The Electronic Frontier Foundation has sued to invalidate internet censorship law FOSTA, arguing that its broad scope violates the First Amendment. It filed suit yesterday in the District of Columbia, acting on behalf of several parties who have been affected by FOSTA: the nonprofit groups Human Rights Watch and Woodhull Freedom Foundation, non-sexual massage therapist Eric Koszyk, sex workers rights’ activist Jesse Maley, and the Internet Archive. As part of the complaint, it’s asking for the court to suspend enforcement of FOSTA — which took effect earlier this year — while the case is ongoing.
The Allow States and Victims to Fight Online Sex Trafficking Act (or FOSTA) is intended to prevent sex trafficking, but as the lawsuit notes, it “erroneously conflates online communications relating to sex work with prostitution, and treats prostitution as synonymous with trafficking.” The law makes websites liable for content that “promotes or facilitates prostitution,” and it’s theoretically aimed at sites that explicitly run sex trafficking operations.
But FOSTA’s scope is broad enough that an archival site like the Internet Archive could face liability for preserving sex work-related pages, and so could human rights organizations that support decriminalizing sex work. Meanwhile, people who offer legal sexual or non-sexual services (like massage) are losing advertising platforms, as sites like Craigslist shut down sections that might be seen as “facilitating” prostitution.
FOSTA was passed with overwhelming support in Congress, and there’s not a clear path to ending it through legislation; Suraj Patel, a New York congressional candidate who campaigned on FOSTA repeal, lost his primary election this week. However, the EFF argues that there’s clear evidence of an unconstitutional chilling effect on legal speech. It’s pushing for a preliminary injunction that takes effect no later than August, so that the Woodhull Freedom Foundation can publicize its annual Sexual Freedom Summit. A separate group — the Desiree Alliance, a coalition that supports the rights and safety of sex workers — already canceled its 2019 conference because of fears over FOSTA.