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

15 August, 2024.

Sex trafficking is the fastest-growing global criminal market, which has been facilitated by the unlimited environment of online platforms and their inept user protection policies (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 par. 1). A significant factor in the growth of sex trafficking is the growth of social media and the immunity granted to online platforms by the 1993 Communications Decency Act (Section 230). Section 230 was initially created to give an umbrella of protection to online platforms from crippling lawsuits to allow the early internet to flourish. Thirty years later, Online platforms are extremely successful mega-cooperations earning hundreds of billions of dollars in revenue annually. However, platforms are absolved of any liability from their users, still residing under the umbrella immunity of section 230, allowing platforms to neglect their sites' security.

In response to the rapid growth rate of the sex trafficking market online, two bills to reform Section 230 were introduced to the Senate and House of Representatives 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 Section 230. McKnelly states that “SESTA/FOSTA… attempts 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). Section 230 no longer grants immunity to platforms that knowingly... recruit, solicit, or benefit financially from facilitating sex trafficking on their platforms (McKnelly 1254). A key feature of SESTA and FOSTA is the ability for attorney generals of U.S. states to sue online platforms for their part in facilitating sex trafficking, which has begun a new wave of lawsuits to force platforms to take accountability for their part in fostering criminal activity online and improve their online security measures and user protections.

Congress must continue to reform Section 230 to enforce platform security regulations. SESTA and FOSTA set the precedent that allows legal action against platforms facilitating sex trafficking to enforce platforms' compliance to prioritize users’ safety. In the article “The Indecency and Injustice of Section 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). Limiting Section 230 is imperative to uphold users' civil rights to take legal action against the criminal action of online platforms. Recent lawsuits made possible by SESTA and FOSTA’s limitations of Section 230 have gained momentum in improving users’ protections online, 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.