EFF sues to kill FOSTA, calling it “unconstitutional Internet censorship law”

The Electronic Frontier Foundation has asked a court to invalidate a new anti-prostitution law, saying that it amounts to unconstitutional censorship of the Internet.

The Fight Online Sex Trafficking Act (FOSTA) was approved by Congress and signed by President Trump in April. Websites responded to the new law by shutting down sex-work forums, potentially endangering sex workers who used the sites to screen clients and avoid dangerous situations.

The EFF filed the lawsuit in US District Court for the District of Columbia on behalf of several plaintiffs.

"In our lawsuit, two human rights organizations, an individual advocate for sex workers, a certified non-sexual massage therapist, and the Internet Archive, are challenging the law as an unconstitutional violation of the First and Fifth Amendments," EFF Civil Liberties Director David Greene wrote. "Although the law was passed by Congress for the worthy purpose of fighting sex trafficking, its broad language makes criminals of those who advocate for and provide resources to adult, consensual sex workers and actually hinders efforts to prosecute sex traffickers and aid victims."

Law conflates trafficking with all sex work

Despite Congress's stated purpose of stopping sex trafficking, FOSTA barely distinguishes between trafficking and consensual sex work.

While Section 230 of the 1996 Communications Decency Act provides website operators with broad immunity for hosting third-party content, FOSTA eliminates that immunity for content that promotes or facilitates prostitution. Operators of websites that let sex workers interact with clients could thus face 25 years in prison under the new law.

FOSTA "is the most comprehensive censorship of Internet speech in America in the last 20 years," Greene said.

The complaint asks the court to declare that FOSTA is unconstitutional and to permanently enjoin the US from enforcing it. The lawsuit argues:

The law erroneously conflates all sex work with trafficking. By employing expansive and undefined terms to regulate online speech, backed by the threat of heavy criminal penalties and civil liability, FOSTA casts a pall over any online communication with even remote connections to sexual relations. It has impeded efforts to prevent trafficking and rescue victims, and has only made all forms of sex work more dangerous. FOSTA has undermined protections for online freedom of expression, contrary to the near unanimity of judicial decisions over the past two decades.

The speech of sex worker advocates is being inhibited "even though they do not advocate for, and indeed are firmly opposed to, sex trafficking," the lawsuit said. FOSTA "prohibits a substantial amount of protected expression" by making it a crime to operate an "interactive computer service" with the intent to "promote" or "facilitate" prostitution, the lawsuit said.

FOSTA places no real limits on "what might constitute promotion or facilitation of prostitution or trafficking," violating a precedent that the government must regulate speech "only with narrow specificity," the lawsuit said. If the government can achieve its interests in a way that doesn't restrict speech "or that restricts less speech," it is required to do so, the lawsuit said.

FOSTA’s effect on plaintiffs

An EFF press release describes how plaintiffs have been affected by FOSTA.

One plaintiff, the Woodhull Freedom Foundation, "works to support the health, safety, and protection of sex workers, among other things," the EFF wrote. "Woodhull wanted to publish information on its website to help sex workers understand what FOSTA meant to them. But instead, worried about liability under FOSTA, Woodhull was forced to censor its own speech and the speech of others who wanted to contribute to their blog. Woodhull is also concerned about the impact of FOSTA on its upcoming annual summit, scheduled for next month."

FOSTA already "led to the shutdown of Craigslist's 'Therapeutic Services' section, which has imperiled the business of a licensed massage therapist who is another plaintiff in this case," the EFF wrote. The Internet Archive joined the lawsuit "because the law might hinder its work of cataloging and storing 330 billion web pages from 1996 to the present."

"FOSTA calls into serious question the legality of online speech that advocates for the decriminalization of sex work, or provides health and safety information to sex workers," the EFF wrote.

Human Rights Watch, which "advocates globally for ways to protect sex workers from violence, health risks, and other human rights abuses," is worried "that its efforts to expose abuses against sex workers and decriminalize voluntary sex work could be seen as 'facilitating' 'prostitution,' or in some way assisting sex trafficking," the EFF wrote.