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 combined a House bill of the same name with provisions from a Senate bill, the Stop Enabling Sex Traffickers Act (SESTA).[1] FOSTA as passed makes changes to three federal statutory schemes: the Communications Decency Act (Section 230), the Trafficking Victims Protection Act (TVPA), and the Mann Act. Members of Congress claimed FOSTA would fix loopholes in those statutory schemes through which they believed websites such as Backpage.com had avoided liability for sex trafficking. This Article analyzes the legal reality of FOSTA, fully exploring its changes to the Mann Act and the TVPA in context along with the more broadly discussed changes to Section 230. When contextualized, the changes to 230 are far less broad than initially reported, with a strict textual reading of the amendments resulting in relatively little change to immunity in most circumstances.  The new criminal provisions, on the other hand, have the potential to criminalize vast amounts of speech and advocacy. This Article is the first piece to comprehensively analyze the scope of all of these various components of the law