In a series of articles from aspiring future lawyers, a contributing author to vLex Justis, Jessica Derwent, explores the flaws with the FOSTA-SESTA legislation in the US. Their discussion focusses on how a ‘one size fits all’ approach to tackling social problems can have unforeseen consequences, drawing a parallel between FOSTA-SESTA and facial recognition cameras in the UK.
When internet law goes wrong: lessons the UK can learn from FOSTA-SESTA’s failure
1. FOSTA-SESTA’s Failure
On the 11th of April 2018, the trajectory of Internet law was radically altered by the introduction of FOSTA-SESTA in the United States. The Allow States and Victims to Fight Online Sex Trafficking Act (‘FOSTA’) and the Stop Enabling Sex Traffickers Act (‘SESTA’) amended section 230 of the Communications Decency Act of 1996. Section 230 was essentially a ‘loophole’ that prevented Internet service providers (ISPs) being liable for user-generated content and is cited as the safeguard for the maintenance of free speech on the Internet.
Since Trump signed FOSTA-SESTA ISPs, an umbrella term that includes sites such as Craigslist, Facebook and even Google, are liable for user-generated content that facilitates sex trafficking. Lura Chamberlain has described the change as ‘rescinding the near-categorical immunity that such sites had previously enjoyed for culpable hosted content – and to make intentionally hosting such material a federal crime.’ FOSTA-SESTA came in the wake of the infamous Jane Doe v Backpage.com case which garnered widespread public outrage and concluded with Backpage being seized by federal forces and forcibly shut down. Interestingly, the law that shut down Backpage was actually the Travel Act and not FOSTA-SESTA as many assume.
What they failed to foresee was the outcome of this new amendment to a long-standing internet law would neither decrease sex trafficking nor make the authorities more aware of potential sex trafficking victims. The options ISPs had were limited. Instead of creating a scenario in which ISPs employed bots and humans to carefully monitor their content they chose the less legally sticky options which were to a) suspend their service or b) censor their sites, thus reducing freedom of speech online. These options were an easy fix in order to comply with the law and avoid costly lawsuits.
The reality of FOSTA-SESTA is many consensual sex workers have been forced offline as their content breaches ISPs new policies. Sex workers could previously screen potential clients, something impossible to do on the streets, which is already an incredibly dangerous place for sex workers. Shockingly, in the month proceeding FOSTA-SESTSA’s enactment, thirteen sex workers were reported missing and two committed suicide.
The core reasons for FOSTA-SESTA’s failure is its overbreadth and ineffectiveness to tackle human trafficking. So far no victim of human trafficking or federal prosecutor has cited the recent law against an ISP. The larger legal issue it raises is whether it is either practical or good to introduce drastic technology and Internet law changes with the aim of preventing criminal activities. Put more concisely: Should governments limit the freedom of the internet in the pursuit of its evils? The simple answer is no, unless due care and consideration is given to the complexities of the Internet and the role of big tech in our society.
2. Close to home: The dangers of overly broad technology law in the U.K
Recently we saw the revelation that King’s Cross Station uses some sort of facial recognition technology to monitor its visitors and was planning on using more. This led to an outcry from human rights advocates and an investigation from the ICO who argued this infringed upon the public’s right to privacy. The argument from the Metropolitan police was that the technology only existed to catch criminals already on a database and that the measure would ‘ensure public safety’. The justification for mass state surveillance is usually to protect society from a criminal evil, a threat, and more often than not terrorism. According to Tom Bingham, we in the UK ‘have become the most closely monitored people in the free world’ – a fact I believe we should all be alarmed by.
What the King’s Cross example shares with FOSTA-SESTA is the justification of reducing criminal acts through censorship and mass surveillance. Law must be wary in its overbreadth and quixotic ‘one size fits all’ approach. Lawmakers must be careful in their attempt to protect the public from potential threats that they do not cause greater harm by infringing upon the human right to privacy and further jeopardizing the public’s anonymity, arguably a greater evil with a myriad of potential harms.
The UK must learn from the mistakes of the FOSTA-SESTA in the United States and be considerate of the multi-faceted effects of wide-ranging Internet laws can have on society. In particular, we must be careful of trading in our right to privacy for a supposedly safer society. We have to ask ourselves the difficult question of how fine a line exists between surveillance and oppression – and as the lessons of history show us, this line can easily be blurred.
Jessica Derwent is an aspiring lawyer with an interest in privacy and data law, and currently works in the consumer law department at Leigh Day. She studied English Literature at Durham University and after graduating she completed a Google News Initiative Fellowship. After which, she became increasingly interested in data, privacy, and the role of law makers in safeguarding against the dissolution of our privacy, further compounded by watching the cross-examination of Mark Zuckerberg. She has written for Legal Cheek’s Journal on internet privacy and plans on studying graduate law.
The views and opinions contained in this article are the author’s own, and do not represent the views of Leigh Day.
 Lura Chamberlain, (2019), FOSTA: A Hostile Law with a Human Cost, 87 Fordham L.Rev.2171.
 Nitasha Tiku, (4 June 2018 08:40pm), Feds Seize Backpage.com, Site Linked to Sex Trafficking, WIRED. <https://www.wired.com/story/feds-seize-backpagecom-site-linked-to-sex-trafficking/> Last accessed 06/12/2019.
 Lux Alpatraum, (1 May 2018), The Internet Made Sex Work Safer. Now Congress has forced it back into the shadows, VERGE. <https://www.theverge.com/2018/5/1/17306486/sex-work-online-fosta-backpage-communications-decency-act> Last accessed 07/12/2019.
 Del Valle, (25 Apr 2018) supra note 3; Caty Simon, On Backpage, TITS & SASS.
 Leo Kelion (3 Sep 2019), King’s Cross facial recognition plans revealed by letter, BBC NEWS <https://www.bbc.co.uk/news/technology-49564957> Last accessed 07/12/2019.
 Tom Bingham, (2010), The Rule of Law, Penguin Group, pp.156
 Ibid, pp.155
 A right to privacy is explicitly stated under Article 12 of the 1948 Universal Declaration of Human Rights: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation.’