February 23, 2018
Hon. Mitch McConnell
Majority Leader
U.S. Senate
317 Russell Senate Office Building
Washington, DC 20510

Hon. Charles Schumer
Minority Leader
U.S. Senate
322 Hart Senate Office Building
Washington, DC 20510

(Additional addressees below)
Dear Legislators,
We, the undersigned organizations, have been actively engaged in the debate over the last year
regarding legislation intended to combat sex trafficking online. We share that goal: the sexual
exploitation of minors, and the enslavement of unwilling adults, is a moral abomination. Any new
legislation should empower prosecutors and compensate victims without inadvertently
discouraging responsible websites from helping to combat sex trafficking.
The House Judiciary Committee has done just that. But we write to express our concern regarding
yesterday’s announcement that House Leadership has scheduled a floor vote next week on a
version of the House bill that would incorporate a radically different Senate bill.1 The Senate
legislation would harm, not help, sex trafficking victims, whereas the House bill would not raise the
same significant concerns. Thus, the two bills cannot simply be merged. We urge leadership in both
chambers to commit to holding further hearings, particularly in the Judiciary Committees in each
chamber, before attempting to transport unworkable concepts from the Senate bill into the House
bill.
In December, the House Judiciary Committee marked up a bill introduced by Rep. Ann Wagner (RMO), the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA). On
Wednesday, the House Judiciary Committee reported that bill to the House. 2 FOSTA creates a new
federal crime: the intent to promote or facilitate prostitution using media of interstate commerce
(e.g., the Internet). By contrast, the Senate’s Stop Enabling Sex Traffickers Act (SESTA) criminalizes
“knowingly assisting, supporting, or facilitating [sex trafficking].” But as the FOSTA committee
report notes:
general knowledge that sex trafficking occurs on a website will not suffice as the knowledge
element must be proven as to a specific victim … A new statute that instead targets
promotion and facilitation of prostitution is far more useful to prosecutors. 3

Press Release, Rep. Mimi Walters, Rep. Mimi Walters’ Amendment Included In Major Sex Trafficking
Legislation (Feb. 21, 2018), https://goo.gl/dgkV9n.
2 H.R. Rep. No. 115-572 on H.R. 8165 Allow States and Victims to Fight Online Sex Trafficking Act of 2017,
(Feb. 20, 2018), https://goo.gl/ars2x5.
3 Id.
1

 For the same reasons, FOSTA is more likely than SESTA to deliver monetary compensation to
victims. If, as we expect and experienced prosecutors have suggested, SESTA would not result in
more criminal convictions, neither would it supply plaintiffs with court-ordered restitution or the
evidence that would be most effective in winning civil damage awards for victims. FOSTA would not
actually require a criminal conviction prior to civil suit; a civil plaintiff could establish a violation of
the criminal law under the lower civil burden of proof. Prosecutors will always play a critical role in
enabling civil lawsuits, as they have unique advantages in the difficult investigative task of
distinguishing good websites from bad ones. In that sense, FOSTA, by enabling prosecutions, will
help civil plaintiffs, while SESTA, by failing to enable prosecutions, will not.
FOSTA offers a third benefit: responsible sites trying to stop sex trafficking, and to cooperate with
law enforcement, will not be discouraged from doing so. But SESTA, by tying criminal liability to
mere “knowledge” of sex trafficking, creates a perverse incentive for websites to stop monitoring
user activity on their sites, lest they later be accused of having acquired “knowledge.” This has been
called the “Moderator’s Dilemma;” avoiding it was the primary purpose of the Section 230
immunity: “to remove disincentives for the development and utilization of blocking and filtering
technologies.” 47 U.S.C. § 230(a)(4).
SESTA’s sponsors seem implicitly to recognize the Moderator’s Dilemma, because the bill explicitly
preserves the immunity in Section 230(c)(2)(A). Unfortunately, they misunderstand how that
immunity works: it protects blocking or filtering but not the monitoring of user content necessary
for filtering, and it is in the course of monitoring user content that websites risk gaining
“knowledge” of illegal activity. Section 230 has no explicit reference to monitoring, but its current
immunity protects the full range of what websites do — thus implicitly protecting websites from
liability for knowledge gained in monitoring content as well as from claims that they should have
done even more monitoring. Ending the heart of that immunity (§ 230(c)(1)) necessarily means
ending these protections for monitoring. That, in turn, will cause sites to do less monitoring,
content moderation, and cooperation with law enforcement.
For these reasons, among others,4 we do not believe SESTA’s language is workable. We would be
happy to help lawmakers parse the differences between the two bills and explore ways to address
concerns about FOSTA. But any attempt to simply merge the two bills on the House floor would be
an abdication of lawmakers’ responsibility to the victims of sex trafficking. Lawmakers owe it to
them to take the time to carefully consider what they are doing. That cannot be done on the House
floor, or in conference, or without the expertise of both Judiciary Committees.
We urge House Leadership not to attempt to merge the bill produced by the careful work of the
House Judiciary Committee with a Senate bill that simply bypassed that chamber’s Judiciary
Committee. Major changes to federal criminal law should never be made without careful scrutiny by
the Judiciary Committee in each chamber.

TechFreedom’s Letter to Rep. Goodlatte & Rep. Wagner on FOSTA Markup (Dec. 11, 2018),
https://goo.gl/uYJ4pq.
4

 Failing that, should the House leadership attempt to perform conjunctive surgery on the House
floor of two radically different bills, we urge the Senate Judiciary Committee to assert itself when
the chimera bill returns to the Senate — and to hold its own hearings on this most difficult of topics.
A federal district court is set to rule any day now on whether to allow civil litigation against
Backpage to proceed under existing law5 (because Section 230’s immunity does not apply if website
operators can be shown to be “responsible, in whole or in part, for the creation or development of
information”6). This critical decision could make clear that Section 230 is not, in fact, the bar to civil
litigation that many assume today. Such a decision could call into question whether Section 230
really needs to be amended at all; certainly, at a minimum, it would suggest that FOSTA’s approach
to civil litigation (preserving Section 230 qualified immunity against civil suits) will allow
meritorious civil suits to proceed while properly shielding sites as Congress originally intended.
Congress would be well served to consider this decision, whatever its outcome, before taking any
floor vote.
House Leadership is not merely dismissing crucial questions about the effectiveness of SESTA; it is
planning to violate its own most basic procedural safeguards. The House Energy and Commerce
Committee (E&C) and the House Judiciary Committee (HJC) have not exchanged the traditional
jurisdictional waiver letters — meaning that E&C has not properly notified HJC of the waiver that
would be necessary for the bill to proceed to the House floor. We can only surmise that this normal
step was bypassed in order to advance FOSTA, which HJC only just reported out of Committee, to
the floor to meet an arbitrary political timetable.
Such deviations from standard procedure of the House are troubling in their own right; they also
indicate that vital sex trafficking legislation is simply not getting the time and attention it deserves.
The
There is simply no excuse, or reason, for rushing through a bill that ends up hurting the
victims of sex trafficking.
Respectfully,
TechFreedom
Engine
FreedomWorks
Citizens Outreach
R Street Institute
Committee for Justice

5
6

Doe No. 1 et al v Backpage, LLC et al, No. 1:2017cv11069 (D.Mass. filed June 12, 2017).
47 U.S. Code § 230 (f) (3).

 Additional Addressees:
Hon. John Thune
Chairman
Senate Committee on Commerce, Science &
Transportation
511 Dirksen Senate Office Building
Washington, DC 20510

Hon. Bill Nelson
Ranking Member
Senate Committee on Commerce, Science &
Transportation
716 Hart Senate Office Building
Washington, DC 20510

Hon. Paul Ryan
Speaker
U.S. House of Representatives
1233 Longworth House Office Building
Washington, DC 20515

Hon. Nancy Pelosi
Minority Leader
U.S. House of Representatives
235 Cannon House Office Building
Washington, DC 20515

Hon. Greg Walden
Chairman
House Energy & Commerce Committee
2185 Rayburn House Office Building
Washington, DC 20515

Hon. Frank Pallone
Ranking Member
House Energy & Commerce Committee
237 Cannon House Office Building
Washington, DC 20515

Hon. Pete Sessions
Chairman
House Committee on Rules
2233 Rayburn House Office Building
Washington, DC 20515

Hon. Louise McIntosh Slaughter
Ranking Member
House Committee on Rules
2469 Rayburn House Office Building
Washington, DC 20515

Hon. Steve Scalise
Majority Whip
U.S. House of Representatives
2338 Rayburn House Office Building
Washington, DC 20515

Hon. Steny Hoyer
Minority Whip
U.S. House of Representatives
1705 Longworth House Office Building
Washington, DC 20515

Hon. Kevin McCarthy
Majority Leader
U.S. House of Representatives
2421 Rayburn House Office Building
Washington, DC 2051