How Congress Really Works: Section 230 and FOSTA
Since it became law in 1996, Section 230—which shields tech companies from liability for the third-party content that they host—has seemed untouchable. All of that changed in 2018, however, when fosta (the Allow States and Victims to Fight Online Sex Trafficking Act) was enacted into law. Fosta carved federal sex trafficking laws out of Section 230, among other things.
Although stopping online sex trafficking may seem uncontroversial, tech companies put up significant opposition to fosta. Shortly after its passage, a narrative emerged among liberal publications that fosta was driving sex work underground—endangering the safety of sex workers and even killing them. But even if we accept such claims at face value, there are still reasons to doubt the second part of this narrative: that fosta’s changes to Section 230 were to blame. If fosta did drive sex work underground, then the obvious culprit would be fosta’s new anti‑prostitution law—not fosta’s changes to 230.
Congress sought to amend Section 230 so that it could not block lawsuits that would normally be allowed under federal sex trafficking laws. Most Big Tech companies opposed that, so they made a play to create a new anti-prostitution law instead. That play backfired, however, and fosta ended up doing both.
Regardless of how you view sex workers, this story offers a revealing case study of how Congress really works—and of how tech lobbying works. It also has implications for future debates on Section 230 and proposed legislation like earn it, which would carve federal and state child pornography laws out of 230.
What Does FOSTA Do?
Fosta is widely perceived to be a simple Section 230 bill, but the text of fosta actually had four substantive parts. Section 3, the anti-prostitution law, made it a federal crime to run a website “with the intent to promote or facilitate the prostitution of another person.” Section 4 amended Section 230. Section 5 clarified that participation in a sex trafficking venture was defined as “knowingly assisting, supporting, or facilitating” sex trafficking. Section 6 let state attorneys general sue on behalf of their citizens when federal sex trafficking laws were broken.
If fosta did harm sex workers, then the claim that such harm should be attributed entirely to the modifications to Section 230 is hardly self-evident. Misattribution is in fact a common mistake. When you dive into stories about a government report implying that fosta is ineffective, or about judges who are concerned that fosta violates the First Amendment, you will find that those stories actually revolve around the anti-prostitution law in fosta.
Case in point, Adam Kovacevich, a Big Tech lobbyist who previously worked for Google, used the government report’s findings to argue that fosta is a “cautionary tale before Congress embarks on any more Section 230 carveouts.” If you actually read that report, though, it only studies fosta’s new anti-prostitution law—not fosta’s changes to Section 230.
What Schoolhouse Rock Does (and Does Not) Teach
How did we get here? Originally, there were two bills: fosta in the House of Representatives, and sesta (the Stop Enabling Sex Traffickers Act) in the Senate. (Only fosta was enacted into law, but since sesta was merged into fosta, the law is also known as fosta-sesta.) The original versions of fosta and sesta had some differences, but they both aimed at one key goal: both bills amended Section 230 so that victims could sue when tech companies violate federal sex trafficking laws. Such lawsuits were already allowed in the offline world, where Section 230 does not apply. Neither bill, in their original versions, created a new anti-prostitution law.
The motivation for these proposals was straightforward, arising out of a lawsuit against Backpage, a now defunct classified ads site. Three child victims who were trafficked on Backpage—one of whom had been raped over a thousand times—sued Backpage, alleging that the site had violated federal sex trafficking laws. In 2016, the judge conceded that the victims made a “persuasive case” that “Backpage has tailored its website to make sex trafficking easier,” but he dismissed their lawsuit on the grounds that Section 230 barred such suits.
The judge also said that “the remedy is through legislation, not through litigation.” And Congress did exactly that. The final version of fosta carved federal sex trafficking laws out of Section 230; victims can now sue. Since then—and contrary to claims that fosta is ineffective—sex trafficking victims have used fosta to pursue lawsuits against Twitter, Facebook, and Pornhub.
So how did we end up with an anti-prostitution law in fosta, even though it was not in the original version of fosta or sesta? To understand how, let’s follow fosta’s journey in committee. As anyone who has watched Schoolhouse Rock can attest, after a bill is introduced in the House, it will be referred to a committee. Usually, the members of that committee must vote to approve the bill—often with some amendments—before the entire House can consider it. After Representative Ann Wagner (R-MO) introduced fosta on April 3, 2017, it was referred to the House Judiciary Committee.
While the Big Tech companies generally opposed fosta and sesta, lobbying against an anti-trafficking bill is a reputational risk even for them. On these sorts of bills, they will often lobby indirectly through a trade association, such as NetChoice or the (now defunct) Internet Association. The Big Tech companies will also fund various other advocacy and nonprofit groups, and then use those groups to launder their own views. For example, Engine, an advocacy group for start-ups, lobbied vigorously against fosta. Later, an investigative report revealed that Engine was funded by Google and run by ex-Googlers.
Still, after the Backpage lawsuit, Congress had to do something. So the Big Tech companies argued that Congress should instead do something other than reform 230—anything else—as long as victims could not sue the tech companies. On October 3, 2017, the House Judiciary Committee held a hearing about online sex trafficking and Section 230. In their written testimony, NetChoice suggested several possible alternatives to fosta that will “will be faster than changing the law, more effective, and less prone to unintended consequences.”
One of those proposed alternatives caught on: amending the Travel Act. The Travel Act is a law that targets criminals who cross state lines in order to carry out certain types of illegal behavior. The proposed amendment added enhanced penalties for those who organize commercial sex traffic where the victim was either underage or coerced into performing sex acts.
As the Schoolhouse Rock lyrics go, “I’ll sit here and wait, while a few key congressmen discuss and debate.” Lobbying while a bill is in committee is much simpler; in many cases, you only need to convince a few key people. And since Republicans controlled the House at the time, those key people were Republicans. Thus, one can imagine how a proposal to amend the Travel Act evolved into a proposal to amend the Mann Act; the Mann Act contains federal criminal laws for prostitution.
Anyone who has worked in the tech industry knows that most of these companies lean very heavily to the Left, and many employees in that industry passionately support “destigmatizing” sex work. But while the Big Tech companies frequently engage in social activism—often at the behest of their employees—in this case they decided to sell out the sex workers, so long as it meant that sex trafficking victims could not sue.
On November 8, 2017, a staffer on the House Judiciary Committee sent an email that was likely intended for tech lobbyists, but it mistakenly reached other recipients. It outlined changes to fosta, claiming these changes “will sufficiently protect your clients from criminal and civil liability, while permitting bad actors to be held accountable.” Advocacy groups noted that the language of these changes had some peculiar similarities to the language of NetChoice’s proposal to amend the Travel Act.
On December 12, the House Judiciary Committee considered and voted to approve this new version of fosta. The new version—which was essentially a full replacement—amended the Mann Act, creating a new crime for running websites with the intent to promote or facilitate prostitution. It also removed the changes to Section 230 that would let victims sue. (It still contained some minor changes to Section 230 for state law enforcement; those changes were far less concerning to the tech industry.)
Victims, their advocacy groups, and many others were understandably outraged. Mary Mazzio, the filmmaker who made I Am Jane Doe—a documentary about online sex trafficking and Backpage—said, “This new amendment is harmful to the rights of victims. In the words of one Jane Doe attorney: ‘This current amendment is worse than no bill at all for survivors.’”
NetChoice, however, had magically changed its tune. On National Human Trafficking Awareness Day, NetChoice wrote a statement enthusiastically endorsing the revised fosta. In it, they claimed that “opposition to fosta is being drummed-up by trial bar lawyers who want the big payoffs that come from settling private lawsuits.” That’s a curious way to describe the Jane Doe lawyers.
Now that the revised fosta had passed out of committee, what would happen when the entire House considered it? When many envision Congress, they imagine all 435 members of the House on the floor together, openly debating and proposing changes to bills. The reality is starkly different. For many bills, the House spends an hour debating in a mostly empty room. At a later time, the entire House votes on that bill, but it is only an up-or-down vote; individual members cannot offer amendments.
One important thing that Schoolhouse Rock does not teach is the role of the House Rules Committee. In the House, bills must make an additional stop at this committee before they can go the House floor. (A separate process exists for uncontroversial bills, but those bills must pass with a two-thirds vote.)
The House Rules Committee is also known as the “Speaker’s committee”; it is how the Speaker of the House controls what happens on the House floor. This committee prepares a resolution—known as a rule—that controls the terms of debate for a bill. (After the House Rules Committee approves a rule, the entire House still must vote to approve that rule, but in practice, that step is a formality.)
Today, the most common type of rule is a closed rule, which allows one hour of debate and an up-or-down vote; individual members cannot offer amendments. The second most common type is a structured rule. It allows votes on amendments, but only if those amendments are approved by the “Speaker’s committee.”
The Big Tech companies obviously did not want any more changes to fosta. To accomplish this, they once again only had to convince a few key people; specifically, they had to convince the House Rules Committee to bring fosta to the floor under a closed rule.
Victims, however, did have some practical leverage with sesta. The Senate Commerce Committee also revised sesta before approving it, but the new version still amended Section 230 so that victims could sue when tech companies violate federal sex trafficking laws. The leading proponents of sesta on both sides of the aisle, Senator Rob Portman (R‑OH) and Senator Richard Blumenthal (D-CT), also criticized the rewrite of fosta. And Representative Wagner, the creator of fosta, supported efforts to restore the parts of fosta that would let victims sue.
Moreover, the Senate’s changes to sesta convinced both the Internet Association and Facebook to defect and support sesta. During the Senate hearing on sesta, one parent delivered tear-jerking testimony on how her daughter was sex-trafficked on Backpage and then murdered. After that, the Internet Association delivered completely tone-deaf testimony about “frivolous lawsuits,” among other things. That incident may have played a role in the Internet Association’s change of heart on sesta.
As reports started circulating that the House may merge parts of sesta into fosta, NetChoice’s tune changed once again. They issued another statement opposing these possible changes. Their efforts were for naught this time, though. On February 26, 2018, the House Rules Committee adopted a structured rule. This rule would allow a vote on an amendment that would merge parts of sesta into fosta—including changes to Section 230 that would let victims sue. (This amendment did not touch the anti-prostitution law, though.) For the first time, the entire House would have a voice.
When fosta hit the House floor the next day, that amendment passed on a 308–107 vote, and the final bill passed on a 388–25 vote. On March 21, the Senate approved fosta on a 97-2 vote, and on April 11, the president signed fosta. Fosta was now the law of the land.
Some may ask: why didn’t Congress propose an amendment that lets victims sue—and also removes the anti-prostitution law? If the argument was that we should create an anti-prostitution law instead of letting victims sue, but we’re now going to let victims sue anyway, then why not remove that law?
In short, the anti-prostitution law had its own political coalition that supported it—a coalition that the Big Tech companies helped build. That coalition included Representative Bob Goodlatte (R-TX), chair of the House Judiciary Committee. If an amendment also removed the anti‑prostitution law, it would upset this coalition. Such a move would lose votes for that amendment and could sink it altogether. Thus, if you are a rational political actor who wants to ensure that your amendment passes—and that victims can sue again—then the correct move is to let the anti-prostitution law in fosta stand.
Congress is not a united hivemind. It is an amalgam of 535 legislators who represent different regions and have different motivations. Some critics have described the final version of fosta as the “worst of both worlds.” Yet when you understand how Congress works, you will understand that the changes to fosta here were the result of rational actors making rational political moves.
Despite endorsing an earlier version of fosta that included an anti-prostitution law, NetChoice subsequently insisted that such legislation could cause grievous harm to sex workers. In 2019, NetChoice endorsed the SAFE Sex Workers Study Act, which would study the unintended consequences that fosta had on sex workers.
The lobby’s actual motivations, however, were quite transparent. A statement from Carl Szabo, NetChoice’s vice president and general counsel, read, “Sesta/fosta is the first and only amendment to Section 230, so Congress must understand how much damage sesta/fosta caused before it considers further amendments to Section 230.” Szabo, of course, did not mention fosta’s new anti-prostitution law, which would be the obvious culprit here. NetChoice was trying to cover up its role in creating that law. Instead, they (and other tech lobbyists) pinned the blame on fosta’s changes to Section 230.
What If We Could Redo FOSTA?
If we could have a do-over for fosta, what should we do? Ideally, the problem with Backpage would have been nipped in the bud; Section 230 also blocked another lawsuit against Backpage in 2011. Revisiting this lawsuit is instructive. The victims sued Backpage for violating multiple federal laws for trafficking, and for violating multiple federal laws for child sexual exploitation. Even if fosta had been the law of the land in 2011, it only would have carved one of those violations out of Section 230.
These limitations of fosta would continue to rear their head. In 2021, a judge ruled that a sex trafficking claim against Twitter could proceed—thanks to fosta—but the child pornography claim was still barred by Section 230. And while boys are also victimized by human trafficking, in their case it tends to be labor trafficking; federal labor trafficking laws are not carved out of Section 230.
Thus, if we could redo section 4 of fosta, which amends Section 230, we should carve out more federal laws—namely, all federal laws for human trafficking and child sexual exploitation. More precisely, we should carve out sections 1595 and 2255 of Title 18—without any limitations. (There would also be changes for state laws, but analyzing those is beyond the scope of this piece.) Likewise, we should similarly broaden the scope of section 6, which lets state attorneys generals sue on behalf of victims.
On the flip side, many reasonable critiques of fosta—including that unfavorable government report—actually criticize its changes to the U.S. criminal code, not its changes to Section 230. Thus, if fosta were redone, a reasonable concession would be to axe the anti-prostitution law in section 3.
The typical use case for Section 230 goes like this: Jack writes a defamatory tweet about Jill. Jill sues Jack, and she also sues Twitter for hosting the tweet. Section 230 bars the lawsuit against Twitter. In this case, and in other cases of tort liability, the standard talking points for Section 230 are persuasive.
The 2016 lawsuit against Backpage, however, brought widespread attention to another use case: A tech company violates a federal law. This federal law lets victims sue. But when victims sue, their lawsuit is barred by Section 230. Here, the standard talking points for Section 230 fall apart—as evidenced by the Internet Association’s disastrous attempt to complain about frivolous lawsuits in the sesta hearing. As we move forward, we need to take a much harder look at how Section 230 lets tech companies evade accountability for violations of federal laws.