EFF represents two human rights organizations, a digital library, an activist for sex workers, and a certified massage therapist in a lawsuit challenging the Allow States and Victims to Fight Online Sex Trafficking Act, or FOSTA, on grounds that it silences online speech by muzzling Internet users and forcing online platforms to censor their users. FOSTA represents the most broadly-based and comprehensive legislative censorship of Internet speech since Congress passed the anti-indecency provisions of the Communications Decency Act in 1996.
About FOSTA and the legal challenge
FOSTA contains a number of speech-restricting provisions, but most significantly, it:
- Created new federal criminal and civil liability for anyone who “owns, manages, or operates an interactive computer service” and speaks, or hosts third-party content, with the intent to “promote or facilitate the prostitution of another person.”
- Expanded criminal and civil liability to treat any online speaker or platform that allegedly assists, supports, or facilitates sex trafficking as though they are participating “in a venture” with individuals directly engaged in sex trafficking.
- Carved out significant exceptions to the immunity provisions of 47 U.S.C. § 230 to create new criminal and civil liability for online platforms based on whether the content and viewpoints expressed by their users’ speech might be seen as promoting or facilitating prostitution, or as assisting, supporting or facilitating sex trafficking.
FOSTA’s prohibitions are entirely content-based, imposing harsh criminal penalties and authorizing heavy civil liability for online publishers who allegedly “promote” or “facilitate” the “prostitution” of another person, or who act in “reckless disregard” that their actions “contribute to sex trafficking.” Both through direct restrictions and because of multiple layers of ambiguity, FOSTA is driving constitutionally protected speech off the Internet at a rapid pace; and, like the CDA before it, FOSTA “threatens to torch a large segment of the Internet community.” Reno v. ACLU, 521 U.S. 844, 882 (1997).
FOSTA violates the First Amendment in multiple respects: It punishes certain types of speech - including expressing certain viewpoints that advocate for decriminalization of sex work - and is not narrowly tailored. It broadly sweeps up a host of protected speech within its prohibitions, many of which are 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 online speech that occurred well before Congress passed the law, it violates the Constitution's prohibition on ex post facto laws.
Woodhull Freedom Foundation, a nonprofit organization based in Washington, DC. Founded in February, 2003, Woodhull is the only national human rights organization working full time toward affirming and protecting the fundamental human right to sexual freedom.
Human Rights Watch, a nonprofit organization based in New York, NY that monitors human rights conditions worldwide and advocates for the cessation and remediation of human rights violations worldwide. Since 2013, HRW has advocated for the decriminalization of sex work, and for respect for the human rights of sex workers around the world, including in the United States.
Eric Koszyk, a licensed massage therapist who lives in Portland, Oregon. He is the sole proprietor of Soothing Spirit Massage, a personal massage business he has run since 2007. He has used the online classified advertising platform Craigslist (www.craigslist.org) as the primary way of finding clients for Soothing Spirit Massage, but since the passage of FOSTA has been blocked from posting advertisements for his service.
Alex Andrews, the co-founder, organizer, and director of several organizations and a website dedicated to advocating for sex workers’ health, safety, and human rights who resides in Altamonte Springs, Florida. She is a co-founder of the website Rate That Rescue (www.ratethatrescue.org), which is a sex worker-led, public, free, community effort to help everyone share information about both the organizations they can rely on, and those they should avoid.
The Internet Archive, a nonprofit founded in 1996 to build an Internet library and to prevent online and other “born-digital” materials from disappearing into the past. The Archive collects and displays web materials on behalf of the Library of Congress, the National Archives, most state archives and libraries, as well as universities and other countries, with the vast majority in its collection being material authored by third parties.
The plaintiffs are represented by EFF, Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.