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August 29, 2018

What FOSTA SESTA Means for Product Leaders

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For the product leaders at online marketplaces and social platforms, the boogeyman has taken on a new form: FOSTA-SESTA. The bills, which were officially signed into law on April 11, 2018, started off with good intentions: eliminating sex trafficking online. Since then, lot of discussion has occurred due to the new law - the ethics, the impact it will have on the internet, and the loopholes already being taken advantage of by some organizations. Plus, months into its implementation, questions have arisen about its effectiveness at actually curbing sex trafficking at all.

Despite all this, every company that enables people to upload their own content or products for sale (aka user-generated content/UGC) will need to understand FOSTA-SESTA and how to best protect themselves and users. In this article, we’re going to focus in on the real impact it’s having on businesses already and will look at the larger trend the new law is part of.

What does the law actually say?

FOSTA-SESTA is actually two bills: Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). The specific section of the law causing controversy is § 2421A (a):

Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.

What does this mean?

Basically, this puts responsibility on website owners for the actions of their users. In this case, if a company is aware that people use their website for sex trafficking, they are now liable. Previously, under Section 230 of the Communications Decency Act, website providers were given immunity from information or content published by users:

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.

FOSTA-SESTA changes this, and now website owners can no longer claim immunity from the effects of user created content.

What has been the impact?

Screen Shot 2018-08-29 at 11.16.17 AMImmediately after the law took effect, Craigslist took down their “Personals” section. Now, when you navigated to this section, you were met with the following statement:

US Congress just passed HR 1865, 'FOSTA', seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day. To the millions of spouses, partners, and couples who met through craigslist, we wish you every happiness!

Today, you now just get a 404 error. 

When it comes to social platforms, investors are getting nervous about the future implications of the new law. According to Inc:

Investors plan to challenge Twitter, Facebook, and Alphabet, Inc. (Google) at their upcoming annual meetings and demand "detailed reports on the scope of platform abuses, and full disclosure of practices to curb risks posed by recent content management controversies [because] industry leaders are being held increasingly accountable by lawmakers on key issues such as election interference, fake news, and hate speech [and] all these issues can have a direct impact on companies' finances, operations and reputation.

One of the biggest impacts here that online marketplaces and social platforms will likely see is the even more vital need for moderation. Moderation has gone from a nice-to-have in order to avoid any awkward or negative experiences by users to being a necessity to remain in business. However, the cost impact of investing in human moderation is insurmountable for many, not to mention potential human rights issues when it comes to subjecting people to truly heinous imagery. This is why many platforms and marketplaces are turning to artificial intelligence to moderate and manager their content. To learn more, check out the ROI of AI: The Business Impact of Computer Vision bundle here for a guide to how businesses are using computer vision today along with a ROI calculator to measure the monetary impact! 

Looking to the future:

There is a possibility that the bill will be repealed. The Electronic Frontier Foundation (EFF) is suing to invalidate FOSTA, arguing that its broad scope violates the First Amendment. The EFF is also asking for the court to suspend enforcement of FOSTA while the case is ongoing, but no new changes have been announced.

Despite this, you’d be remiss to completely write off the implications of the law (even if it ends up being reversed). Conversations around the need for moderation on the internet have been increasing over the years with platforms that once prided themselves on no moderation like Twitter and Reddit now having to deal with everything from harassment to copyright claims to illegal or grotesque imagery.

Likely, this is just the first of many bills that are looking to put the burden of responsibility on the website itself. In the UK, lawmakers are looking at a bill very similar to FOSTA-SESTA already. In the US, there is concern that FOSTA-SESTA could be just the beginning of exclusions from Section 230 immunity, such as copyright infringement (especially with its support from major film studios) and terrorism content. In an interview with Vox, EFF activist Elliot Harmon said:

That’s clearly been a theme that has come up again and again: How can Congress shift more liability onto platforms to have them spend more time policing their users’ speech? That is definitely a concern, and I wouldn’t be surprised if you start seeing bills like that.

The internet is growing up, and with that comes some complex and difficult conversations around moderation vs. censorship and liability when so much content is being published at such an immense rate.


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