Special thanks to legal intern Ross Ufberg, who was lead author of this post.

A group of organizations and individuals are continuing their fight to overturn the Allow States and Victims to Fight Online Sex Trafficking Act, known as FOSTA, arguing that the law violates the Constitution in multiple respects.

In legal briefs filed in federal court recently, plaintiffs Woodhull Freedom Foundation, Human Rights Watch, the Internet Archive, Alex Andrews, and Eric Koszyk argued that the law violates the First and Fifth Amendments, and the Constitution’s prohibition against ex post facto laws. EFF, together with Daphne Keller at the Stanford Cyber Law Center, as well as lawyers from Davis Wright Tremaine and Walters Law Group, represent the plaintiffs.

How FOSTA Censored the Internet

FOSTA led to widespread Internet censorship, as websites and other online services either prohibited users from speaking or shut down entirely. FOSTA accomplished this comprehensive censorship by making three major changes in law:

First, FOSTA creates a new federal crime for any website owner to “promote” or “facilitate” prostitution, without defining what those words mean. Organizations doing educational, health, and safety-related work, such as The Woodhull Foundation, and one of the leaders of the Sex Workers Outreach Project USA (SWOP USA), fear that prosecutors may interpret advocacy on behalf of sex workers as the “promotion” of prostitution. Prosecutors may view creation of an app that makes it safer for sex workers out in the field the same way. Now, these organizations and individuals—the plaintiffs in the lawsuit—are reluctant to exercise their First Amendment rights for fear of being prosecuted or sued.

Second, FOSTA expands potential liability for federal sex trafficking offenses by adding vague definitions and expanding the pool of enforcers. In addition to federal prosecution, website operators and nonprofits now must fear prosecution from thousands of state and local prosecutors, as well as private parties. The cost of litigation is so high that many nonprofits will simply cease exercising their free speech, rather than risk a lawsuit where costs can run into the millions, even if they win.

Third, FOSTA limits the federal immunity provided to online intermediaries that host third-party speech under 47 U.S.C. § 230 (“Section 230”). This immunity has allowed for the proliferation of online services that host user-generated content, such as Craigslist, Reddit, YouTube, and Facebook. Section 230 helps ensure that the Internet supports diverse and divergent viewpoints, voices, and robust debate, without every website owner needing to worry about being sued for their users’ speech. The removal of Section 230 protections resulted in intermediaries shutting down entire sections or discussion boards for fear of being subject to criminal prosecution or civil suits under FOSTA.

How FOSTA Impacted the Plaintiffs

In their filings asking a federal district court in Washington, D.C. to rule that FOSTA is unconstitutional, the plaintiffs describe how FOSTA has impacted them and a broad swath of other Internet users. Some of those impacts have been small and subtle, while others have been devastating.

Eric Koszyk is a licensed massage therapist who heavily relied on Craigslist’s advertising platform to find new clients and schedule appointments. Since April 2018, it’s been hard for Koszyk to supplement his families’ income with his massage business. After Congress passed FOSTA, Craigslist shut down the Therapeutic Services of its website, where Koszyk had been most successful at advertising his services. Craigslist further prohibited him from posting his ads anywhere else on its site, despite the fact that his massage business is entirely legal. In a post about FOSTA, Craigslist said that they shut down portions of their site because the new law created too much risk. In the two years since Craigslist removed its Therapeutic Services section, Koszyk still hasn’t found a way to reach the same customer base through other outlets. His income is less than half of what it was before FOSTA.

Alex Andrews, a national leader in fighting for sex worker rights and safety, has had her activism curtailed by FOSTA. As a board member of SWOP USA, Andrews helped lead its efforts to develop a mobile app and website that would have allowed sex workers to report violence and harassment. The app would have included a database of reported clients that workers could query before engaging with a potential client, and would notify others nearby when a sex worker reported being in trouble. When Congress passed FOSTA, Alex and SWOP USA abandoned their plans to build this app. SWOP USA, a nonprofit, simply couldn’t risk facing prosecution under the new law.

FOSTA has also impacted a website that Andrews helped to create. The website Rate That Rescue is “a sex worker-led, public, free, community effort to help everyone share information” about organizations which aim to help sex workers leave their field or otherwise assist them. The website hosts ratings and reviews. But without the protections of Section 230, in Andrews’ words, the website “would not be able to function” because of the “incredible liability for the content of users’ speech.” It’s also likely that Rate That Rescue’s creators face criminal liability under FOSTA’s new criminal provisions because the website aims to make sex workers’ lives and work safer and easier. This could be considered to violate FOSTA’s provisions that make it a crime to promote or facilitate prostitution.

 Woodhull Freedom Foundation advocates for sexual freedom as a human right, which includes supporting the health, safety, and protection of sex workers. Each year, Woodhull organizes a Sexual Freedom Summit in Washington, DC, with the purpose of bringing together educators, therapists, legal and medical professionals, and advocacy leaders to strategize on ways to protect sexual freedom and health. There are workshops devoted to issues affecting sex workers, including harm reduction, disability, age, health, and personal safety. This year, COVID-19 has made an in person meeting impossible, so Woodhull is livestreaming some of the events. Woodhull has had to censor their ads on Facebook, and modify their programming on YouTube, just to get past those companies’ heightened moderation policies in the wake of FOSTA.

The Internet Archive, a nonprofit library that seeks to preserve digital materials, faces increased risk because FOSTA has dramatically increased the possibility that a prosecutor or private citizen might sue it simply for archiving newly illegal web pages. Such a lawsuit would be a real threat for the Archive, which is the Internet’s largest digital library.

FOSTA puts Human Rights Watch in danger, as well. Because the organization advocates for the decriminalization of sex work, they could easily face prosecution for “promoting” prostitution.

Where the Legal Fight Against FOSTA Stands Now

With the case now back in district court after the D.C. Circuit Court of Appeals reversed the lower court’s decision to dismiss the suit, both sides have filed motions for summary judgment. In their filings, the plaintiffs make several arguments for why FOSTA is unconstitutional.

First, they argue that FOSTA is vague and overbroad. The Supreme Court has said that if a law “fails to give ordinary people fair notice of the conduct it prohibits,” it is unconstitutional. That is especially true when the vagueness of the law raises special First Amendment concerns.

FOSTA does just that. The law makes it illegal to “facilitate” or “promote” prostitution without defining what that means. This has led to, and will continue to lead to, the censorship of speech that is protected by the First Amendment. Organizations like Woodhull, and individuals like Andrews, are already curbing their own speech. They fear their advocacy on behalf of sex workers may constitute “promotion” or “facilitation” of prostitution.

The government argues that the likelihood of anyone misconstruing these words is remote. But some courts interpret “facilitate” to simply mean make something easier. By this logic, anything that plaintiffs like Andrews or Woodhull do to make sex work safer, or make sex workers’ lives easier, could be considered illegal under FOSTA.

Second, the plaintiffs argue that FOSTA’s Section 230 carveouts violate the First Amendment. A provision of FOSTA eliminates some Section 230 immunity for intermediaries on the Web, which means anybody who hosts a blog where third parties can comment, or any company like Craigslist or Reddit, can be held liable for what other people say.

As the plaintiffs show, all the removal of Section 230 immunity really does is squelch free speech. Without the assurance that a host won’t be sued for what a commentator or poster says, those hosts simply won’t allow others to express their opinions. As discussed above, this is precisely what happened once FOSTA passed.

Third, the plaintiffs argued that FOSTA is not narrowly tailored to the government’s interest in stopping sex trafficking. Government lawyers say that Congress passed FOSTA because it was concerned about sex trafficking. The intent was to roll back Section 230 in order to make it easier for victims of trafficking to sue certain websites, such as Backpage.com. The plaintiffs agree with Congress that there is a strong public interest in stopping sex trafficking. But FOSTA doesn’t accomplish those goals—and instead, it sweeps up a host of speech and advocacy protected by the First Amendment.

There’s no evidence the law has reduced sex trafficking. The effect of FOSTA is that traffickers who once posted to legitimate online platforms will go even deeper underground—and law enforcement will have to look harder to find them and combat their illegal activity.

Finally, FOSTA violates the Constitution’s prohibition on criminalizing past conduct that was not previously illegal. It’s what is known as an “ex post facto” law. FOSTA creates new retroactive liability for conduct that occurred before Congress passed the law. During the debate over the bill, the U.S. Department of Justice even admitted this problem to Congress—but the DOJ later promised to “pursu[e] only newly prosecutable criminal conduct that takes place after the bill is enacted.” The government, in essence, is saying to the courts, “We promise to do what we say the law means, not what the law clearly says.” But the Department of Justice cannot control the actions of thousands of local and state prosecutors—much less private citizens who sue under FOSTA based on conduct that occurred long before it became law.

* * *

FOSTA sets out to tackle the genuine problem of sex trafficking. Unfortunately, the way the law is written achieves the opposite effect: it makes it harder for law enforcement to actually locate victims, and it punishes organizations and individuals doing important work. In the process, it does irreparable harm to the freedom of speech guaranteed by the First Amendment. FOSTA silences diverse viewpoints, makes the Internet less open, and makes critics and advocates more circumspect. The Internet should remain a place where robust debate occurs, without the fear of lawsuits or jail time.

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