EFF fought FOSTA in 2018. We fought the bill in Congress and, when the president signed it into law, immediately set our sights on challenging it in court.
The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) was ostensibly passed to fight sex trafficking. The reality, however, is that the law makes sex trafficking victims less safe while also criminalizing the protected speech of those who advocate for, and provide resources to, adult consensual sex workers. It’s the broadest Internet censorship law in more than two decades.
Numerous free speech organizations raised concerns about the bill. So did a litany of sex trafficking experts, who pointed out that it would directly put trafficking victims in more danger.
From the time that FOSTA was introduced in Congress (along with its sibling bill SESTA, the Stop Enabling Sex Traffickers Act), tens of thousands of you wrote or called your members of Congress and urged them to reject the bill. You understood that FOSTA would do nothing to stop sex trafficking, but it would force online platforms to become much more restrictive, silencing a lot of marginalized voices in the process.
You weren’t alone: numerous free speech organizations raised concerns about the bill. So did a litany of sex trafficking experts, who pointed out that it would directly put trafficking victims in more danger.
Unfortunately, we were all drowned out. At the end of 2017, big Internet companies began to endorse and lobby for the bill, leaving free speech advocates outnumbered. After some minor amendments, the bill passed in March.
It didn’t take long to start seeing the bill’s harmful effects. Websites started removing forums for speech that were even remotely related to sexual content, such as Craigslist removing its entire personals section. Other platforms shut down entirely rather than face FOSTA’s crushing criminal and civil liability.
The resulting censorship has acutely harmed sex workers, who relied on the Internet to help screen clients, avoid violence by sharing electronic “bad date” lists, and seek healthcare and other resources. Some sex workers report that FOSTA has forced them back into more dangerous, street-based work.
FOSTA also represented the first time Congress repealed portions of the most important law protecting online speech: Section 230. Section 230 is largely responsible for creating the diverse array of Internet platforms and other services that allow anyone to speak, publish, and organize online.
Although EFF and its allies fought hard against FOSTA throughout 2017 and early 2018, we were not able to stop it from becoming law. But the fight to stop FOSTA did not end there.
In July, EFF and a team of outstanding lawyers filed a lawsuit challenging FOSTA’s constitutionality on behalf of two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist.
The lawsuit argues that that FOSTA silences online speech by muzzling Internet users and forcing online platforms to censor their users, violating the First Amendment in multiple respects. It punishes certain types of speech, including expressing certain viewpoints that advocate for decriminalization of sex work.
Despite its supporters’ claims, the law is not narrowly tailored to ban only criminal acts. It broadly sweeps up a host of protected speech within its prohibitions, much of which is not defined. Further, the terms in the law are so vague that it’s unclear what exactly Congress sought to prohibit, creating uncertainty for many Internet speakers as to whether what they say creates liability under the law.
FOSTA also violates the Fifth Amendment’s Due Process Clause because of its vague and undefined terms. And because FOSTA explicitly made Internet speakers and online platforms liable for speech that occurred well before Congress passed the law, it violates the Constitution’s prohibition on ex post facto laws.
The trial court hearing the challenge dismissed the case in late September without addressing whether FOSTA was unconstitutional. We think the decision is wrong and have asked a federal appellate court to reverse the dismissal. The appellate court has scheduled briefing in the case to begin in early 2019, and we look forward to having our day in court to demonstrate that FOSTA should be struck down.
The fight over FOSTA is just one example of how EFF’s work in Congress and in the courts complement each other. We lost the fight in Congress, but we are hopeful that constitutionally protected rights will prevail.
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2018.
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