New H.R. 1865 Sex Trafficking Amendment Would Make Websites Liable For User Comments, Content
HR 1865 FOSTA Censorship

Some anti-censorship advocates are drumming up awareness for what they claim will be a chilling effect on free speech across all online websites that facilitate user generated comments.

The Electronic Frontier Foundation is reporting that the Fight Online Sex Trafficking Act, also known as FOSTA, is being pushed through Congress under bill H.R. 1865. The amendment for the bill was introduced last year back in April of 2017, but gained traction over the last year so much so that more than 170 Congressional incumbents sponsored the bill as of February 20th, 2018.

According to the website, it still hasn’t been passed through legislation yet, but the amendment has some alarming passages about modifying the original Communications Act of 1934 to clarify section 230, which would prohibit enforcement and enact liability against service providers for content made or distributed through the platform(s) by users.

Basically it would absolve indemnity for website owners when it comes to their comment sections or communications made by users. In plain English, section 2.1 through 2.3 explains what the amendment would do…

“[…] section 230 of the Communications Act of 1934 (47 U.S.C. 230; commonly known as the “Communications Decency Act of 1996”) was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and contribute to sex trafficking;


“websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion; and


“clarification of such section is warranted to ensure that such section does not provide such protection to such websites.”

Liability placed on website owners based on what commenters publish or share could easily bankrupt or shutdown plenty of free speech online web portals, especially given that mandatory restitution would fall on the shoulders of the service provider, along with civil recovery.

Once again, in plain English under section § 2421A (c), the amendment puts the burden on the defendant, otherwise known as the service provider, to police content and ensure that their website can’t be used in anyway to peddle prostitution lest they pay the price with fines and up to 20 years in prison…

“[…] a defendant may be held liable, under this subsection, where promotion or facilitation of prostitution activity includes responsibility for the creation or development of all or part of the information or content provided through any interactive computer service.”

The EFF believes that this will create a chilling effect, and that larger companies like Google and Facebook will be able to easily waive off the legal yoke, but other smaller outlets would be far less fortunate. Others believe that it could put some free speech platforms at risk via false flagging, which is a tactic some trolls use to get people in trouble or create alarmist reactions based on false emergencies.

For example, if someone decided to use and post false exchanges of prostitution solicitation of young kids and then contacted the FBI about it – would be liable for those comments and could be severely penalized. They would either have to strongly censor certain kinds of exchanges or limit the type of speech that’s used.

The EFF believes this would do more harm to sex trafficking victims than help, as censorship through filters could end up filtering and censoring the voices of those who need help the most.

It sets a dangerous precedent if the amendment for the bill passes through the House. The EFF has been attempting to rally people against FOSTA in an effort to prevent it from being amended to section 230 of the Communications Act of 1934.


Billy has been rustling Jimmies for years covering video games, technology and digital trends within the electronics entertainment space. The GJP cried and their tears became his milkshake. Need to get in touch? Try the Contact Page.

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