Comparing FOSTA-SESTA and the DMCA

Comparing one Section 230 exception to another...

Craigslist LogoIf you follow tech news, you’ve likely heard that Craigslist has removed the personal ads feature from its site in anticipation of passage of a new anti-sex trafficking law.

They were joined by Reddit, which removed several Subreddits related to illegal or restricted activities. Though Reddit never said the move was inspired by the bill, focusing instead on a change to its content policy, the timing has many believing the two are connected.

But what is this bill that is having such significant impacts even before passage? It’s the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA).

The bill has been approved by both the House and the Senate and is now heading to the desk of President Trump, who is widely expected to sign it.

Though almost no one disagrees we can and should do more to fight sex trafficking, this law has become deeply controversial outside of Congress (where it passed easily). Free speech groups such as the Electronic Frontier Foundation call the bill an attempt to censor the internet and commentators across the political spectrum fear it may undermine the internet and do little to protect victims. Even the Department of Justice is concerned the law may be unconstitutional.

So why is this bill causing so much controversy? To understand that we have to look at what’s in the bill itself and how it will likely impact web hosts, including social media sites, video sharing platforms and, yes, dating websites.

The easiest way to do that is to compare it to another law that deals with an exemption to Section 230 of the Communications Decency Act (CDA), the Digital Millennium Copyright Act (DMCA).

The DMCA is a natural comparison not just because of who it impacts, but also because it’s a law many are broadly familiar with and one we have 20 years of experience with.

With that in mind, let’s begin with a refresher on the DMCA and the laws related to it.

(Note: The bill is actually the FOSTA-SESTA package as it combines the House’s FOSTA with the Senate’s Stop Enabling Sex Traffickers Act (SESTA). However, for simplicity, we’ll call it FOSTA.)

Recap of Section 230

Shield ImageTo understand the DMCA and FOSTA, we first have to understand Section 230 of the CDA.

Passed in 1996, Section 230 broadly says the following:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”

The basic idea is that, if you provide a platform for users, whether it’s a forum, a social media site or web host, you can not be treated as the speaker of publisher when your user violates a law.

While the primary focus of Section 230 has been defamation cases, it’s been used as a defense in a variety of cases including everything from housing discrimination to breach of contract. This defense holds valid even if you edit or moderate the content (as long as you don’t change the meaning) and is regardless of whether you have a public terms of service.

That being said, there are limitations to Section 230, the biggest two federal criminal law and intellectual property law (including copyright).

That intellectual property exemption is where the DMCA steps in. While Section 230 doesn’t protect you from liability for users uploading copyright infringing material, the DMCA does. However, with the DMCA, the rules are a bit different.

Recap of the DMCA Safe Harbor Provisions

Safe HarborWhere Section 230 is a blanket protection that requires no action from the host or online service provider, the DMCA asks for a bit more.

Under the DMCA, hosts get the same freedom from liability (safe harbor) but, in exchange, they have to work to “expeditiously” remove allegedly infringing material after receiving notifications of copyright copyright infringement.

This is through a “notice and takedown process” where a copyright holder notifies the host of the infringement and the host removes or disables access to it. The user, if they wish to contest the notice, can file a counter-notice and, after 10 business days, the content can be restored (though restoration isn’t guaranteed).

While the law is controversial with some saying it is too easily misused for censorship and others concerned it leads to a game of piracy Whac-A-Mole, for service providers it offers a great deal of clarity. Do these things and follow these guidelines you can enjoy safe harbor protection.

In short, while the DMCA does require hosts to take additional steps, it doesn’t drastically reduce clarity. That, however, does not appear to be the case for FOSTA.

Understanding FOSTA

Backpage LogoFOSTA has its origins in one site:

Backpage was an online classifieds sites that specialized in advertisements for adult services. However, in addition to the advertisements for consensual sex workers, the site also contained ads pertaining to children and women forced into prostitution.

Though victims and their families brought repeated lawsuits against Backpage, the site was always able to shield itself with Section 230. However, evidence has grown that Backpage wasn’t just a neutral web host but was actively involved in the ads. That has resulted in the site’s owners becoming the subject of a grand jury investigation in Arizona.

But even though the site’s operators will still likely face some repercussions, Congress wanted to amend Section 230 to make it possible for sites to be held both criminally and civilly liable for “knowingly assisting, supporting or facilitating” the “prostitution of another person.”

To make the matters more worrisome for sites, the law will be retroactive, applying to violations of it that took place before its passage.

So, where does this leave FOSTA and how does it compare to the DMCA? The answer should be pretty clear.

Comparing FOSTA and the DMCA

Though Congress is presenting FOSTA as a clarification of Section 230, there’s not much doubt that, when contrasted with recent case law, it does introduce new liability for hosts. In that regard, it’s not much different from the DMCA, an exception to Section 230 that may introduce otherwise non-existent liability.

However, the DMCA provides a clear (and relatively non-burdensome) path to avoiding that liability. The notice and takedown process not only lists the steps hosts have to take, but the requirements of a DMCA notice, the requirements of a counter-notice and so forth.

But even with that level of detail and 20 years of case history, there are still areas of vagueness. Take, for example, a recent appeals court ruling that moderators can, under certain circumstances, be considered employees and cause a site to lose safe harbor protection.

But for all of the gray areas of the DMCA, FOSTA is far less detailed. Terms such as assisting, supporting or facilitating aren’t well defined in the law and much of it is being left to interpretation.

Though many of the nightmare scenarios being presented, such as a spam blog comment opening a site up to liability, are likely hyperbole, there are significant questions as to what does constutite “facilitation” or “assisting” prostitution of another.

Whether you agree with the DMCA or not, it worked hard to give online service providers the clearest path to safe harbor it could. With FOSTA, there is significant gray area and, even if it isn’t as large as many make it appear, it is still significant and may impact sites and services that strive to keep sex workers safe.

An online service provider, regardless of the content they host, reasonably knows how to avoid liability under the DMCA. The same can’t be said for many providers under FOSTA.

That, in turn, is why Craigslist did away with its personal ads. Not because it was 100% sure they were in violation of the law, but because of the uncertainty. For Craigslist, that risk was simply too high and the same will likely be said for more sites if FOSTA is signed into law.

Bottom Line

I doubt many will disagree that sex trafficking is horrible and that we should do everything we can to stop it. However, legislation targeted at one or two bad actors rarely makes for good law.

If knowingly and deliberately profited from ads connected to sex trafficking, then they should absolutely be held accountable. As should anyone who does similar.

But punching holes in online liability protections without providing a clearly-thought path to safe harbor harms everyone. It may make sex workers less safe, it can harms legitimate websites who operate in adjacent spaces and still do little to actually stop human trafficking.

If the law is signed (which seems likely) it will almost certainly face challenges in court. Given the DOJ’s stance on the bill, it seems likely those challenges have at least a fair chance of succeeding.

Still, this bill is a great lesson on just how difficult it is to legislate the internet. While stopping sex trafficking is a noble cause we can all get behind, finding a way to do it effectively while preserving online freedoms is a great challenge.

I don’t envy Congress in this task, but it is clear that it needs to do better.

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