Responding to issues of online sex trafficking from the likes of Backpage.com, the Senate and House have each produced legislation to expand civil and criminal liability for online hosting companies: the Stop Enabling Sex Traffickers Act (SESTA) in the Senate, and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) in the House. Both purport to provide prosecutors with the tools to target bad actors. But which one provides the tools that will work?
The answer is FOSTA. While SESTA writes a new, potentially more expansive definition into the existing sex-trafficking law, FOSTA uses clear language to give prosecutors a new way to catch websites enabling sex traffickers. Perhaps this is why FOSTA has garnered the support of the organization representing many of the prosecutors charged with enforcing these crimes, the National Association of Assistant United States Attorneys.
Both bills change criminal sex trafficking laws in an effort to reach malfeasant website operators, but they do so in very different ways. SESTA tinkers with the existing criminal statute by defining “participation in a venture” of sex trafficking to mean knowingly “assist[ing], support[ing], or facilitate[ing]” an act of sex trafficking. SESTA’s added definition uses broad terms that have resisted uniform interpretation in the courts. This ambiguity exacerbates the very uncertainty the bill attempts to resolve.
By contrast, FOSTA creates a brand new offense criminalizing any commercial endeavor that acts with “the intent to promote or facilitate” illegal prostitution, with aggravated penalties if it involves five or more people, or is done with reckless disregard of the fact that it contributes to sex trafficking. This language represents a clear, albeit high, bar that conduct must hurdle to be found criminal.
That clear standard is good news both for prosecutors and the general public. Vague and ambiguous laws are difficult to prosecute properly; they make it tough for individuals to avoid potentially criminal behavior, rely too heavily on prosecutorial discretion to determine culpable actors, and ultimately force the courts to write details into the law. All of this fosters the kind of uncertainty that is anathema to conscientious prosecution. As such, FOSTA’s higher criminal intent standard is well worth the clarity of language that accompanies it.
Not only is FOSTA’s language cleaner, its potential impact on real cases is more readily apparent. Consider, for example, the recent case against MyRedBook.com, which hosted content consisting of sexual solicitations and thinly veiled prostitution. The government was forced to settle for an illegal prostitution conviction despite having alleged that the website advertised minors for prostitution. While the Stop Advertising Victims of Exploitation (SAVE) Act of 2015’s addition of “advertising” to the list of culpable actions may help prosecutors bridge the gap from illegal prostitution to sex trafficking in instances like this, the dearth of prosecutions using this new language suggests it may not be enough.
If that’s the case, it’s difficult to imagine how SESTA’s new definition of “participation in a venture” would help. On the other hand, it’s easy to see how FOSTA’s new aggravated offense could be triggered, thereby enabling prosecutors to pursue sex trafficking charges against websites like MyRedBook.com.
In attempting to catch guilty parties escaping conviction under present law, Congress needs to decide whether prosecutors would be better served by a bigger trap or a more precise one. If Congress is truly trying to empower prosecutors, FOSTA’s targeted approach is clearly superior.
Arthur Rizer is the director of criminal justice and security policy at the R Street Institute and a former federal prosecutor. Lars Trautman is a senior fellow at the R Street Institute and a former state prosecutor.