House Passes Bill to Combat Sex Trafficking, with Potential Implications for User-Posted Content

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A bill passed by the US House of Representatives raises some concerns about the legal liability of the content that websites host.

On Tuesday, February 27, the U.S. House of Representatives passed H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) of 2017, by an overwhelming bipartisan vote of 388 to 25. The bill is the product of Congress' latest efforts to combat online sex trafficking.

Its passage is the source of heartburn for some in the tech community who believe provisions of the bill endanger the liability protections that website operators have in relation to the content users may post to their sites. Those concerned take issue not only with the underlying legislation but changes made to the bill between the time it passed the House Judiciary Committee and when it was ultimately considered on the House floor.

Specifically, a provision was added to FOSTA that amends section 230 of the Communications Decency Act of 1996 (CDA). Section 230 stipulates that websites and providers hosting user-generated content are generally shielded from legal responsibility for the content posted to their sites by their users. Some argue that section 230 has impeded efforts by state and local prosecutors to hold websites that host criminal content accountable. In response, FOSTA amends the CDA to allow states to enforce criminal laws related to sex trafficking without having to take into account their consistency with the CDA. Some within the tech community worry changes to section 230 will expose companies and providers to an abundance of lawsuits while hurting what many believe to be a central tenet of the internet: the free exchange of ideas and information.

Calls for amending section 230 are in part a byproduct of a Senate Homeland Security & Governmental Affairs' Permanent Subcommittee on Investigations January 2017 report finding that — a classified advertising website — had hosted ads that facilitated child sex trafficking and prostitution. Backpage has not denied that its site was used for criminal activity, but it argues that its platform is as a "mere host of content created by others and therefore immune from liability."

FOSTA now heads to the Senate, where a similar bill, S. 1693, the Stop Enabling Sex Traffickers Act (SESTA) of 2017, enjoys support from both sides of the aisle. SESTA includes the contentious section 230 language. EDUCAUSE will continue to monitor any legislative action pertaining to FOSTA and SESTA as either will have implications for user-posted content if enacted into law.

Kathryn Branson is an associate with Ulman Public Policy.

© 2018 Kathryn Branson. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.