FOSTA in Legal Context

Abstract

In the spring of 2018, Congress passed the Allow States and Victims to Fight Online Trafficking Act of 2017 (FOSTA), which made changes to three federal statutory schemes: the Communications Decency Act, the Trafficking Victims Protection Act, and the Mann Act. Congressmembers claimed FOSTA would fix loopholes in those statutory schemes through which they believed websites such as Backpage.com had avoided liability for sex trafficking.

More than two years after its passage, only one prosecution has been brought under the new criminal provision, and FOSTA’s 230 exemptions have received very limited use. These provisions have, however, had widespread effects on internet companies. In this article, we put FOSTA into its legal context, exploring how its provisions relate to existing federal anti-prostitution and anti-trafficking laws. We highlight how the impact of FOSTA has been disconnected from the actual content of the legal changes, how statutory language creates broad areas of uncertainty, and how the law may be interpreted to reduce harm to sex working peoples.

Keywords: FOSTA, intermediary liability, sex work, sex trafficking, prostitution