The Fight Online Sex Trafficking Act (FOSTA) was signed by President Trump on April 11 after passage by large majorities in the House and Senate. FOSTA amends Section 230 of the Communications Decency Act enacted in 1996 to extend broad immunity to websites from civil liability and from state criminal prosecutions.
The action was a sweet victory for Ropes & Gray attorney John Montgomery ’75, whose lawsuits on behalf of child victims helped spur Congress to act (BC Law Magazine, Summer 2017).
The amendment creates an exemption from immunity for civil actions under the federal Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), as well as from criminal actions by state prosecutors under statutes identical to the TVPRA. In addition, the amendments include parens patriae authority for state attorneys general to bring civil actions in federal court on behalf of injured persons in each state. The statute contains express findings that Section 230 was never intended to immunize criminal conduct by a website that facilitates the unlawful trafficking of children and others.
“These developments will ensure that the government and victims have better tools to combat this form of exploitation inthe future.” —John Montgomery ’75
The legislative history and debates make clear that the amendment was intended to reverse the ruling of the First Circuit Court of Appeals in the action brought by three plaintiffs represented by a Ropes & Gray team against Backpage.com in which the court held that Section 230 was so broad that even criminal violations of the TVPRA were exempt.
The litigation in the First Circuit as well as a US Senate investigation of Backpage.com were highlighted in the documentary film I Am Jane Doe (available on Netflix). The Department of Justice seized Backpage.com and indicted its principal owners and a number of executives just days before FOSTA was signed, and the CEO and the company have now pleaded guilty to conspiracy to facilitate sex trafficking and money laundering.
“These developments will ensure that the government and victims have better tools to combat this form of exploitation in the future,” said Montgomery. “It is gratifying for Ropes & Gray that the criminal proceedings confirm our original claims that Backpage.com was an active criminal enterprise attempting to use the federal immunity statute to shield their wrongdoing.”
Photography courtesy of the film I Am Jane Doe