*Nicole Romero

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) has been a groundbreaking piece of legislation in regards to its impact on the heinous crime of sex trafficking that has skyrocketed within the United States in recent years.[1] It is predicted that the legislation will have many positive consequences, including bringing relief and closure to victims of sex trafficking and their families. Moreover, it is predicted that FOSTA will work substantially well in deterring potential sex traffickers from engaging in such criminal conduct over the internet.[2]

However, it is undeniable that the legislation is not without its faults. Firstly, the legislation is predicted to have significant negative effects on not only victims, but also law enforcement. With the shutdown of famous trafficking websites like Backpage, sex traffickers will turn to more dangerous and less reliable means in exploiting sex trafficking victims.[3] Further, websites like and including Backpage were often the only tools law enforcement had in tracking down offenders or victims.[4] Thus, without an internet presence, the likelihood of catching sex traffickers and rescuing victims still being trafficked online significantly drops.[5]

Second, FOSTA is almost certain to put websites, internet service providers, and technology companies within the scope of the “moderator’s dilemma.”[6] The legislation creates the moderator’s dilemma by forcing such entities to take one of two extreme stances by either: (1) ceasing all monitoring of their website for sex trafficking, or (2) excessively over-monitoring their website for sex trafficking.[7]

An entity choosing to respond to FOSTA by ceasing all monitoring of its website for sex trafficking will likely do so in response to the cost and difficulty of monitoring online sex trafficking and the fear of litigation. This approach to FOSTA will only render current sex trafficking laws even less effective than before the legislation was enacted. Contrastingly, other entities may respond to FOSTA by excessively over-monitoring their websites.[8] This approach is also dangerous as it may cause machine-learning algorithms to block anything related to sex over the internet, rather than just sex trafficking content.[9] Moreover, over-monitoring will further endanger sex trafficking victims, as it will prevent pimps from screening for safe clients and thus, offering the victims to whomever is willing to pay.[10]

As such, it is clear to see why the two most likely approaches to FOSTA create problems beyond that of which the legislature anticipated. To remedy this situation, courts ought to adopt a narrowly tailored reading of the knowledge requirement described in FOSTA. Thus, courts should interpret the “knowingly” standard of FOSTA to mean that the defendant either: (1) actually knew of sex trafficking occurring on the site, or (2) “should have known if it acted with reasonable care or diligence.”[11] Such an interpretation of FOSTA’s “knowingly” standard will prevent websites caught within the scope of the moderator’s dilemma from either ceasing all monitoring or over-monitoring out of fear they will be found to have “known” of sex trafficking taking place on the site by third party users.

*J.D. Candidate, 2020, FIU College of Law.

[1] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865, 115th Cong. (2018).

[2] Nitasha Tiki, How a Controversial New Sex-Trafficking Law Will Change the Web, Wired (Mar. 22, 2018, 6:00 AM), https://www.wired.com/story/how-a-controversial-new-sex-trafficking-law-will-change-the-web/.

[3] Taking a Closer Look at FOSTA, Ohio St. U.: Global Human Trafficking Blog (Apr. 21, 2018, 1:38 AM), https://u.osu.edu/osuhtblog/2018/04/21/taking-a-closer-look-at-fosta/.

[4] Id.

[5] Id.

[6] Tiki, supra note 2.

[7] Section 230 as First Amendment Rule, 131 Harv. L. Rev. 2027, 2044 (2018).

[8] Tiki, supra note 2.

[9] Danielle Citron & Quinta Jurecic, FOSTA: The New Anti-Sex-Trafficking Legislation May Not End the Internet, But It’s Not Good Law Either, Lawfare (Mar. 28, 2019, 2:41PM), https://www.lawfareblog.com/fosta-new-anti-sex-trafficking-legislation-may-not-end-internet-its-not-good-law-either.

[10] Laura LeMoon, Trump Just Signed Legislation that Could Be Deadly for Sex Workers Like Me, Huffington Post (Apr. 15, 2018, 8:31 AM), https://www.huffingtonpost.com/entry/trump-just-signed-two-new-laws-that-could-be-deadly-for-sex-workers-like-me_us_5ad0d3bce4b077c89ce82afa.

[11] Lydia Pallas Loren, Deterring Abuse of the Copyright Takedown Regime by Taking Misrepresentation Claims Seriously, 46 Wake Forest L. Rev. 745, 772–74 (2011).