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H.R. 1865, Allow States and Victims to Fight Online Sex Trafficking Act of 2017

Floor Situation

On Tuesday, February 27, 2018, the House will consider H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) of 2017, under a structured rule. The bill was introduced on April 3, 2017, by Rep. Anne Wagner (R-MO) and was referred to the House Committee on the Judiciary, which ordered the bill reported, as amended, by voice vote on December 12, 2017.


Summary

H.R.  1865 attempts to combat online sex trafficking by providing new tools to law enforcement through a new federal criminal statute and by making it easier for states to prosecute criminal actor websites by amending Section 230 of the Communications Decency Act.

Specifically, the bill does the following:

- Creates a statutory maximum of 10 years imprisonment for the use or operation of an interstate facility with the intent to promote or facilitate the deliberate prostitution of another person.

-Creates an aggravating factor when the intent to promote or facilitate the trafficking of five or more persons; or when the act is in reckless disregard of the fact that the conduct of using or operating a commercial facility contributed to sex trafficking. These aggravating circumstances carry a fine and/or statutory a statutory maximum of 25 ears’ imprisonment.

- Creates a civil recovery mechanism by which injured persons may recover damages if they were a victim of certain violations.

-Amends the Communications Decency Act to allow states to enforce certain criminal laws related to sex trafficking without litigating the application of Section 230 in certain instances and with certain restrictions.


Background

Congress passed the Communications Decency Act in 1996, in an attempt to ‘‘remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material.’’ The CDA provides broad immunity for interactive computer services and states that no ‘‘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.’’ The CDA only allows state laws to be enforced in cases in which they are deemed ‘‘consistent’’ with the CDA.[1] This limited pre-emption has impeded state and local prosecutors from being able to prosecute bad-actor websites that are harming their communities.

Current federal criminal law, which is unaffected by the CDA, presently lacks proper prosecutorial tools to combat these websites. Though under 18 U.S.C. § 1591, a website may be held

criminally liable for knowingly advertising sex trafficking, this knowledge standard is difficult to prove beyond a reasonable doubt. This is so because online advertisements rarely, if ever, indicate that sex trafficking is involved. The advertisements neither directly nor implicitly state that force, fraud, or coercion was used against the victim, nor do they say that the person depicted being prostituted

is actually under the age of 18. Because these indicia of knowledge of criminality are typically lacking in the advertisements, federal prosecutors usually cannot demonstrate beyond a reasonable doubt that the website operators knew that the advertisements involved sex trafficking. Further, general knowledge that sex trafficking occurs on a website will not suffice as the knowledge element must be proven as to a specific victim.[2]

H.R. 1865 will allow vigorous criminal enforcement against all bad-actor websites, not just Backpage.com, through the creation of a new federal law and by explicitly permitting states to enforce

criminal laws that mirror this new federal law and current federal sex trafficking law, without having to litigate whether the laws are “consistent” with CDA. With this robust criminal enforcement, victims will have more opportunities to obtain restitution.

According to the bill sponsor, “FOSTA is a victims first bill that will shut down the websites that profit from modern day sex slavery, send the people who operate them to jail, and ensure that vulnerable people are never sold online. Importantly, this brings Congress one step closer to passing a bill that will finally provide justice for sex trafficking victims. This legislation is about more than just Backpage.com; by amending Section 230 to give federal, state, and local prosecutors practical tools to hold websites accountable, we will wreak havoc on the hundreds of websites profiting from the sale of sex trafficking victims across my district and our country.”[3]


Amendments

  1. Rep. Goodlatte (R-VA) – This amendment makes technical changes to the bill, adds “attempt” language that had been inadvertently omitted, clarifies that only sex trafficking victims may recover restitution, and permits the existing affirmative defense to be raised in cases where a defendant is being prosecuted under subsection 2421A(b)(1).
  2. Rep. Walters (R-CA) – This amendment allows enforcement of criminal and civil sex trafficking laws against websites that knowingly facilitate online sex trafficking
  3. Rep. Jackson Lee (D-TX) – This amendment requests a GAO study of: 1) civil damages claimed and awarded in civil actions where the claimant alleges the defendant promoted or facilitated the prostitution of five or more people, or acted in reckless disregard of the fact that their conduct contributed to sex trafficking, filed pursuant to 18 USC 2421A(c); and 2) mandatory restitution requested and orders imposed by courts where a defendant is convicted of using or operating a facility or means or interstate or foreign commerce with intent to promote or facilitate the prostitution of another, promoted or facilitated the prostitution of give or more people, or acted in reckless disregard of the fact that their conduct contributed to sex trafficking, pursuant to 18 USC 2421A(d).

Cost

The Congressional Budget Office (CBO) estimates enacting H.R. 1865 would not increase net direct spending or on-budget deficits in any of the four consecutive 10-year periods beginning in 2028.

H.R. 1865 would broaden the coverage of current laws against sex trafficking. As a result, the government might be able to pursue cases that it otherwise would not be able to prosecute. CBO expects that the bill would apply to a relatively small number of offenders, however, so any increase in costs for law enforcement, court proceedings, or prison operations would not be significant. Any such spending would be subject to the availability of appropriated funds.

Because those prosecuted and convicted under H.R. 1865 could be subject to criminal fines, the federal government might collect additional fines under the bill. Criminal fines are recorded as revenues, deposited in the Crime Victims Fund, and later spent without further appropriation action. CBO expects that any additional revenues and associated direct spending would not be significant because the bill would probably affect only a small number of cases.


Staff Contact

For questions or further information please contact John Huston  with the House Republican Policy Committee by email or at 6-5539.


[1] See House Report 115-572
[2] Id.
[3] See Rep. Ann Wagner Press Release, December 12, 2017.

115th Congress