Coalition Letter in Opposition to FOSTA-SESTA

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]

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.