WASHINGTON
LEGISLATIVE OFFICE

February 26, 2018

AMERICAN CIVIL
LIBERTIES UNION
WASHINGTON
LEGISLATIVE
OFFICE
915 15th STREET,
NW, 6 T H FL
WASHINGTON, DC
20005
T/202.544.1681
F/202.546.0738
WWW.ACLU.ORG
FAIZ SHAKIR
DIRECTOR
NATIONAL OFFICE
125 BROAD STREET,
18 T H FL.
NEW YORK, NY
10004-2400
T/212.549.2500
OFFICERS AND
DIRECTORS
SUSAN N. HERMAN
PRESIDENT
ANTHONY D. ROMERO
EXECUTIVE
DIRECTOR
ROBERT REMAR
TREASURER

The Honorable Paul D. Ryan
Speaker
U.S House of Representatives
United States Capitol Bldg.
Room H-232
Washington, D.C. 20515
RE:

The Honorable Nancy Pelosi
Minority Leader
U.S House of Representatives
United States Capitol Bldg.
Room H-204
Washington, D.C. 20515

Oppose H. R. 1865 – The “Allow States and Victims to Fight
Online Sex Trafficking Act”

Dear Representatives:
The American Civil Liberties Union (ACLU) writes to express its opposition
to H. R. 1865, the “Allow States and Victims to Fight Online Sex
Trafficking Act”, also referred to as FOSTA, which is expected to have a
House floor vote on Tuesday February 27th. The bill is a serious, yet
unsuccessful, attempt to stop the use of the Internet for sex trafficking
without hindering online freedom of expression and artistic innovation. Tech
experts say that a thriving Internet requires retaining certain liability
protections for online platforms providers. Victims’ rights advocates, on the
other hand, say the sex trafficking problem requires narrowing those
protections. The bill misses the achievable legislative opportunity to do both,
and in particular leaves the Internet exposed to the uncertain impact of
changed protocols on the part of platform providers.
For nearly 100 years, the ACLU has been our nation’s guardian of liberty,
working in courts, legislatures, and communities to defend and preserve the
individual rights and liberties that the Constitution and the laws of the
United States. With more than 2 million members, activists, and supporters,
the ACLU is a nationwide organization that fights tirelessly in all 50 states,
Puerto Rico, and Washington, D.C. for the principle that every individual’s
rights must be protected equally under the law, regardless of race, religion,
gender, sexual orientation, disability, or national origin.

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 The risks to the Internet as the world’s most significant marketplace of ideas outweigh the
uncertain benefit of the bill to the fight against sex trafficking. Accordingly, ACLU opposes the
bill both in its current form and as it may be amended by Rep. Mimi Walters (R-CA) proposal to
incorporate parts of the Senate alternative bill, an amendment likely to be approved in the Rules
Committee for consideration on the floor 1. While the language of H. R. 1865 has been
improved to address some of the ambiguities creating the most significant risks, ACLU remains
concerned that the bill, if enacted, will foster an atmosphere of hesitation among online platform
providers. This uncertainty will inhibit the continued growth of the Internet as a place of
creativity and innovation.
FOSTA’s earlier version was an onerous bill that would have drastically curtailed protections for
online publishers. The rationale for liability protections for online providers is that they should
not suffer criminal or civil liability merely for creating online fora to which others may post
content, even when some of those communications turn out to be offensive or even unlawful.
Any liability should be on those who create and post that content.
The ACLU has long supported maintaining the statutory immunity provisions of section 230 of
the Communications Act of 1934 in order to promote freedom of speech and expression. Section
230 became one of the key factors enabling the robust expansion of Internet-based speech,
communications, and commerce. It is a critical factor in maintaining the Internet’s diverse
ecosystem of speech and art and advancing economic and political dialogue. We opposed
FOSTA’s predecessor bill, which was revised through the efforts of a broad cross-section of
victim advocates, law enforcement, and tech experts. The current version creates a new federal
facilitation of prostitution crime, but would still at least modestly impact liability protections for
online providers.
Similarly, ACLU opposed the “Stop Enabling Sex Traffickers Act” (S. 1693, SESTA), the
Senate alternate version of this bill, but also acknowledged improvements incorporated prior to
final committee approval. In particular, the modified version of SESTA heightened the intent
standard needed to establish a criminal violation – a key distinction separating a typical online
platform provider from one that might inject itself into the online content being posted to its
platform. Also, in authorizing state prosecutions notwithstanding the federal liability protections
for online platforms, the bill would limit state prosecutions to those where the behavior violated
the federal law.
The changes to both the House FOSTA bill and the Senate SESTA bill were the result of
concerted advocacy efforts by Internet and other tech experts who testified about the critical
importance played by section 230 protections. In the days before the section 230 protections
1

See Amendment Offered by Rep. Mimi Walters (available at https://amendmentsrules.house.gov/amendments/WALTCA_009_xml%20 (HR1865)22118140257257.pdf).

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 were adopted over two decades ago, online providers were subject to a lawsuit for allowing the
posting of content. The threats were so financially significant that providers would simply bar
the posting of third party content, knowing they could never fully insulate themselves from
liability except by blocking all content that might be offensive to some. Since the adoption of
section 230, online providers are free to curate their sites’ content without fearing liability for
what others post.
Even with the improvements in both bills, ACLU continued to oppose both measures because the
risks to the vibrancy of the Internet as a driver of political, artistic, and commercial
communication is real and significant. Moreover, there is little to suggest that current law could
not be used to find and punish the bad actors who are truly facilitating online sex traffickers. In
fact there is at least one court decision pending now that could prove that point in a matter of
weeks. 2 There are a host of state laws outlawing such behaviors and current liability protections
are intended to protect only those who are simply providing a channel for others to use, not those
who are determining what is posted and who have a malicious intent to do harm to others.
When the House takes up FOSTA, Rep. Walters (R-CA) is expected to offer an amendment that
will incorporate key elements of SESTA into the FOSTA framework. The ACLU opposes both
the amendment and the final bill. They pose a risk to freedom of speech on the Internet as we
have come to know it while purporting to solve a problem that could be addressed in other ways.
***
If you have questions or comments about ACLU’s position on this legislation, please contact
first amendment advisor Michael Macleod-Ball at macleod@627consulting.com, phone:
202.253.7589.
Sincerely,

Faiz Shakir
National Political Director
cc:

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Members of the U. S. House of Representatives

Doe No. 1 et al v Backpage, LLC et al, No. 1:2017cv11069 (D.Mass. filed June 12, 2017).

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