EFF sues to kill FOSTA, calling it “unconstitutional Internet censorship law”
Sex work law prohibits speech that’s protected by First Amendment, lawsuit says.
By JON BRODKIN
Jun 29 2018
https://arstechnica.com/tech-policy/2018/06/anti-sex-trafficking-law-illegally-censors-internet-lawsuit-says/
The Electronic Frontier Foundation has asked a court to invalidate a new anti-prostitution law, saying that it amounts to unconstitutional censorship of the Internet.
The Fight Online Sex Trafficking Act (FOSTA) was approved by Congress and signedby President Trump in April. Websites responded to the new law by shutting down sex-work forums, potentially endangering sex workers who used the sites to screen clients and avoid dangerous situations.
The EFF filed the lawsuit in US District Court for the District of Columbia on behalf of several plaintiffs.
“In our lawsuit, two human rights organizations, an individual advocate for sex workers, a certified non-sexual massage therapist, and the Internet Archive, are challenging the law as an unconstitutional violation of the First and Fifth Amendments,” EFF Civil Liberties Director David Greene wrote. “Although the law was passed by Congress for the worthy purpose of fighting sex trafficking, its broad language makes criminals of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims.”
Law conflates trafficking with all sex work
Despite Congress’s stated purpose of stopping sex trafficking, FOSTA barely distinguishes between trafficking and consensual sex work.
While Section 230 of the 1996 Communications Decency Act provides website operators with broad immunity for hosting third-party content, FOSTA eliminates that immunity for content that promotes or facilitates prostitution. Operators of websites that let sex workers interact with clients could thus face 25 years in prison under the new law.
FOSTA “is the most comprehensive censorship of Internet speech in America in the last 20 years,” Greene said.
The complaint asks the court to declare that FOSTA is unconstitutional and to permanently enjoin the US from enforcing it. The lawsuit argues:
The law erroneously conflates all sex work with trafficking. By employing expansive and undefined terms to regulate online speech, backed by the threat of heavy criminal penalties and civil liability, FOSTA casts a pall over any online communication with even remote connections to sexual relations. It has impeded efforts to prevent trafficking and rescue victims, and has only made all forms of sex work more dangerous. FOSTA has undermined protections for online freedom of expression, contrary to the near unanimity of judicial decisions over the past two decades.
The speech of sex worker advocates is being inhibited “even though they do not advocate for, and indeed are firmly opposed to, sex trafficking,” the lawsuit said. FOSTA “prohibits a substantial amount of protected expression” by making it a crime to operate an “interactive computer service” with the intent to “promote” or “facilitate” prostitution, the lawsuit said.
FOSTA places no real limits on “what might constitute promotion or facilitation of prostitution or trafficking,” violating a precedent that the government must regulate speech “only with narrow specificity,” the lawsuit said. If the government can achieve its interests in a way that doesn’t restrict speech “or that restricts less speech,” it is required to do so, the lawsuit said.