Opponents of the Fight Online Sex Trafficking Act (FOSTA) Give Arguments to D.C. Circuit
The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) was signed by the president on April 11, 2018, and has been an incredibly important piece of legislation aimed at stopping websites from facilitating and promoting prostitution and sex trafficking. The National Center on Sexual Exploitation, along with survivors and other advocates, supported the bill during its passage. FOSTA’s constitutionality was promptly challenged in the United States District Court for the District of Columbia on June 28, 2018, by the Woodhull Freedom Foundation, Human Rights Watch, Eric Koszyk, Jesse Maley (aka Alex Andrews), and The Internet Archive. Their complaint alleged, among other things, violations of the First and Fifth Amendments.
Judge Richard Leon ultimately dismissed the case, saying that the plaintiffs did not have standing to bring the lawsuit and, as a result, that the Court lacked authority to consider the merits of their challenges to FOSTA. Woodhull immediately appealed Judge Leon’s order to the United States Circuit Court of Appeals for the D.C. Circuit, where oral argument was heard by Judges Judith Rogers, Gregory Katsas, and Thomas Griffith on Friday, September 20, 2019. Robert Corn-Revere, a partner at Davis Wright Tremaine, argued for Woodhull and the other appellants, while Courtney L. Dixon, an attorney for the Department of Justice, represented the United States.
The argument focused primarily on whether the organizations and individuals challenging FOSTA face a “credible threat” of criminal prosecution or civil liability – the necessary standard for a pre-enforcement challenge. In addition to amending several statutes (including Section 230 of the Communications Decency Act), FOSTA criminalized owning, managing, or operating an “interactive computer service” with the “intent to promote or facilitate the prostitution of another person.” Interactive computer service is broadly defined by Section 230, and essentially includes any online service that (1) allows multiple users to access a specific server and (2) publishes content from a third party. This can include (but is not limited to) internet service providers, websites, and search engines.
The organizations argue that their advocacy work, promoting the full decriminalization of prostitution and providing safety resources for prostituted women, would be criminalized under FOSTA as “promoting or facilitating” prostitution. The Government argued against this interpretation by distinguishing between promoting and facilitating specific acts of prostitution and promoting prostitution as a general concept. The first, according to Dixon, includes Backpage-type actions of designing a website to increase sex trafficking and is criminalized under FOSTA. The second is entirely permissible.
Corn-Revere discussed the “threats” posed by the new criminal statute but was unable to point to any prosecutions brought under FOSTA, let alone one against an advocacy organization. He mentioned the ongoing federal case against Backpage, however FOSTA’s passage had no impact on that case. He went on to cite reports by Human Rights Watch that police have threatened HRW employees who were distributing condoms to prostitutes, for the purpose of promoting safety, and stated “it’s that kind of thing that can happen under this law [FOSTA].” The argument goes like this: HRW is advocating safety in prostitution and making it easier for prostitution to occur, therefore it is “promoting or facilitating” prostitution in violation of FOSTA. However, even assuming those actions did qualify as the “promotion or facilitation” of prostitution (which is unclear), it is entirely divorced from the online requirement and therefore does not implicate FOSTA in the slightest.
The Court suggested that perhaps a better interpretation of “promotion and facilitation” would be “aiding and abetting.” That approach, supported by case law, would clarify FOSTA’s application, and certainly exclude these organizations and individuals from any credible threat of prosecution or civil liability. Ultimately, there is something fundamentally different from the advocacy engaged in by Woodhull and HRW and the activities criminalized by FOSTA. FOSTA targets specific, illegal online activities – not, as Woodhull suggests, constitutionally protected speech.
FOSTA was, and is, a major victory in fighting online sex trafficking. It allows survivors, who previously had no legal recourse against websites that are actively facilitating trafficking, to bring lawsuits and hold online actors accountable for their role promoting exploitation; and it does so in a way that complies with the requirements of the Constitution.