FOSTA US Internet Censorship Law

It was a dark day for the Internet.

The U.S. Senate just voted 97-2 to pass the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), a bill that silences online speech by forcing Internet platforms to censor their users. As lobbyists and members of Congress applaud themselves for enacting a law tackling the problem of trafficking, let's be clear: Congress just made trafficking victims less safe, not more.

The version of FOSTA that just passed the Senate combined an earlier version of FOSTA (what we call FOSTA 2.0) with the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). The history of SESTA/FOSTA -- a bad bill that turned into a worse bill and then was rushed through votes in both houses of Congress2 -- is a story about Congress' failure to see that its good intentions can result in bad law. It's a story of Congress' failure to listen to the constituents who'd be most affected by the laws it passed. It's also the story of some players in the tech sector choosing to settle for compromises and half-wins that will put ordinary people in danger. Silencing Internet Users Doesn't Make Us Safer

SESTA/FOSTA undermines Section 230, the most important law protecting free speech online. Section 230 protects online platforms from liability for some types of speech by their users. Without Section 230, the Internet would look very different. It's likely that many of today's online platforms would never have formed or received the investment they needed to grow and scale204the risk of litigation would have simply been too high. Similarly, in absence of Section 230 protections, noncommercial platforms like Wikipedia and the Internet Archive likely wouldn't have been founded given the high level of legal risk involved with hosting third-party content.

The bill is worded so broadly that it could even be used against platform owners that don't know that their sites are being used for trafficking.

Importantly, Section 230 does not shield platforms from liability under federal criminal law. Section 230 also doesn't shield platforms across-the-board from liability under civil law: courts have allowed civil claims against online platforms when a platform directly contributed to unlawful speech. Section 230 strikes a careful balance between enabling the pursuit of justice and promoting free speech and innovation online: platforms can be held responsible for their own actions, and can still host user-generated content without fear of broad legal liability.

SESTA/FOSTA upends that balance, opening platforms to new criminal and civil liability at the state and federal levels for their users' sex trafficking activities. The platform liability created by new Section 230 carve outs applies retroactively -- meaning the increased liability applies to trafficking that took place before the law passed. The Department of Justice has raised concerns about this violating the Constitution's Ex Post Facto Clause, at least for the criminal provisions.

The bill also expands existing federal criminal law to target online platforms where sex trafficking content appears. The bill is worded so broadly that it could even be used against platform owners that don't know that their sites are being used for trafficking.

Finally, SESTA/FOSTA expands federal prostitution law to cover those who use the Internet to promote or facilitate prostitution.  The Internet will become a less inclusive place, something that hurts all of us.

And if you had glossed over a little at the legal details, perhaps a few examples of the immediate censorship impact of the new law

Immediate Chilling Effect on Adult Content

See  article from xbiz.com

SESTA's passage by the U.S. Senate has had an immediate chilling effect on those working in the adult industry.

Today, stories of a fallout are being heard, with adult performers finding their content being flagged and blocked, an escort site that has suddenly becoming not available, Craigslist shutting down its personals sections and Reddit closing down some of its communities, among other tales.

SESTA, which doesn't differentiate between sex trafficking and consensual sex work, targets scores of adult sites that consensual sex workers use to advertise their work.

And now, before SESTA reaches President Trump's desk for his guaranteed signature, those sites are scrambling to prevent themselves from being charged under sex trafficking laws.

It's not surprising that we're seeing an immediate chilling effect on protected speech, industry attorney Lawrence Walters told XBIZ. This was predicted as the likely impact of the bill, as online intermediaries over-censor content in the attempt to mitigate their own risks. The damage to the First Amendment appears palpable.

• Today, longtime city-by-city escort service website, CityVibe.com, completely disappeared, only to be replaced with a message, Sorry, this website is not available.

• Tonight, mainstream classified site Craigslist, which serves more than 20 billion page views per month, said that it has dropped personals listings in the U.S.

• Motherboard reported today that at least six porn performers have complained that files have been blocked without warning from Google's cloud storage service. It seems like all of our videos in Google Drive are getting flagged by some sort of automated system, adult star Lilly Stone told Motherboard. We're not even really getting notified of it, the only way we really found out was one of our customers told us he couldn't view or download the video we sent him.

• Another adult star, Avey Moon was trying to send the winner of her Chaturbate contest his prize -- a video titled POV Blowjob -- through her Google Drive account, but it wouldn't send.

• Reddit made an announcement late yesterday explaining that the site has changed its content policy, forbidding transactions for certain goods and services that include physical sexual contact. A number of subreddits regularly used to help sex workers have been completedly banned. Those include r/Escorts , r/MaleEscorts and r/SugarDaddy .

The US has just passed an internet censorship bill, FOSTA, that holds internet companies responsible if users use their services to facilitate sex trafficking. It sounds a laudable aim on paper, but in reality how can say Microsoft actually prevent users from using communication or storage services to support trafficking?

Well the answer is there is no real way to distinguish say adverts for legal sex workers from those for illegal sex workers. So the only answer for internet companies is to censor and ban ALL communications that could possibly be related to sex.

So there have been several responses from internet companies along these lines. Small ad company Craigslist has just taken down ALL personal ads just in case sex traffickers may be lurking there. A Craigslist spokesperson explained:

Any tool or service can be misused. We can't take such risk without jeopardizing all our other services.

Last week, several online porn performers who use Google Drive to store and distribute their adult content files reported that the service had suddenly and without warning blocked or deleted their files, posing a threat to their income streams.

And now it seems that Microsoft is following suit for users of its internet services in the USA. Microsoft has now banned offensive language, as well as nudity and porn, from any of its services -- which include Microsoft Office, XBox and even Skype.

The broad new ban was quietly inserted into Microsoft's new Terms of Service agreement, which was posted on March 1 and which takes effect on May 1 . The new rules also give Microsoft the legal ability to review private user content and block or delete anything, including email, that contains offensive content or language.  The rules do not define exactly what would constitute offensive language.

In theory, the new ban could let Microsoft monitor, for example, private Skype chats, shutting down calls in which either participant is nude or engaged in sexual conduct.

So wait a sec: I can't use Skype to have an adult video call with my girlfriend? I can't use OneDrive to back up a document that says 'fuck' in it? asked civil liberties advocate Jonathan Corbett, in a blog post this week. If I call someone a mean name in Xbox Live, not only will they cancel my account, but also confiscate any funds I've deposited in my account?

denofgeek.com answers some of these queries:

Seemingly aware of the tentative nature of this policy, Microsoft included a couple of disclaimers. First off, the company notes that it cannot monitor the entire Services and will make no attempt to do so. That suggests that Microsoft is not implementing live monitoring. However, it can access stored and shared content when looking into alleged violations. This indicates that part of this policy will work off of a user report system.

Microsoft also states that it can remove or refuse to publish content for any reason and reserves the right to block delivery of a communication across services attached to this content policy. Additionally, the punishments for breaking this code of conduct now include the forfeiture of content licenses as well as Microsoft account balances associated with the account. That means that the company could theoretically remove games from your console or seize money in your Microsoft account.

As the sun sets on online freedoms, sex workers of all kinds are quietly and swiftly being silenced on social media. Rightfully they're fed up, and are fighting back with a new website Switter, a play on 'sex workers' and 'Twitter', which is an alternative social network that's created by, and for, sex workers.

Switter's creation was initially in response to sites like Twitter, where those in the sex industry have been finding themselves "shadow banned", ie banned by the internet company acting on its own motivations rather than banned by the laws of the land.

Sex workers have always been more or less banned by Facebook but since the new Sosta law, major companies are setting out to censor all sex content as th emores practical or cost effective way of addressing the Sosta requirement to censor sex trafficking content.

Even Skype, the platform that many independent sex workers use to run their private shows, has specified in their latest Code of Conduct that the services not be used for "inappropriate content or material" like "nudity" and "pornography."

The new social network obviously can't be US based so the mantle has fallen to an Australian company, Assembly Four. The software is based on the open source Mastodon and does not have any built-in tracking, doesn't enforce real name policies, and doesn't' ask for any personal information for profiles.

Its early days yet, but the fledging social network says it already has about 8,000 members.

The US has passed laws FOSTA/SESTA that make internet websites responsible for any user content related to sex trafficking. Websites can't distinguish sex trafficking from adult consensual sex work information so have respponded in the only way they can be banning all sex work related content, just in case.

• Cityvibe shut down completely,
• the Erotic Review, the Yelp of the sex trade where men rate their experiences with sex workers, shut down advertisement boards in the United States,
• NightShift shut down to review policies,
• VerifyHim shut down its newsreel,
• Craigslist personals section was shut down,
• Reddit's prostitution-related subreddits were marked private and the site instituted new policies banning the sale of sex acts and drugs,
• Google reportedly deleted its publicly shared commercial sex-related advertising,
• WordPress.com reportedly removed its commercial sex-related advertising sites,
• Paypal reportedly disabled advertised accounts for commercial sex-related payment,
• Rubmaps, Erotic Monkey, and USA Sex Guide had extended maintenance periods over the weekend, suggesting upcoming changes due to the new law,
• Microsoft is issuing new Terms of Service effective May 1st covering all of its platforms, including Skype and Xbox, to urge users not to use the services to share pornography or criminal activity.

The sex trafficking sites Cityxguide and Backpage were reportedly seeing a surge in use by sex workers as the other sites shut down.

Perhaps there's an opportunity for European companies to get a look in and offer replacement services to the US.

The US authorities have taken control of a classified adverts website used by sex workers to advertise their services.

A notice was posted on Backpage.com's various international front pages late last week to inform visitors.

The site had previously shut down the adult section of its US site, but critics had alleged that prostitution ads had simply moved to other pages.

The authorities claim that some of the adverts were for trafficked sex workers, but such claims are generally hyped up by those campaigning to prohibit adult consensual sex work and rarely amount to any more than a few cases when properly investigated.

The US media has also reported that Backpage's co-founder Michael Lacey was arrested last week and his home raided.

The Californian authorities had previously attempted to close Dallas-based Backpage.com in 2016, when the state prosecuted the business's chief executive and two ex-owners - including Mr Lacey - over claims they had committed pimping offences and generated millions of dollars by hosting sex trade ads. However, the case was dismissed on the grounds that the US's Communications Decency Act said that publishers should not be held responsible for content created solely by their users.

But last month, Congress passed a new law, the Allow States and Victims to Fight Online Sex Trafficking Act (Fosta). It states that websites that facilitate traffickers in advertising the sale of unlawful sex acts should no longer be granted the same protection.

It has been reported that President Trump will sign a Senate-approved version of the act into law this week.

A US federal appeals court has upheld key portions of a federal internet censorship law Congress passed to supposedly combat sex trafficking, but in reality censors all aspects of consensual adult sex work. However the court did reject some broad readings of the statute that censor even debate about prostitution.

Advocates for legalizing prostitution, the operators of the Internet Archive website, Human Rights Watch and a massage therapist who said he lost business when Craigslist pulled many categories of ads after passage of FOSTA in 2018 sued to block enforcement of the law.

The D.C. Circuit Court of Appeals ruled that language in the 2018 Fight Online Sex Trafficking Act -- better known as FOSTA -- is not unconstitutionally vague and doesn't violate free-speech rights.

However, the court did slightly restrict the reach of the censorship, saying:

We therefore hold that [FOSTA's] mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution. Instead, it reaches a person's intent to aid or abet the prostitution of another person.

Judge Millett conceded that the language of the law could be seen as encompassing all sorts of conduct that arguably promotes or encourages prostitution. But she said the more limited reading was justified in this instance.She said:

Undoubtedly, the term 'facilitate' could be read more broadly. But nothing in [FOSTA] compels us to read 'facilitate' that way. Doubly so when a more expansive reading could raise grave constitutional concerns.