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.