Standing next to Trump as he signed the legislation was Yvonne Ambrose of Chicago, whose 16-year-old daughter, Desiree Robinson, was slain after being prostituted on Backpage in 2016. “It means so much to our family,” Ambrose said of the bill. “Hopefully, there won’t be many more people who have to endure that pain.”
The bill, nicknamed “FOSTA” for its title, “Allow States and Victims to Fight Online Sex Trafficking Act,” goes into effect immediately, but its impact was already being seen around the Internet as sites shut down sex-related areas and stopped accepting sex-related advertising.
The signing comes just days after seven executives for Backpage.com were arrested on a 93-count indictment that alleges the website facilitated prostitution and laundered tens of millions of dollars in profits, and that teenage girls were sold for sex on the site. Some of those girls were killed. The government also shut down Backpage’s classified ad websites around the world, and moved to seize houses and bank accounts around the United States.
“FOSTA gives prosecutors the tools they need,” said Rep. Ann Wagner (R-Mo.), chief sponsor of the bill, “to ensure that no online business can ever approach the size of Backpage again.”
Civil liberties advocates attacked the bill as too broad, creating new liability for websites that had previously been protected by the Communications Decency Act for content posted by third parties. A number of websites, including Craigslist, began shutting down sections that might be construed as sex-related after the bill passed the Senate last month, and Wagner said online sex-related advertising revenue had declined 87 percent in the past 60 days, roughly when her bill passed the House.
Advocates for sex workers also criticized the bill as depriving them of a safe place to screen customers, as well as removing a tool for law enforcement to track pimps, locate missing children and build criminal cases. “Shutting down every service provider and website will not end sex trafficking,” said Jean Bruggeman, executive director of Freedom Network USA, a coalition of anti-trafficking advocates. “What it will do is push traffickers to overseas websites that are beyond the reach of law enforcement, making it harder to prosecute them and harder to find them through the victims.”
But the horror stories emerging from websites such as Backpage, in which young girls were trafficked for months or even years, created a tide of frustration that the websites couldn’t be forced to stop hosting the ads and that the victims couldn’t sue the sites for damages. The federal indictment of Backpage officials unsealed Monday described one girl who was prostituted on Backpage from ages 14 to 19, saying she was gang-raped, choked to the point of seizures and forced to perform sex acts at gunpoint. The Communications Decency Act, often credited with creating an environment of free speech which enabled the Internet to flourish, was successfully invoked by Backpage and others in claiming they were merely hosting questionable content, not creating it. Criminal cases in California and civil cases in many states were dismissed by judges who said the intent of the act was to protect the website hosts, and they invited Congress to change the law.
Congress accepted the invitation. First, the Senate investigations subcommittee launched a detailed investigation of Backpage, eventually extracting millions of documents from the company showing Backpage was raking in more than $100 million in annual profit in recent years, and then finding Backpage was in fact involved in its advertisers’ content. Internal emails demonstrated that Backpage officials edited ads, or advised customers how to edit their own ads, so that terms indicating that a person was a “teen” or “young” or “fresh” would be removed, yet the ad itself would remain online and the victim still prostituted. The report issued by the Senate committee in January 2017 boiled with anger, declaring that “Backpage knows that it facilitates prostitution and child sex trafficking” and that “Backpage’s public defense is a fiction.”
Backpage top executives James Larkin, Michael Lacey and Carl Ferrer were summoned by the committee on the day after the report’s release but invoked their Fifth Amendment right not to incriminate themselves. At the same time, Backpage announced that its “Adult Services” section would close, but the ads merely migrated to the “Dating” section. And young girls continued to be prostituted on the site, the federal indictment alleges.
Meanwhile, an investigation by The Washington Post found that Backpage was not only deeply involved in creating ad content but also soliciting prostitutes from other websites to advertise on Backpage. Documents uncovered by a Washington-based company, CoStar, revealed that a contractor in the Philippines would copy prostitutes’ ads from competitors’ websites around the world, recreate them in a Backpage template, then contact the prostitutes and offer them free ads, already completed, on Backpage.
The FBI later obtained the CoStar documents, and prosecutors cited them in the new indictment as evidence that “Backpage often affirmatively creates the content of the illegal prostitution ads being published.” The Philippines project was part of “Backpage’s plans for ‘International Planning and Expansion,’ ” the indictment stated.
So in April 2017, Wagner introduced FOSTA in the House, and Sen. Rob Portman (R-Ohio), who had overseen the Senate investigation of Backpage, introduced SESTA — the Stop Enabling Sex Traffickers Act — last August. Yvonne Ambrose testified tearfully before the Senate in support of SESTA. A combined version of the two passed the House under FOSTA in February, and then FOSTA cleared the Senate by a 97-2 vote last month. Sen. Ron Wyden (D-Ore.), one of the original authors of the Communications Decency Act, was one of the two “no” votes, saying it was a mistake to change the law and would have unforeseen consequences for the Internet.
The bill amends parts of four federal laws, beginning with clarifying that the Communications Decency Act “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution.” It adds a clause to the decency act that makes clear it has no effect on civil suits or state criminal cases related to federal sex-trafficking crimes. FOSTA amends the “Mann Act,” prohibiting interstate prostitution, by adding a new section prohibiting using a website to “promote or facilitate the prostitution of another person.”
The bill also amends the law on sex trafficking of children to clarify “participating in a venture” as “knowingly assisting, supporting or facilitating a violation” of the law. And FOSTA creates the ability for state attorneys general to bring civil suits against violators of federal prostitution laws. Anti-trafficking advocates had felt that federal authorities were sometimes slow to pursue violators, and state attorneys general have long denounced sites like Backpage without being able to take action.
Large Internet companies such as Google and Facebook initially declared their opposition to the bill because of the increased responsibility it would place on websites to monitor third-party content. Google began marshaling its lobbyists for a fight, urging congressional staff to keep members from co-sponsoring Wagner and Portman’s bills. But the big companies backed down as they met resistance from members of Congress and anti-trafficking groups, and as their own status plunged in the wake of revelations about election interference and private data sharing. When Facebook chief operating officer Sheryl Sandberg declared her support for the bills, the path was cleared.
“This is a big victory for trafficking victims and survivors,” Portman said, “who for too long have been denied the opportunity to get the justice they deserve. No one thought that we could get this done. But with the bravery of sex-trafficking survivors, the hard work of anti-trafficking advocates, and the commitment of my colleagues, we did.”
Critics still feel the new law creates too much opportunity for lawsuits against websites for content they didn’t post and didn’t know about. Emma Llansó of the Center for Democracy & Technology said Craigslist has already shut down its personals, missed connections and dating sections, many of which have long had innocent intents. In those sections, Craigslist posted a note which reads, “US Congress just passed HR 1865, ‘FOSTA,’, seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking Craigslist personals offline. Hopefully we can bring them back some day.”
“That’s the difficult position a FOSTA law puts operators in,” Llansó said, creating reluctant censorship by sites fearful of liability. She said websites may not be aware of suspicious content in one area of the site, and that where the decency act credits websites for attempting to moderate objectionable content, the new law “may discourage them from moderating” for fear they will be accused of knowing about bad content.
Ads by sex workers are already closing and moving to less well-known or dark websites, said Kimberly Mehlman-Orozco, an author and expert witness on human trafficking. Or they’re moving to social media sites such as Facebook and Twitter, “where they’re able to hide under the veneer of a legitimate social media account,” she said.
Mehlman-Orozco, and some law enforcement officials, noted that Backpage was often cooperative with police investigations and provided a place to track the traffickers. “What we should have done was facilitated the cooperation” between the websites and police, requiring more and better notification, she said. “All we’ve done is gotten rid of one virtual place where this can happen. But there are thousands of others out there waiting,” many of them out of reach of American law enforcement. One adult site posted a thinly veiled message on Facebook advising users that it was running slow because it now had so much traffic.
Wagner said that the law was written specifically to target criminal activity involving sex trafficking and shouldn’t affect websites that aren’t knowingly violating criminal laws. “It narrowly goes in and amends both the CDA and builds out the new crime” in the other laws, the congresswoman said. She said it was written with guidance from state prosecutors and the Justice Department but that “the best part is it combines criminal power with civil power so victims can have justice.”