The Complicated Story of FOSTA and Section 230

Abstract

In 2018, Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), designed to attack the online promotion of sex trafficking victims, in part, by reducing Section 230’s scope. FOSTA represents new ground for Congress and the Internet; it peels back Section 230 to create some new legal exposure for online services for the first time in over two decades.

Unfortunately, FOSTA almost certainly will not accomplish Congress’ goals of protecting sex trafficking victims and reducing their victimization. This essay explains why Congress passed FOSTA, how FOSTA modified existing law, why FOSTA has little chance of succeeding, and what FOSTA signals about the future of Section 230 and the Internet.

Keywords: FOSTA, sex trafficking, prostitution, First Amendment, free speech, Section 230, CDA, Backpage

JEL Classification: K14, K42