FOSTA-SESTA

The statute commonly called FOSTA-SESTA created the first statutory exception to Section 230 immunity since the law’s enactment in 1996. Only one bill was enacted: H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), signed as Public Law 115-164 on April 11, 2018. The Senate’s Stop Enabling Sex Traffickers Act (SESTA, S. 1693) was never enacted on its own; the Section 230 amendment it proposed was folded into the House bill, and the combined name stuck.

What the Law Does

The law works through four distinct mechanisms, which are often conflated:

A new federal crime. Section 3 adds 18 U.S.C. § 2421A, making it an offense to own, manage, or operate an interactive computer service with the intent to promote or facilitate the prostitution of another person. An aggravated violation — promoting or facilitating the prostitution of five or more persons, or acting in reckless disregard that the conduct contributed to sex trafficking under § 1591 — carries a higher penalty. The section provides an affirmative defense where the promotion or facilitation of prostitution is legal in the jurisdiction targeted.

A new civil recovery, limited in scope. Section 2421A(c) allows any person injured by an aggravated violation of § 2421A(b) to recover damages and attorneys’ fees. This is a narrow cause of action tied to the new offense.

A Section 230 carve-out. Section 4 adds 47 U.S.C. § 230(e)(5), providing that Section 230 does not impair civil claims brought under 18 U.S.C. § 1595 where the underlying conduct violates the federal sex trafficking statute, § 1591, nor state criminal charges for conduct that would violate § 1591 or § 2421A. Section 4(b) makes this amendment applicable regardless of when the underlying conduct occurred.

A state enforcement action. Section 6 adds 18 U.S.C. § 1595(d), letting a state attorney general sue as parens patriae on behalf of state residents affected by a violation of § 1591.

What the Law Did Not Do

FOSTA did not create the private civil right of action for trafficking victims. That remedy is 18 U.S.C. § 1595(a), added by the Trafficking Victims Protection Reauthorization Act of 2003 (Pub. L. 108-193) and broadened in 2008. What FOSTA changed is that Section 230 can no longer be raised as a defense to a § 1595 claim when the underlying conduct violates § 1591.

The law also treats sex trafficking and prostitution as separate categories. The Section 230 carve-out for private civil claims is keyed to § 1591 sex trafficking — conduct involving force, fraud, coercion, or minors. The prostitution provisions in § 2421A are a separate criminal scheme with their own affirmative defense, and they reach the Section 230 carve-out only for state criminal prosecutions where promotion or facilitation of prostitution is illegal in the jurisdiction targeted.

Platform Responses

Documented platform responses included:

• Craigslist shut down its personals section
• Reddit removed four communities — Escorts, Male Escorts, Hookers, and SugarDaddy — early on March 22, 2018, hours after the Senate passed the bill. Reddit’s stated basis was a revision to its content policy prohibiting transactions in certain goods and services, including paid services involving physical sexual contact; the company did not cite the legislation

Ongoing Debates

• Effectiveness at combating trafficking versus effects on consensual adult industry workers
• Impact on free speech and legitimate online communities
• Precedent for future Section 230 carve-outs
• Questions about platform liability standards