's why these people are the scum of the Earth - a good portion of the people who voted for this piece of shit knew damn well it was a piece of shit but they lack the guts or the spine to stand up and say it's a piece of shit for fear that some future opponent is going to claim they voted in favor of selling little children into sex slavery. They know damn well they just voted against the First Amendment but they'll cheerfully sell out the Constitution if they think standing up for the Constitution will cost them a few votes.

  • sharmota4zeb||

    Yeah, that's how the game is played. It is a shame.

  • UnrepentantCurmudgeon||

    No politician wants to have to explain anything in more than 20 words.

  • Brandybuck||

    Q: What's the difference between a prostitute and Rob Portman?

    A: There are things a prostitute won't do for money.

    Also, woodchippers.

  • loveconstitution1789||

    Banning printed words is blatantly unconstitutional.

  • JWatts||

    "Banning printed words is blatantly unconstitutional."

    No it's not. Geez, think about it for a minute. You can't legally put an ad out to hire an assassin. In general, you can't advertise for illegal services.

    This would potentially fall under that category, though obviously prostitution isn't illegal everywhere. So, it might well be ruled unconstitutional for blocking ads in areas where prostitution is legal.

  • commentguy||

    I think technically an advert for an assassin wold only be successfully prosecuted if they could prove intent to procure an assassination. So if you did it as a joke because you were fed up with mother-in-law, that would be a valid defense. But I am not a lawyer, and the law is often applied in illogical ways, so don't try this at home!

  • JWatts||

    "The U.S. Senate just passed one of the worst bills in recent memory, the so-called "Allow States and Victims to Fight Online Sex Trafficking Act" (FOSTA) that cleared the House of Representatives in late February."

    I'm sorry but this doesn't break my top 10 for the last decade. The recent budget deal was far worse.

  • Incredulous||

    No, this has long lasting negative implications for freedom of speech and other basic freedoms. This is absolutely horrible. Intended and unintended consequences are a disaster for basic human rights.

  • Wildbill2u||

    Haven't checked on the wording of sex ads, but I assume they aren't so blatant in their offers that the meaning is explicit. Failing a direct offer of : I will do this [sex act] for you for this many dollars I don't see how the law will get around First Amendment concerns.

    From watching the movies and TV it seems that undercover cops have to get a clear offer of sex for money.

  • Rat on a train||

  • sharmota4zeb||

    Does this web page violate the bill?


    By the way, in recent years, the religious right in Israel fought (unsuccessfully) to keep prostitution legal on the grounds that a woman has the right to make her own reproductive choices.

  • Mark22||

    By the way, in recent years, the religious right in Israel fought (unsuccessfully) to keep prostitution legal on the grounds that a woman has the right to make her own reproductive choices.

    I fully support the right of women to make their own reproductive choices as long as they are paying for the consequences of their choices themselves (things like health care, child support, parental time off, abortions, STD treatments, etc.).

    As long as I am forced to pay for women's reproductive choices, I do not automatically recognize any intrinsic right for women to make reproductive choices without government interference, beyond the right to remain abstinent.

  • MSimon||

    You have the right to remain silent. If that doesn't work I have a gag.

  • Mark22||

    Another downside: Under FOSTA, any attempts by a website or app to filter out bad content could lead to more legal liability. The only way for companies to stay safe will be to completely give up on content moderation and trying to stop illegal ads from getting through.

    That doesn't necessarily sound like a bad thing.

  • StackOfCoins||

    Backpage saw the writing on the wall, I guess. A quick perusal of the personals section, where prostitutes were advertising, shows that the profiles are all blank save for a phone # and some pictures.

  • PaulTheBeav||

    Paul/Wyden 2020

  • StackOfCoins||

    He's alright for a D, I guess.

  • Hank Phillips||

    Now would be a good time for Libertarian candidates to advertise in recently vacated space at lower rates--and mention the platform. Once working girls understand the way libertarian spoiler votes cause the more violent candidates to lose--irrespective of their looter party--they will understand who COMES OUT AHEAD as a result.

  • AD-RtR/OS!||

    I would think that part of the plenary powers left to states in the Constitution, the regulation of sex trafficking would be part of that - so why is the Federal Government getting involved at all?

  • johnsmith||

    The Internet has been a huge blessing in our lives. But it has also been the primary weapon against the very fabric of a moral society. Certain information and visuals have been inappropriate for children for centuries. But the Internet has placed it into their laps. Might as well have a family porn book for the coffee table. Companies have been stinking up the online experience for years. And its high time the policing comes in and locks it down. The CRAP that is online has put a big crack in human trust. Most of the scum comes from foreign countries trying to swindle people and steal. Porn is the number one things to target and eliminate once and for all. I would LOVE to see them take down all those. We dont' need it in this world. It is not a necessity. And its not helping our world. It is darkening it. America in particular needs to export the foreign entities that have infested our country. Diluting our values. Ruining our schools. Turning our flag gray instead of red, white, and blue. Anyone who comes to this country should be Christian or secular. Not Hindu, Islamic, etc etc. If you want to worship a different GOD GO HOME. We built this country into what made it great. And all those filth minded people that have infested it have only made the ground weak. I dont agree with Trump most of the time. But he's more likely to bring this to a head than some liberal minded sissy or feminist that can't be a real man.

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