The Electronic Frontier Foundation (EFF) has spoken out against the proposed Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA).
FOSTA would undermine Section 230, the law protecting online platforms from some types of liability for their users’ speech. As we’ve explained before, the modern Internet is only possible thanks to a strong Section 230. Without Section 230, most of the online platforms we use would never have been formed—the risk of liability for their users’ actions would have simply been too high.
Section 230 strikes an important balance for when online platforms can be held liable for their users’ speech. Contrary to FOSTA supporters’ claims, Section 230 does nothing to protect platforms that break federal criminal law. In particular, if an Internet company knowingly engages in the advertising of sex trafficking, the U.S. Department of Justice can and should prosecute it. Additionally, Internet companies are not immune from civil liability for user-generated content if plaintiffs can show that a company had a direct hand in creating the illegal content.
The new version of FOSTA would destroy that careful balance, opening platforms to increased criminal and civil liability at both the federal and state levels. This includes a new federal sex trafficking crime targeted at web platforms (in addition to 18 U.S.C. § 1591)—but which would not require a platform to have knowledge that people are using it for sex trafficking purposes. This also includes exceptions to Section 230 for state law criminal prosecutions against online platforms, as well as civil claims under federal law and civil enforcement of federal law by state attorneys general.
Perhaps most disturbingly, the new version of FOSTA would make the changes to Section 230 apply retroactively: a platform could be prosecuted for failing to comply with the law before it was even passed.
There’s more at the link.
On the face of it, those objections seem reasonable. I’m certainly in favor of preserving civil liberties at almost any cost; the Bill of Rights was hard-won at the start of this country, and I’ll do my darnedest to preserve it against those who would undermine it.
Making a law retroactive is a clear-cut violation of civil rights before any other consideration, so I’m completely opposed to that element of FOSTA’s provisions. The problem is, the EFF’s overall argument and approach focuses on only one side of the coin. The sexual abuse of children is an enormous problem. I’ve encountered its perpetrators behind bars on far too many occasions for comfort, and sometimes in the “real world” as well, including one incident in my own childhood (thankfully, interrupted before anything major could occur). In seeking to protect civil and electronic liberties at all costs, the EFF’s approach may end up neutering – or at least significantly watering down – measures that are vitally important to protect children against grooming, online trafficking, and sexual exploitation. Which objective takes precedence? Which is more important?
In an ideal world, we’d say that both are equally important, and find a way to compromise. However, on this issue, it’ll probably take years to find a mutually acceptable way forward. How many children will be sexually abused during that time? Is the delay worth that price? There are those who’ll accuse me of adopting the liberal line, “It’s for the chiiiiilll-dren!” I’m sorry about tha6t, but in this case, it really is. I’ve seen the victims of child sex abuse at first hand. It’s the most spine-chilling, sickening thing you can imagine. The impact on their lives is deep-rooted and long-lasting; some say it never ends or goes away. I, for one, am not prepared to see more young lives ruined by delay. Yet, at the same time, I believe the EFF is right to argue against the erosion of civil liberties in the sphere of the Internet.
I have no answers. I wish I could wave a magic wand, and pop the solution out of a hat as if it were a white rabbit . . . but I can’t. What about you, readers? Do you have any suggestions that might satisfy the requirements of both sides? Let’s open this up to debate here, and see whether we can’t find a way forward.
I believe that there's something in the Constitution forbidding ex post facto laws
As a society we have a strong tendency to over react to problems. We're doing it again. About six months ago, I read about a father traveling cross country with his daughter, and some authority group along the way (TSA? Local police? Don't recall) separated them to make sure he wasn't a sex predator with a slave. They took the terrified girl alone and questioned her for a long time. The little girl was traumatized and put through a horrific experience – all because she was traveling with her father and not her mother or both.
I've been contributing to Operation Underground Railroad getting kids out of sexual slavery since they started. I get it. But for my son and his wife it works better for her to have the high wage/high stress day job and him to be the stay at home parent. I visualized this as my son and Precious Grand Daughter and it sickened me.
The FOSTA sounds like the NSA-style "suck everything up and run it through the computer" approach instead of targeted warrants. We've seen how well the NSA vacuum cleaner works out in, oh, the Boston Marathon Bombing, the San Bernardino Massacre, and things like the Parkland high school shooting. It doesn't work. I don't see a single reason to give one little bit of more power to the government that f***ed up all of those and more.
I'm fine with this so long as:
1) The government provides code to automatically find the child porn
a) The code is provided under a public domain license (i.e., anyone can use it without paying outrageous fees)
b) If a site is using the software without modifications, they CANNOT be held responsible for anything that the software misses, if the software is at most 2 versions out of date OR the version in use is less than a year old
c) The software can ONLY block child porn
d) The government provides a method to EASILY FIND and UPDATE the software such that a monkey can update the software
e) Software saying something is child porn doesn't mean it actually is — courts must ultimately decide
f) The software may NOT run on government computers or phone home for anything BESIDES child porn
2) A human actually looks at the video and makes a decision on whether or not it is child porn, and has to defend that decision in court if it is child porn (software should probably forward the video to a law enforcement officer).
a) No prosecution == video MUST go up AND government gives uploader ($1,000,000 + legal fees) * 1.03^(years since passage)
b) Failed prosecution == video MUST go up AND government gives uploader ($10,000,000 + legal fees) * 1.03^(years since passage)
Reasoning behind (1): Site operators must know what they have to do in order to be in compliance. Forcing everyone to purchase software that they cannot verify and be certain will get the job done is not workable long-term. And a software company can't gate the government required software behind political requirements or expand it to include items they find objectionable. Software can be wrong. Software can be very, very, wrong.
Reasoning behind (2): The government should be responsible for any false positives from software that they provide or force others to purchase. (2) is to ensure that the government has all the reasons to make the software work properly. If it is child porn, then they can convince a jury that it is. If it isn't, then it had no business being blocked, and the government should be penalized. As time goes on, false positives should become less common, hence the ever increasing penalty.
All of the above assumes that the law is implemented in a constitutional manner (i.e., no retroactive enforcement).
Harvey Schmertz rents a hotel room from, say, the (extremely expensive) Four Seasons in New York City. Harvey engages the services of a prostitute and takes her to his hotel room (in fact, let's sweeten the pot and make her an "underage prostitute" who is younger than 18).
Prostitution is illegal in New York City, and sex and/or prostitution with a minor is doubleplus ungood. The cops discover Harvey and his companion In The Act. Both are arrested.
New York City seizes the Four Seasons hotel, arrests the hotel's owners and employees, and auctions the hotel off for the proceeds.
I can add to that list, but you get the idea. The end result, I assure you, will be absolutely zero hotel rooms in New York City, at least none that are advertised as such or that you would want to stay in.
So, sure, let's totally screw up the existing protections for ISP and internet providers under Section 230. What could be wrong about that? It's for the children (TM) so it has to be absolutely necessary and wonderful. What, you hate children? You fascist pervert!!
You propose there should be government in order to prevent child abuse. But you've already noticed this law proposes to be retroactive. What else is this government going to do, contrary to what it says it will do? Having seen this evidence of bad things government is attempting, why do you trust it to act as your agent?
If the bad act you caught in advance was not retroactive law but child abuse, would you merely stop that act at that moment, or would you consider the actor revealed to be untrustworthy?
The choice of having a government to dictate how to raise children causes more total harm than the choice of making children chattel slaves of their parents.
We simply don't need this law. It's just like gun control. It's the people, not the inanimate object.
Did you know that 2,000 child molesters & traffickers have been arrested in the US since Donald Trump was sworn in as President? 200 in the LA County Schools last month. 500 in San Francisco last summer. It seems that the world-wide roundup of the white slavery rings, broken in Thailand a few years ago, were being blocked in the US by the former (how I love saying that) President Obama. The FBI had the cases ready, but they were forbidden from acting on them. The arrests started the day after Trump's inauguration.
Would you support a law that would be enforced by the Broward County Sheriff?
I'll take more (or at least unimpeded) liberties here Peter. Your heart is good, but also too close to the issue. In my opinion you're being far too over-protective, in a very destructive manner. The same type of over-protective that's created the ridiculous security at airports/borders, a security net that to date has largely changed nothing about the extremely safe border crossings/routine flights happening every day.
Don't get me wrong, child molestation is certainly one of the worst crimes out there, but I refuse to hand over even more control to the government/internet companies than I already do by virtue of being logged on.