As Everyone Rushes To Change Section 230, New GAO Report Points Out That FOSTA Hasn't Lived Up To Any Of Its Promises

Legal Issues

from the garbage-in,-garbage-out dept

As you may have heard, tons of politicians are rushing to introduce new and different bills to undermine or repeal Section 230 of the Communications Decency Act — a bill that is rightly credited for enabling a more open internet for freedom of speech. As you may recall, in early 2018 we had the first actual reform to Section 230 in decades — FOSTA. It was signed into law on April 11th, with tons of politicians insisting it was critical to protecting people online. We had so many quotes from politicians (and a whole campaign from Hollywood stars like Amy Schumer) claiming (falsely) that without FOSTA, children could be “bought and sold” online.

One thing the bill did include (in Section 8) was a requirement that 3 years after the bill passed, the GAO should put out a report on how effective it has been. It’s a few months late (the GAO does excellent work, but tends to be overworked and under-resourced) but on Monday the GAO finally released its study on the effectiveness of FOSTA. And… it basically says that all of the critics claims were exactly right.

Before FOSTA became law, co-author of Section 230, Senator Ron Wyden warned:

I fear that the legislation before the Senate will be another failure. I fear it will do more to take down ads than take down traffickers. I fear it will send the bad guys beyond the grasp of law enforcement to the shadowy corners of the dark web, where everyday search engines don?t go, but where criminals find safe haven for their monstrous acts….

[….]

In my view, the legislation before the Senate will prove to be ineffective, it will have harmful unintended consequences, and it could be ruled unconstitutional.

[….]

But the bill before us today will not stop sex trafficking. It will not prevent young people from becoming victims…..

So, now that we’re three years in, what has the GAO found? That, just as predicted, the law was not at all necessary, and has barely been used, and the very, very few times it’s been used in court, it’s been ineffective:

Criminal restitution has not been sought and civil damages have not been awarded under section 3 of FOSTA. In June 2020, DOJ brought one case under the criminal provision established by section 3 of FOSTA for aggravated violations involving the promotion of prostitution of five or more people or acting in reckless disregard of sex trafficking. As of March 2021, restitution had not been sought or awarded. According to DOJ officials, prosecutors have not brought more cases with charges under section 3 of FOSTA because the law is relatively new and prosecutors have had success using other criminal statutes. Finally, in November 2020 one individual sought civil damages under a number of constitutional and statutory provisions, including section 3 of FOSTA. However, in March 2021, the court dismissed the case without awarding damages after it had granted defendants’ motions to dismiss.

So… why did we need it again? Why was it so urgent? Why were Senators, Members of Congress, Hollywood stars, and others practically shoving each other aside to say that we needed this yesterday? And now, it’s barely been used?

The report also shows — again as many of us predicted — that post FOSTA, law enforcement has had more difficulty tracking down those engaged in sex trafficking. Not because there is less trafficking, but because they’re harder for law enforcement to find or access the details:

The current landscape of the online commercial sex market heightens already-existing challenges law enforcement face in gathering tips and evidence. Specifically, gathering tips and evidence to investigate and prosecute those who control or use online platforms has become more difficult due to the relocation of platforms overseas; platforms? use of complex payment systems; and the increased use of social media, dating, hookup, and messaging/communication platforms.

The relocation of platforms overseas makes it more difficult for law enforcement to gather tips and evidence. According to DOJ officials, successfully prosecuting those who control online platforms?whether their platforms are located domestically or abroad?requires gathering enough evidence to prove that they intended that their platforms be used to promote prostitution, and, in some cases, that they also acted in reckless disregard of the fact that their actions contributed to sex trafficking.

Of course, in the runup to passing FOSTA, everyone kept talking about Backpage — that FOSTA was needed to takedown Backpage, the company that everyone insisted was terrible. Except… as everyone now knows, the DOJ took down Backpage without FOSTA. Perhaps, the real issue had nothing to do with the law itself, and plenty to do with the DOJ not doing much on this issue. Or, worse, the DOJ recognizing that maybe Backpage wasn’t the evil bogeyman that politicians and the press were making it out to be.

After all, leaked government documents later showed that Backpage was actually working closely with law enforcement to track down traffickers. So, guess what the report has found now? Thanks to FOSTA and also to the takedown of Backpage, the FBI is now finding it really really difficult to actually track down traffickers:

According to a 2019 FBI document, the FBI?s ability to identify and locate sex trafficking victims and perpetrators was significantly decreased following the takedown of backpage.com. According to FBI officials, this is largely because law enforcement was familiar with backpage.com, and backpage.com was generally responsive to legal requests for information. In contrast, officials said, law enforcement may be less familiar with platforms located overseas. Further, obtaining evidence from entities overseas may be more cumbersome and time-intensive, as those who control such platforms may not voluntarily respond to legal process, and mutual legal assistance requests may take months, if not years, according to DOJ officials.

So… end result: the government is barely using FOSTA and it’s now significantly more difficult to find sex traffickers.

And, of course, the report doesn’t even touch on the fact that things FOSTA did do to harm sex workers, putting them more at risk. It also doesn’t talk about how lots of legitimate sites, such as dating sites and Tumblr, started aggressively blocking content that was likely perfectly legal, out of fear that FOSTA would open them up to criminal liability.

So, here’s the big question: as a ton of politicians are pushing for big massive changes to Section 230, will they listen to us this time when we warn them about the possible consequences of such changes? Or will they dismiss us and insist that we’re lying like they did last time? And who will go ask the politicians and Hollywood stars who swore that FOSTA was so absolutely necessary, how they respond to the fact that it didn’t work, isn’t being used, has made it more difficult to stop actual trafficking and has put actual lives in danger? Because all of that seems kind of important.

Filed Under: fosta, gao, intermediary liability, law enforcement, section 230, sex trafficking