By Washington D.C. Criminal Defense Attorney David Benowitz of Price Benowitz LLP.
A law passed by Congress in April is aiming to combat online sex trafficking by increasing the ability of state and federal prosecutors to charge the owners of websites where trafficking occurs.
The bill, called FOSTA (and the Senate version called SESTA), changes the way in which the responsibility for content posted to websites can be imputed to the owner of the website. Prior to these changes, website owners were almost fully protected from being held responsible for the content posted on its site or servers.
Under the new law, website owners can be held responsible for content posted by others under several theories, but generally speaking, if the website assists, supports or facilitates the prostitution of individuals and does so knowingly, the owners of that site can face charges.
This change is designed to eliminate sites such as backpage.com, which was seized and shuttered after it was determined that it participated in prostitution by providing services to maximize advertising exposure and avoid prosecution, while also recruiting other providers of prostitution services.
“This law’s purpose is to reduce sex trafficking. But it also could create situations where an individual who operates a legitimate website may be charged for content posted on it,” said David Benowitz, a Washington, D.C. Sex Crimes Attorney and partner at Price Benowitz LLP.
Opinion on the changes to the law and the overall impact it will have is split.
Groups in support of it claim that legitimate websites were never in danger of being prosecuted before, and that these changes will not affect legitimate websites going forward, and that any additional responsibilities placed on websites is a small price to pay for the protection of individuals subject to exploitation.
Critics of the law claim that it will do nothing to actually stop sex trafficking — instead, it will send the individuals that participate even farther underground and make them more difficult to track.
Additionally, they claim that the law is already having an impact on legitimate websites by pointing to Craigslist shutting down its “Personals” section in order to avoid any possible issues.
Whether an individual is charged under this federal law or under state law depends upon many factors, including whether the communication took place across state lines. Doing so would place things within the purview of the federal government. But the law’s intent is not to impede or interfere with state investigations or charges in favor of federal ones.
Whether the law reduces sex trafficking remains to be seen, but it certainly creates a new area of liability for website owners that did not exist previously.