March 19, 2018 2:28PM

Wyden’s FOSTA Fix

The Fight Online Sex Trafficking Act (FOSTA), an anti‐​sex trafficking bill with grave implications for an open internet, has passed in the House and will likely receive a Senate vote later this week. Senator Ron Wyden has proposed an amendment that would blunt the worst of its harms.

At present, FOSTA holds hosts of user‐​generated content liable for “knowingly assisting, supporting, or facilitating” prostitution or the promotion thereof. Attempts to police illegal content posted on a platform could render moderators aware of its existence. If they do not eliminate all of it, they could find themselves for legal purposes “knowingly facilitating” whatever illegal activity continues. This standard might criminalize good‐​faith moderation efforts and foster removing innocent content along with the guilty.

Wyden’s well‐​crafted amendment reduces the risk of removing, by explicitly distinguishing moderation from facilitating criminal activity.

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove material the provider or user considers objectionable shall not be considered in determining the criminal or civil liability of the provider or user for any material that the provider or user has not removed or restricted access to.

This bill raises other issues. FOSTA might give established tech companies an unwarranted advantage in the future by imposing previously unknown moderation and legal compliance costs on their upstart competitors. On this point Wyden’s amendment says its protections are not contingent upon a service provider’s decision to moderate, or to use any “particular content moderation practices,” thereby preventing a passing understanding of “best practices” from crowding out other forms of moderation. 

Wyden’s amendment falls in line with the Department of Justice recommendation concerning FOSTA, which states that “the Department believes that any revision to 18 U.S.C § 1591 to define ‘participation in a venture’ is unnecessary” and would create additional barriers to the successful prosecution of actual sex traffickers. FOSTA’s expansion of grounds for criminal or civil action also increases the number of facts which prosecutors must prove in court, facilitating punitive fishing expeditions and frivolous lawsuits without making it any easier to put traffickers behind bars.

Senator Wyden’s amendment would go a long way toward reducing the risk FOSTA currently poses to an open internet.