Takisha Richardson, Cohen Milstein Sellers & Toll, Palm Beach Gardens

 

Lawyers may differ in their assessments of Section 230 of the Communications Decency Act, but one thing is clear: The anti-sex trafficking law has been a powerful shield for internet companies in fending off liability suits. Now the scope of Section 230 is being redefined by Congress, one of the few times that has happened since 1996.

The U.S. House at the end of February passed its version of a bill known as FOSTA — or Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865) — and the U.S. Senate is on track to approve it later this month. Here’s an overview of how the legislation has evolved and what it might mean for litigation in the future.

 

What happened to SESTA?

The bill has gone by two different names, often used interchangeably. SESTA is the name of the legislation introduced in the Senate last August by Sens. Rob Portman, R-Ohio, and Richard Blumenthal, D-Connecticut, and stands for the Stop Enabling Sex Traffickers Act of 2017 (S. 1693). That bill was amended and approved by the Senate Commerce, Science, and Transportation Committee in January.

FOSTA is the name of the companion bill in the House. Both  versions underwent significant changes in the legislative process, and the Senate bill is essentially a compilation of the two. Critics like the Electronic Frontier Foundation have referred to it as a “Frankenstein combination.”

What would the legislation do?

The latest version of FOSTA would do several key things. Perhaps most significantly, the bill amends Section 230 to say that nothing in that section limits any civil claim or criminal action under federal anti-trafficking law or criminal prosecution under state law as long as the state law mirrors the federal law. It goes on to expand the scope of what constitutes a crime under federal law and to expressly permit civil actions by state attorneys general.

The bill creates new criminal and civil causes of action for operating a website “with the intent to promote or facilitate the prostitution of another person.” And it amends a separate provision of federal anti-trafficking law to say that “knowingly assisting, supporting, or facilitating” sex trafficking also constitutes a violation.

What do tech companies think about the bill?

It’s complicated, mainly because the industry has not been united. The Internet Association—which represents Google, Facebook, Twitter and Reddit, among other companies — initially came out in strong opposition to SESTA over language opening companies up to liability for “knowing conduct” that facilitates human trafficking. The group warned that the broad wording would invite a “new wave of frivolous and unpredictable actions against legitimate companies.”

Meanwhile, other tech companies, such as IBM and Oracle, expressed support for the bill. Those companies, however, seem unlikely to be directly impacted by the legislation, since their business models are not centered around third party-generated content — unlike Facebook or Google. Tech news outlet The Verge said the issue was becoming a proxy fight for Oracle v. Google and giving Oracle a way to cause its rival some political pain.

After the authors of the bill agreed to changes in the wording, the Internet Association did an abrupt about-face in support of the amended SESTA bill. But its statements since then have been more cautious. In reaction to House passage of FOSTA, the group said its members are committed to fight sex trafficking but added it’s “important to protect the laws that allow the internet to thrive and empower online platforms to foster a legal and safe environment.”

What do critics say about the latest version?

Ardent defenders of Section 230 say the bill would create an unclear liability landscape for internet companies and will create more problems than it solves. “The experts who are closest to the bill don’t really understand all of its implications,” said Eric Goldman of Santa Clara University’s School of Law. “Anyone else probably understands very little.”

Goldman said one of the most worrying aspects of the bill is the fact that it has two different standards for liability. While intent would require showing a company took action with the express purpose of facilitating trafficking, he said, the “knowingly assisting, supporting, or facilitating” language is vague — and combining the two makes it all the more muddied. To avoid liability, Goldman warned, some companies may simply try to avoid moderating their forums in any way, creating even more “cyber cesspools.”

 

Some say the concerns are overblown

Litigators on the other side of this issue certainly don’t think so. “I can’t imagine taking that [position] of, ‘We’re just not going to moderate because then we’re going to have some deniability,’ ” said Takisha Richardson, a former state prosecutor who oversaw trafficking cases in West Palm Beach. Burying your head in the sand is not an option, said Richardson, who recently joined the firm Cohen Milstein Sellers & Toll in Palm Beach Gardens. Authorities will contact companies if they find online ads for people they suspect are being trafficked or underage.

Karen Chesley of Boies Schiller Flexner, who is litigating a civil case against Backpage.com in Orlando filed last year with the women’s advocacy group Legal Momentum, said fears about expansive new liability for tech companies are overblown. “ It would be a tortured reading of the bill to say that accepting seemingly legitimate ads, without more, would create liability for knowingly facilitating sex trafficking,” she said.

“That big picture — scary monster — that this is just going to quell all free speech I think is frankly kind of silly,” said Carol Robles-Roman, president and CEO of Legal Momentum.

When is the bill likely to pass?

Probably this month. David Popp, a spokesman for Senate Majority Leader Mitch McConnell, R-Kentucky, said the leadership is aiming to take up FOSTA before lawmakers go home March 23 after considering a bank regulation bill and at least one administration nominee.

Keith Chu, a spokesman for Sen. Ron Wyden, D-Oregon, one of the original authors of Section 230 and  an outspoken critic of SESTA and FOSTA, said he is not currently trying to block the bill.

Ben Hancock is a San Francisco-based reporter covering litigation, technology, finance and the future of law. He writes a weekly news briefing covering those topics called “What’s Next.” Contact him at bhancock@alm.com or on Twitter: @benghancock.