The legislation arose as Congress learned that its current anti-trafficking laws could not be applied to websites like Backpage, which host thousands of ads daily for female and male prostitutes, some of which are children being trafficked by adults. Backpage has successfully cited the Communications Decency Act, which protects websites from liability for material posted by third parties, to evade both criminal prosecution and civil lawsuits.
Congress launched an investigation into Backpage which showed that its operators helped customers modify their ads to delete references to teenage prostitutes, yet still allowed the ads to run. The Washington Post then reported that Backpage used a company in the Philippines to solicit both prostitutes and johns from other websites, and created new ads for the prostitutes.
The proposed law, titled “Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” or “FOSTA,” amends the Communications Decency Act by specifically allowing criminal and civil actions against a website if its conduct violates federal sex trafficking laws. And in the sex trafficking laws, FOSTA defines a participant as someone “knowingly assisting, supporting or facilitating a violation,” and authorizes state attorneys general to file suit in federal court.
Many Internet companies initially opposed any alteration of the Communications Decency Act, saying it would open them up to lawsuits for content they weren’t aware of or involved in. But many of the big Internet players dropped their opposition in recent months, with Facebook chief operating officer Sheryl Sandberg renewing her support on Monday, and top executives at IBM, Oracle and Hewlett Packard Enterprise issuing a letter Tuesday backing the legislation.
Sandberg said Facebook supported legislation “that would allow responsible companies to continue fighting sex trafficking while giving victims the chance to seek justice against companies that knowingly facilitate such abhorrent acts.
Some Internet groups, including Google, continue to oppose the law as dangerously broad and damaging to the landmark CDA, which they say enabled the growth of the Internet. The Electronic Frontier Foundation wrote that the new law would open websites to “increased criminal and civil liability at both the federal and state levels” and “would not require a platform to have knowledge that people are using it for sex trafficking purposes.” That opposition is likely to continue in the Senate.
The bill was filed last year by Rep. Ann Wagner (R-Mo.) and eventually attracted 176 co-sponsors. Wagner said she first became involved in the issue when she served as U.S. ambassador to Luxembourg, and learned of sex trafficking occurring in Eastern Europe. Upon returning to Missouri, she found that “sex trafficking is hiding in plain sight, and as this horrific crime moved from the streets to the Internet, it’s become even more prolific.”
Although public pressure caused Craigslist to shut down its adult services sections, neither that nor civil lawsuits have stopped Backpage from hosting the prostitution ads. Wagner filed FOSTA last April, and Sen. Rob Portman (R-Ohio) filed a version in the Senate, the “Stop Enabling Sex Traffickers Act,” or “SESTA,” last August.
Portman’s bill sailed through the Commerce Committee three months later. Wagner’s bill had a slightly bumpier path, with the House Judiciary Committee amending the bill in December to attack the problem through the Mann Act, an old anti-prostitution law, rather than the CDA. But an amendment submitted by Rep. Mimi Walters (R-Calif.) last week restored language similar to the Senate’s bill that clarifies the CDA cannot be used as a bar to liability.
“This is a landmark piece of legislation,” Wagner said. “This is not just about Backpage. There are hundreds of others out there that are much worse. They’ve got to be brought down also.”
Prosecutors such as Manhattan District Attorney Cyrus R. Vance Jr. voiced their support for the bill. “The ability to hold websites criminally liable for facilitating sex trafficking,” Vance said, “or the exploitation of children would be transformative in the fight against human trafficking. I thank Congresswoman Wagner for her steadfast dedication to protecting trafficking victims.”
Lawyer Antonio Romanucci is pursuing a lawsuit in Chicago against Backpage on behalf of Yvonne Ambrose, whose 16-year-old daughter was slain in 2016 after being prostituted on the website. “Our country took an important step forward today,” Romanucci said, “to protect our children from the underground haven of sexual predators who hide behind hidden channels online to buy and sell our most vulnerable members of society. Our Congressional leadership proved with this vote that politics and corporate interests should not take precedence over ensuring our children’s safety.”
Some in the tech community continued to raise issues with FOSTA, and some writers called it a “Frankenstein bill,” merging parts of the Senate’s SESTA with the House’s FOSTA. “By adding SESTA to the [House] bill,” said Evan Engstrom, executive director of Engine, an advocacy group for Internet start-ups, “you’re creating a situation that may end up harming efforts to stop human trafficking. It creates potential legal liability for knowingly facilitating trafficking. The definition of knowledge is complicated,” and material can be posted on websites without hosts’ knowledge. “If you don’t know, you probably shouldn’t be held liable.”
The final vote in the House was 388-25.