FOSTA in Legal Context

87 Pages Posted: 11 Sep 2020

See all articles by Kendra Albert

Kendra Albert

Harvard Law School

Emily Armbruster

affiliation not provided to SSRN

Elizabeth Brundige

Cornell University - Law School

Elizabeth Denning

affiliation not provided to SSRN

Kimberly Kim

affiliation not provided to SSRN

Lorelei Lee

affiliation not provided to SSRN

Lindsey Ruff

affiliation not provided to SSRN

Korica Simon

Cornell University - Law School

Yueyu Yang

affiliation not provided to SSRN

Date Written: July 30, 2020

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

Suggested Citation

Albert, Kendra and Armbruster, Emily and Brundige, Elizabeth and Denning, Elizabeth and Kim, Kimberly and Lee, Lorelei and Ruff, Lindsey and Simon, Korica and Yang, Yueyu, FOSTA in Legal Context (July 30, 2020). Available at SSRN: https://ssrn.com/abstract=3663898 or http://dx.doi.org/10.2139/ssrn.3663898

Kendra Albert (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Ave
Cambridge, MA 02138
United States

Emily Armbruster

affiliation not provided to SSRN

Elizabeth Brundige

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
(607) 254-4768 (Phone)

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio_elizabeth_brundige.cfm

Elizabeth Denning

affiliation not provided to SSRN

Kimberly Kim

affiliation not provided to SSRN

Lorelei Lee

affiliation not provided to SSRN

Lindsey Ruff

affiliation not provided to SSRN

Korica Simon

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Yueyu Yang

affiliation not provided to SSRN

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