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

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.

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


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  1. icon
    AC Unknown (profile), 23 Jun 2021 @ 11:01am

    Not surprised at all

    Why am I not surprised that FOSTA didn't live up to what it was hyped to do?

    reply to this | link to this | view in thread ]

  2. icon
    That One Guy (profile), 23 Jun 2021 @ 11:11am

    It all depends on the metrics used...

    If you take the supporters of FOSTA at their word for what the bill was supposed to do it is worse than an absolute failure, as not only did it not accomplish it's goals it made things drastically worse for the very people that were being held up as 'victims in need of rescue!'

    On the other hand if you look at it as nothing more than a 'Look at what I've done!' PR stunt it worked out great, the people writing and supporting it got to brag about how they super-duper cared about people being exploited and sex trafficked and since the number of press outlets that are likely to call them out on this report could be counted on a single hand it's not like it cost anyone who matters anything, so it's a win-win from their perspective.

    reply to this | link to this | view in thread ]

  3. icon
    TheResidentSkeptic (profile), 23 Jun 2021 @ 11:49am

    If Only

    "effectiveness" was tied to "re-authorization" and "ineffective" was tied to repeal/revocation of the law.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 23 Jun 2021 @ 12:02pm

    any surprises with that then? as with 99% of things that have to be introduced into law, as soon as is humanly possible, in order to 'protect the children and the fucking entertainment industries', they are a load of worthless, pointless crap used by the introdcers to try to gain some 'brownie points'! problem, as we all know, is that once introduced, getting rid of all of the useless crap associated with the bill/law is almost impossible, even though no good comes from any of them!!

    reply to this | link to this | view in thread ]

  5. icon
    Toom1275 (profile), 23 Jun 2021 @ 12:29pm

    Re: Not surprised at all

    They're called "Do Something" laws. 100% about appearance, 0% about positive effect.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 23 Jun 2021 @ 1:07pm

    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?

    It's truly difficult for a politician to hear a competent argument over their own grandstanding, especially when they have their fingers in their ears screaming "LA LA LA LA I CAN'T HEAR YOU LA LA LA" as that gives them their cover.

    reply to this | link to this | view in thread ]

  7. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Jun 2021 @ 1:42pm

    Section 230 harms businesses and individuals (and those who deal with them, via misinformation) by making them defenseless against internet smear campaigns. Supporters of 230 consider their loss of reputation an "acceptable loss" such as happened with revenge porn (which never would have existed but for 230).

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 23 Jun 2021 @ 2:00pm

    Re: Every accusation is a confession bro

    “Revenge porn” aka blackmail is literally hundreds of years old.

    reply to this | link to this | view in thread ]

  9. This comment has been flagged by the community. Click here to show it
    icon
    Shel10 (profile), 23 Jun 2021 @ 2:20pm

    What Section 230 Does Not Protect

    Section 230 does not prevent operators of social media services from taking away 1st Amendment rights. These companies have used their section 230 protection to prevent from being sued for their actions. We all should know that section 230 was put into the Telecommunications Act of 1996 to protect a nascent internet service from being held liable for the actions of the service users.

    Just because these companies are private businesses, doesn't give them the right to abridge our rights granted by our Constitution. Only the US Congress and the state legislatures can change our Constitution.

    reply to this | link to this | view in thread ]

  10. icon
    That One Guy (profile), 23 Jun 2021 @ 2:25pm

    Re: What Section 230 Does Not Protect

    Just because these companies are private businesses, doesn't give them the right to abridge our rights granted by our Constitution.

    And when they actually do that you might have a point, but they don't so you don't.

    reply to this | link to this | view in thread ]

  11. icon
    Keroberos (profile), 23 Jun 2021 @ 3:11pm

    Re: What Section 230 Does Not Protect

    Umm...you do know that the 1st amendment only covers actions by state actors (the government) not private entities, right? So explain to us how a privately owned social media company can violate the 1st amendment. So yes a private company can remove your speech, the 1st amendment doesn't apply to them--you know that whole...

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    That's it, that's the 1st amendment. I don't see how you can twist some very clear wording to think that this applies anyone other than those it says it applies to--congress. Nowhere in there is any text saying that any private entity has to give you a place to speak.

    Social Media sites, like any other private property retain the right to throw you out for saying or doing things they don't like. Don't want to get thrown out--don't be an asshole. pretty simple rule.

    reply to this | link to this | view in thread ]

  12. icon
    JMT (profile), 23 Jun 2021 @ 3:20pm

    Re:

    "Section 230 harms businesses and individuals... by making them defenseless against internet smear campaigns."

    I'm sure you understand that S230 only applies to protected speech, so what you really mean is the First Amendment harms businesses and individuals by making them defenseless against internet smear campaigns. Maybe you should concentrate on getting that repealed instead...

    reply to this | link to this | view in thread ]

  13. icon
    JMT (profile), 23 Jun 2021 @ 3:21pm

    Re: What Section 230 Does Not Protect

    "Just because these companies are private businesses, doesn't give them the right to abridge our rights granted by our Constitution."

    It literally does.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 23 Jun 2021 @ 3:25pm

    When FOSTA passed, the pretenders who supported it did the obligatory rounds of congratulating themselves on Twitter and then forgot all about it as they moved on to the next "important" thing to grandstand over.

    It's good there is a scientific study to prove that those of us who think instead of emoting were (surprise surprise) right once again but it's not like anything's gonna be done about it now. That ship sailed, wrecked and rusted on the bottom of the sea and all there's left to say is "I told you so."

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 23 Jun 2021 @ 3:55pm

    Re: What Section 230 Does Not Protect

    Time for you to head back to remedial civics class pal.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 23 Jun 2021 @ 4:18pm

    Re:

    We've heard this a million times, and it is an inaccurate and bad faith argument.

    reply to this | link to this | view in thread ]

  17. icon
    That One Guy (profile), 23 Jun 2021 @ 4:24pm

    Can't abridge something that doesn't exist

    Well no because by and large private businesses can't do that, so 230 can no more grant them that power any more than it could grant them the power to strip people of their ability/'right' to fly by flapping their arms really fast.

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, 23 Jun 2021 @ 5:46pm

    Re: What Section 230 Does Not Protect

    Section 230 does not prevent operators of social media services from taking away 1st Amendment rights.

    Damn straight! Know who else it shouldn't prevent then? Porn filter operators. Hell, them and those 'kid friendly' filters base their entire business model on suppressing 1st Amendment rights.

    Tell you what, I'd entertain your idea if it came with disabling any kind of porn filter so parents will have to manually moderate what their spawn is allowed to see. Because why should an algorithm be allowed to moderate content?

    See how popular your bullshit is then.

    reply to this | link to this | view in thread ]

  19. icon
    Stephen T. Stone (profile), 23 Jun 2021 @ 6:12pm

    Hey, that was my line! Quit stealing my schtick, you one so-and-so… 🙃

    reply to this | link to this | view in thread ]

  20. icon
    That Anonymous Coward (profile), 23 Jun 2021 @ 7:02pm

    All the matters is the headlines & soundbites.
    The public has the memory of a goldfish & just assumes it is all fixed.

    Pity there is no one willing to make those who cheerleaded this pay a price for being so very wrong.
    Of course they still won't repeal it, it might let someone make a soundbite that they are pedophile lovers.

    So to protect themselves everyone has to keep suffering, even those they claim they helped.

    reply to this | link to this | view in thread ]

  21. icon
    Toom1275 (profile), 23 Jun 2021 @ 7:50pm

    Re: What Section 230 Does Not Protect

    Section 230 does not prevent operators of social media services from taking away 1st Amendment rights.

    Why ignore the fact that it's literally and legally impossible for them to do that in the slightest even if they wanted to?

    reply to this | link to this | view in thread ]

  22. icon
    Toom1275 (profile), 23 Jun 2021 @ 7:50pm

    Re:

    [Jhon Smith hallucinates facts not in reality or rationality]

    reply to this | link to this | view in thread ]

  23. identicon
    Bruce C., 24 Jun 2021 @ 1:49am

    Re: Re: What Section 230 Does Not Protect

    They can abridge your rights where their rights intersect and potentially conflict with yours. Other types of actions that abridge your rights like theft and harassment are illegal for them regardless of section 230.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 24 Jun 2021 @ 3:58am

    It's not just Backpage that might be affected by this sort of bad law.

    Craigslist pulled its entire "personal ad" section - even for communities which are not in the US - in response to FOSTA/SESTA.

    That includes non-commercial boy-meets-girl, girl-meets-girl, girl-meets-boy that has nothing to do with the seeming intended targets.

    reply to this | link to this | view in thread ]

  25. icon
    Scary Devil Monastery (profile), 24 Jun 2021 @ 5:57am

    Re: What Section 230 Does Not Protect

    "Section 230 does not prevent operators of social media services from taking away 1st Amendment rights. "

    1A says that congress may make no law abridging freedom of speech. Congress has made no such law. A private property owner has chosen to evict you for being an asshole. Entitled shitwit that you are you just seem to confuse this with government censorship.

    "Just because these companies are private businesses, doesn't give them the right to abridge our rights granted by our Constitution."

    And they're not. The US constitution in no way allows you to enter someones premises by force and call it "free speech". The fact that deplorable assholes like you get thrown out of bars and social platforms doesn't mean the guy throwing you out is violating your rights. Because you never had the right to invade someone's property just because there are people there you want to shout at.

    I realize to you assholes in Stormfront the difference may not be visible and that you may imagine the US constitution abolishes the concept of private property - but it doesn't.

    reply to this | link to this | view in thread ]

  26. icon
    Scary Devil Monastery (profile), 24 Jun 2021 @ 6:04am

    Re: Re: What Section 230 Does Not Protect

    "I don't see how you can twist some very clear wording to think that this applies anyone other than those it says it applies to--congress."

    Because Shel10, Restless94110 and Koby aren't here because they read the constitution. They're here to whine and bitch about how a private property owner throwing them out of a social forum for using the N-word is turning them into a repressed minority.

    In brief this is about the entitled snowflakes of the alt-right feeling butthurt that Facebook refuses to let them post the N-word and talk smack about gay people.

    They don't know what "free speech" is about in the first place and anyone trying to tell them what the constitution actually says must just be a plant of the satanic baby-eating cannibal cult operating out of Hillary's Pizza Parlor, trying to obfuscate the issue on behalf of the Kenyan Muslim so the mexican rapists can all storm the border and burn down Texas.

    Honestly I wouldn't be surprised to hear one of those clowns arguing that the actual copy of the US constitution was rewritten by those jewish space lasers just to fit the "liberal agenda"...

    reply to this | link to this | view in thread ]

  27. icon
    Scary Devil Monastery (profile), 24 Jun 2021 @ 6:17am

    Re: Re: What Section 230 Does Not Protect

    "Time for you to head back to remedial civics class pal."

    Shel10 - and his compatriot Restless94110 - have made it pretty clear that they aren't interested in civics. They just feel that the constitution surely gives them the right to waltz into some other persons property and start shouting about <insert ethnic slur here> without the property owner being able to evict them.

    These are the types of gormless lackwits who imagine that "free speech" means that the black man infringes on their right to make a political statement if he objects when they burn a cross on his lawn.

    reply to this | link to this | view in thread ]

  28. icon
    Mike Masnick (profile), 24 Jun 2021 @ 9:12am

    Re: What Section 230 Does Not Protect

    Section 230 does not prevent operators of social media services from taking away 1st Amendment rights.

    Lots of people have responded to you already, but just to be clear: this is garbage. Your 1st Amendment rights mean the government can't stop you from speaking -- NOT that everyone owes you their own property on which to speak. There is no "1st Amendment right" removed when YouTube says you're an asshole and we don't want you here.

    reply to this | link to this | view in thread ]

  29. icon
    That One Guy (profile), 24 Jun 2021 @ 9:34am

    Re:

    Sadly there's only so many ways to smack down the same stupid ideas for the two hundredth time so some overlap is bound to happen, and when a particular line perfectly encapsulates a counter argument it would be a shame not to use it.

    reply to this | link to this | view in thread ]

  30. icon
    Scary Devil Monastery (profile), 25 Jun 2021 @ 3:20am

    Re: Re: What Section 230 Does Not Protect

    "Lots of people have responded to you already, but just to be clear: this is garbage."

    And yet despite this being the sort of garbage obvious to even non-americans, all too many actual americans seem so sadly unaware of what their own constitution says you have to wonder how this could still be a talking point outside of an echo chamber populated by the deranged, the malicious, and the willfully blind.

    reply to this | link to this | view in thread ]


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