When a “Sex Trafficking” Bill Actually Makes Sex Trafficking Worse

The House just passed a bill to address online sex trafficking; it highlights everything that’s wrong with U.S. politics

On February 27, the House of Representatives passed the “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA). Unfortunately, the bill with a noble-sounding name is anything but.

At its core, FOSTA is aimed at amending Section 230 of the Community Decency Act, a statute which literally makes the internet as we know it possible. Simply put, it prevents online platforms from being held liable for their users’ speech, except in certain, limited circumstances (e.g. federal criminal activity, IP infringement). Importantly, it also does not punish internet companies for moderating content. They can moderate as much as they’d like, and it won’t be held against them (“you took down this post but not that one!” isn’t something a prosecutor can say). FOSTA would change this, by making websites liable for “knowingly assisting, supporting or facilitating” a violation of sex trafficking laws, which could have two main consequences:

  • Creates a “moderator’s dilemma” for internet platform and their efforts to moderate content, leading to either of two undesirable outcomes
  • Makes it difficult for smaller internet companies to compete with internet giants and their limitless resources

Let’s forget for a second the fact that even the Department of Justice has come forward saying that existing laws are sufficient and FOSTA actually makes it more difficult for prosecutors to prove up cases against internet companies and examine these two issues.

Photo by Rachael Crowe on Unsplash

The Moderator’s Dilemma

By crafting a “knowing” standard for the facilitation of sex trafficking, the new law would create a “Moderator’s Dilemma” ( for in-depth analysis of all things Section 230, Professor Eric Goldman’s blog is required reading. Credit goes to him for coining this term.). This means that any effort to moderate third-party content—whether or not it is related to sex trafficking—may make the internet company “know” of content, thus creating liability. Thus, companies will be incentivized to take one of two tacts:

  • Moderate content with a tight fist, to the point of over moderation. This may catch more sex trafficking content, but it would also lead to the censorship of non-sex trafficking content. Importantly, this may result in the moderation of content generated by victims of sex trafficking or advocates of their cause.
  • Don’t moderate content at all, such that knowledge cannot be proven.

With the millions of pieces of user-generated content that flood any of these large sites each day, it seems unlikely they’d be able to catch all relevant content. As such, the new law could simply cause them to take the latter course, dialing back their content moderation efforts. This is unfortunate, given that the largest companies have been steadily increasing their content moderation efforts, by both increasing staff and leveraging AI.

Finally, there’s no case law defining what knowledge would mean in this context, creating further confusion and uncertainty for companies.

Small platform competition

The Moderator’s Dilemma puts existing internet platforms in a difficult position. But, Facebook, Google and friends have essentially unlimited resources so could probably adapt in the long term. They don’t exactly paint a sympathetic figure anyway (at least I don’t feel sorry for them). But, Section 230 applies to a vast array of online services. It includes review sites (Yelp), online marketplaces (Etsy), discussion boards (name your favorite), ISPs (unsympathetic, but hey), even publications with comment sections, however small (and places like Medium). FOSTA is really aimed at a small minority of platforms that seem to knowingly facilitate sex trafficking (BackPage.com is the real issue here, which Congress is currently investigating), but uses a blunt instrument that will harm the vast majority of websites that provide useful services, marketplaces or content.

In the end, the passing of this bill perfectly captures everything that’s wrong with Congress. Reps can show that they did something to solve the very serious issue of sex trafficking. “Today I voted to Fight Online Sex Trafficking” fits nicely into a tweet, so what else really matters? Many of the 388 Reps who voted for it probably have no idea what they did, or the elegance of Section 230 that makes it (and the internet) work (the average age of Representatives is 57, some 20 years older than the average American, not to mention the whole diversity thing). They saw what Facebook and Twitter did to impact the 2016 election and feel emboldened to do something to try and restrain the power of these huge internet platforms. But, they haven’t stopped to think what should actually be done; as long as something is one, it’s a victory. In the power struggle between Big Tech and politicians, the politicians will chalk this one up as a win.


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