It goes without saying that everyone is against sex trafficking. So, on 11 April 2018, US president Donald Trump signed into law the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), in response to public concerns about websites like and others allowing users to advertise sex trafficking services. This sounds right and uncontroversial, and it makes sense that FOSTA passed the US Congress by rare and overwhelming bipartisan majorities of Democrats and Republicans.

But for all of its good intentions, FOSTA has major implications for free speech on the internet. This is because the law amends several federal laws, including most importantly the Communications Decency Act (CDA), which, for over 20 years, has been a cornerstone of the internet as we know it today. Section 230 of the CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. Without this simple law, the internet as we currently know it would not exist. It is only because of CDA Section 230 that social media and user content sites like YouTube, Facebook or Yelp are able to survive, for the simple reason that without the CDA, such social media sites would be viewed as publishers and, therefore, liable for all the potentially false, defamatory or illegal content posted by millions of users. Facing such overwhelming liability, all such social media websites would have quickly shut down. Hence the reason why Congress passed the CDA in the first place back in 1996.

Oct-Dec 2018 Issue

Holland & Knight