New Anti-Trafficking Law gives prosecutors tool agaisnt website owners

President Trump will soon have the opportunity to sign a new anti-human trafficking law. The law, which is intended to stop predators from using websites to facilitate sex trafficking, will amend Section 230 of the Communications Decency Act, which protects online platforms from being held liable for their users’ speech. H.R. 1865, known as the Fight Online Sex Trafficking Act (FOSTA), would open websites to prosecution for knowingly promoting illegal activities and allow victims to sue for damages.

In Oklahoma, prosecutors are applauding the law, citing an Oklahoma County sex trafficking case from 2017 which involved a Texas teenager who was kidnapped and brought to Oklahoma City, where she was held in a hotel. Her captor then listed her on the website Backpage for prostitution. According to the National Human Trafficking Hotline, there were 75 cases of human trafficking reported in Oklahoma last year.

FOSTA allows state attorneys general to hold websites liable for posts which “unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” It also amends the Mann Act, a 1910 anti-prostitution law. FOSTA would create a new federal criminal offense for websites that publish content “with the intent to promote or facilitate the prostitution of another person.” The offense would be punishable by up to 10 years in prison.

Criminal Liability for Website Owners and Users

Although all interested parties share concerns about the prevalence of sex trafficking, critics of the bill point to its very broad definition of the facilitation crime as a potential problem. The law defines any person who participates "in an [online] venture" as potentially liable. The House bill defines “participation in a venture” as anyone “knowingly assisting, supporting or facilitating a violation” of the law. Under the current interpretation of the bill, there are concerns that any person who posts about sexual content online could potentially be charged with violating the law, exposing them to steep criminal and civil penalties.

The Senate bill, called the Stop Enabling Sex Traffickers Act (SESTA), does not contain this broad language. SESTA would require state prosecutors to prove that websites “knowingly participate[d] in the sex trafficking of children or sex trafficking by force, fraud, or coercion.”

The House bill’s legal standard is lower, eliminating the requirement that the person used force, fraud or coercion. Under. H.R. 1865, prosecutors must only show that a website intended to facilitate or promote prostitution. Small website owners, including people who operate blogs where sexual activity is discussed, could potentially be targeted by prosecutors. Free speech advocates are concerned that the bill will punish and over-regulate speech. Attorneys for sex workers believe that publishing comments about which customers are untrustworthy (known as "bad date lists") could be construed as "facilitating sex crimes."

The differences between the Senate and House definitions of the new facilitation crime will be resolved before the bill is forwarded to the President. In the meantime, small website owners and sex workers should be wary about posting any sexual content online.

Contact an Oklahoma Criminal Lawer to Protect Yourself If you run a website of any kind, it is important to know the implications of this law. Contact our thorough and zealous criminal lawyers today and we will help your limit your criminal and civil liability. Call 405-542-2529 (542-CLAW) and read more about our team, or continue reading and researching our free legal information library.


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