Limitations to Section 230; SESTA and FOSTA Set Precedents for User Protections Online.

15 August, 2024.

Limitations to Section 230; SESTA and FOSTA Set Precedents for User Protections Online.

Sex trafficking is the fastest-growing global criminal market, facilitated by virtually unregulated online environments and user protection policies trailing advancements in technology (Leary 556). The U.S. Department of State estimates that 27.6 million people are trafficked globally at any given point in time (U.S Department of State 1). The expansion of the online population coupled with liability immunity granted to online platforms by the 1993 Communications Decency Act (§ 230) significantly factors in the rise of sex trafficking market. Initially passed to protect online vulnerable start-up companies from a tidal wave of lawsuits threatening the development of the internet, § 230 provides online platforms with umbrella immunity from liability for the actions of users. Thirty years later, online platforms evolved into highly successful mega-cooperations, and the expansion of the internet is no longer a concern, yet online companies still reside under the umbrella protections of § 230. Absolved of user liability, platforms neglect user protections and their platform’s security.

In response to the rapid expansion of the online sex trafficking market, Congress passed two bills reforming § 230 in 2017: the Allow Victims and States to Fight Online Sex Trafficking Act of 2017 (FOSTA) and the Stop Enabling Sex Trafficking Act of 2017 (SESTA). In the article “Untangling SESTA/FOSTA: How the Internet’s “Knowledge” Threatens Anti-Sex Trafficking Law” in the Berkley Technical Law Journal, Megan McKnelly describes that SESTA and FOSTA are exceptions to the immunity granted to online platforms through § 230. McKnelly explains that “SESTA/FOSTA… attempt to enable states and prosecutors to prosecute sex traffickers more easily, and clarifies that § 230 immunity does not protect [platforms] from sex trafficking-related activity by their users” (McKnelly 1252). § 230 no longer grants immunity to platforms that knowingly... recruit, solicit, or benefit financially from facilitating sex trafficking on their platforms (McKnelly 1254). SESTA and FOSTA grant U.S. attorneys general authority to prosecute online platforms for their part in facilitating sex trafficking, initiating an upsurge of lawsuits, enforcing accountability, and improving user protections and security measures of online platforms.

Congress must continue to reform § 230 to enact adequate platform security regulations. SESTA and FOSTA set the precedent allowing legal action against platforms for their part in facilitating sex trafficking, requiring platforms to prioritize users’ safety. In the article “The Indecency and Injustice of § 230 of the Communications Decency Act.” From the Harvard Journal of Law and Public Policy, Mary Leary states, "Congress must now consider the viability of a legal regime in which online companies profit from social ills and then claim immunity from criminal liability” (Leary 629). It is imperative to continue the reform of § 230 to uphold users' right to legal recourse against criminal actions of online platforms. Recent lawsuits made possible by SESTA and FOSTA garner support and momentum, improving users’ protections online and paving the way for future reform to the Communications Decency Act.

Citations

Leary, Mary. “The Indecency and Injustice of Section 230 of the Communications Decency Act.” Harvard Journal of Law and Public Policy, 2018.

McKnelly, Megan. “Untangling SESTA/FOSTA: How the Internet’s “Knowledge” Threatens Anti-Sex Trafficking Law.” Berkeley Technology Law Journal, vol. 34, no. 4, 2019, pp. 1239–1266, lawcat.berkeley.edu, doi.org/10.15779/Z384J09X96.

U.S. Department of State. About Human Trafficking, U.S. Department of State, www.state.gov/humantrafficking-about-human-trafficking/. Accessed 15 Aug. 2024.