Proposed Clarifications to SESTA-FOSTA

Late last month, the House passed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) with the Stop Enabling Sex Traffickers Act as an amendment to it.

While well-intentioned, the final version of the bill included language that will ultimately make it more difficult for prosecutors to bring sex traffickers for justice and discourage websites from monitoring content posted by users.

TechFreedom and Engine Advocacy and NetChoice have called on the Senate to fix the major flaws in the bill already passed by the House to fight sex trafficking online. Below are our proposed clarifications, with the first one offered by Senator Wyden and to be voted on early next week.

Amendment #1: Good Samaritan aspect of Sec. 230 not impaired (avoid the “Moderator’s Dilemma”)

Add the following one sentence as Section 230(g):

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove, material it considers objectionable shall not be considered in determining its liability for any material that it has not restricted access to or removed.

A platform’s good faith decision to employ specific content moderation practice cannot be used to demonstrate knowledge or a deliberate attempt to avoid gaining knowledge.

Explanation: The sponsors have repeatedly said they are not undoing the Good Samaritan aspect of Section 230. Indeed, they want websites to monitor for sex trafficking. Stating this clearly is necessary to assure that websites do not face a perverse incentive not to monitor user content. Without clear protection for monitoring, SESTA could unintentionally harm sex trafficking victims. Indeed it could harm anyone who might benefit from monitoring for any kind of harmful or abusive activity online, from violent extremism to harassment or stalking. Simply preserving the Section 230(c)(2)(A) immunity, as the bill does, will not avoid these perverse results because that immunity only protects content removal; content monitoring is currently implicitly protected by Section 230(c)(1). Law Professor Eric Goldman proposed this amendment in November in questions for the record following his Senate testimony.

Colloquy #1: Good Samaritan Issues (alternative to amendment)

Q: If a website operator becomes aware of sex trafficking content in the course of monitoring content on their site, could that constitute knowledge under Section 1591?

A: Yes, if a operator gains specific, actual knowledge of sex trafficking content — in other words, if the operator knows that a particular post advertised a person for commercial sex act and knows advertisement that the person in the post is a minor or was forced, defrauded, or coerced, the operator would have sufficient knowledge to face liability under Section 1591, regardless of whether that knowledge was obtained in the process of moderating content.,

Q: But the mere fact that an operator engaged in content moderation shouldn’t increase the operator’s liability under Section 1591?

A: Correct.

Q: For example, a plaintiff or prosecutor could not establish that a operator knew about a particular trafficking post simply because the operator engaged in general content moderation practices, and thus had some degree of generalized knowledge about user content, correct?

A: Correct. The plaintiff or prosecutor would have to show that the operator knew of the existence of the particular trafficking ad in question and knew that the ad involved a minor or a person offered for a commercial sex act through force, fraud, or coercion. The fact that the operator engages in content moderation practice alone would be insufficient to establish knowledge under this section.

Report Language and Colloquy #1: Clarify intention to limit amendments to sex trafficking.

Include the following in legislative history:

This bill is not intended to change the application of Section 230 except as explicitly provided.

SESTA’s sponsors have repeatedly stated the bill is narrow and targeted, applying only to sex trafficking. To ensure this is so, these statements should be formalized in report language and through colloquy.

Even though the bill’s “sense of Congress” provisions all focus on sex trafficking, judges may nonetheless cite SESTA as evidence of congressional intent in Section 230 cases having nothing to do with sex trafficking. This could lead to significant confusion in the case law, especially given the dearth of legislative history.

Amendment #2: Cure ex post facto defect.

The necessary amendment is simple:

Delete the clause following “The amendments made by this section shall take effect on the date of the enactment of this Act.”

DOJ has objected to SESTA’s retroactive criminal effect as unconstitutional. Passing obviously unconstitutional language with the intent to fix it later would set a dangerous precedent. This language should be fixed immediately.

Colloquy #2: Clarify Meaning of “Participation in a Venture.”

A colloquy such as the following would help to clarify what it means to “knowingly assisting, supporting, or facilitating a violation of [Section 1591]” (alternative to be added before colloquy 1):

Q: The Department of Justice has concluded that the term “participation in a venture” in Section 1591 currently requires a defendant to (1) know that he or she received a benefit from trafficking, (2) know that the specific advertisement at issue related to commercial sex, and (3) know that the specific advertisement at issue involve a minor or force, fraud, or coercion? Is this your understanding of the current law?

A: Yes?

Q: Is SESTA intended to alter this standard?

A: No.

Q: So is the definition of ‘participation in a venture’ intended to cover (a) a provider that knows that they are providing services that might theoretically be used for illegal activities, or (b) a provider that knows that there is a specific illegal action that their services are being used for? In other words, by way of analogy, if you’re a taxi driver, do you just need to know that you’re picking someone up outside a bank, or do you need to know that you’re picking up a bank robber outside a bank?

A: The term “participation in a venture” requires acting with actual knowledge of specific, unlawful content. In that analogy, the taxi driver would have to know it was picking a bank robber.

Q: If a website operator discovers a trafficking ad written in coded language, as trafficking ads generally are, and the platform operator does not recognize it as as a sex trafficking ad, could the operator be held to have had “knowledge” of that trafficking content and thus be held to have “participated in the venture?”

A: No, provided they were operating in good faith.

Q: Let’s consider a second analogy. If a bank robber in a mask gets on a crowded bus in the back, the driver may not see them. Would the bus driver have “knowledge” that they were facilitating the get-away of that bank robber such that they could be charged as an accomplice in the robbery of the bank?

A: No.

Q: What if the bus driver knew that, earlier that year, a bank robber had used a bus as a getaway vehicle after a robbery? Again, the bank robber still did not see the robber. Could he be held liable for facilitating the robbery?

A: The bill requires actual knowledge, rather than constructive knowledge, but because willful blindness can substitute for actual knowledge in certain circumstances, the bus driver could be held to have culpable knowledge if they deliberately refrained from obtaining knowledge about the nature of the passengers on the bus.