Policy Brief: FOSTA, Section 4
In the spring of 2018, a legislative package containing two bills, the Stop Enabling Sex Traffickers Act (SESTA) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), was passed by Congress and signed into law by President Trump. There are three major implications of FOSTA that threaten consensual sex workers and the public at-large which must be challenged. First, FOSTA threatens free speech and Internet rights by criminalizing the protected speech of those who advocate for and provide resources to consensual sex workers. Second, it penalizes website operators for sexual content shared by their users while removing the government’s ability to detect when instances of sex trafficking occur. Third, it additionally threatens due process by stating that anyone found in violation of the law can be prosecuted for instances that occurred before the law’s adoption. (Grant, 2018, March 14).
Given the complexity of the policy, this brief will focus on Section 4 of FOSTA only. It will provide an overview of the history of anti-sex trafficking and anti-prostitution policy as well as an overview of Section 4 of FOSTA. This brief will provide an analysis of the policy tools used, an explanation of FOSTA’s progress through the policy process, and a breakdown of key stakeholders involved in the policy subsystem. It will explore policy process theories as well as theories of power and domination as they relate to FOSTA. The paper will close with an engagement plan which focuses on reframing the policy problem and offering alternative policy solutions. Engagement efforts should focus on building a broad coalition of supporters to reframe the policy problem and to pressure legislators and the judicial system.
History of Anti-Sex Trafficking and Anti-Prostitution Policy
According to a report from the Congressional Research Service (2015), sex trafficking has primarily been treated as a state issue. However, when commercial sex enterprises that use underaged or coerced victims occur in interstate or transnational contexts, such activity can be prosecuted as a federal crime under Section 1591, Title 18 of the United States Code (U.S.C.). Section 1591 is titled “Sex trafficking of children or by force, fraud, or coercion” and U.S.C. Title 18 is the primary criminal code for the federal government.
Additionally, the Mann Act of 1910 made prostitution and unlawful sexual activities that occur across state lines a federal crime. The Mann Act included three important sections under U.S.C. Title 18: Section 2421 outlaws knowingly transporting an individual for the purposes of prostitution or other unlawful sexual activity; Section 2422 outlaws coercing or enticing an individual to engage in prostitution or unlawful sexual acts; and Section 2423 outlaws transporting children for the purposes of prostitution or other unlawful sexual purposes and includes a subsection on engaging in such activity for profit. There is some overlap between Section 1591 and the Mann Act and in some circumstances accused parties may be prosecuted for violating both (Doyle, 2015, pp. 2–28).
FOSTA’s author, Ann Wagner, authored the Stop Advertising Victims of Exploitation Act of 2015 which was signed into law. This bill amended U.S.C. Title 18 to include a penalty for knowingly selling advertisements for commercial sex (Wagner, 2014, February 27).
According to the Center for Health and Gender Equity, non-governmental organizations interested in receiving funds from the federal government for work which combats HIV/AIDS or human trafficking are required to explicitly oppose prostitution through the Anti-Prostitution Loyalty Oath (2015, August). Taking the Anti-Prostitution Loyalty Oath means that these organizations cannot work with sex workers to support their health, safety, or empowerment (Freedom Network USA, 2015, p. 2).
Description of FOSTA, Section 4
Historically, Section 230 of the Communications Decency Act of 1996 (CDA) has protected website operators from being held liable for the content their users share on their websites through safe harbor protections. These protections have provided a basis for the preservation of free speech over the Internet for over two decades. However, Section 4 of FOSTA, titled “Ensuring ability to enforce federal and state criminal and civil law relating to sex trafficking,” includes two subsections which establish exemptions on website operators from the safe harbor protections in Section 230 of the CDA while expanding prosecution power from the federal government to state attorneys general.
Section 4(a) of FOSTA amends Section 230 of the CDA to specify that the CDA does not limit federal civil or criminal prosecution for activity that constitutes sex trafficking and also does not limit state criminal prosecution for activity that constitutes the promotion or facilitation of the prostitution of another person. This means that website operators will be held liable if users of their site violate U.S.C. Title 18, Section 1591 or Section 2421A. U.S.C Title 18, Section 1591 is existing legislation that criminalizes the sex trafficking of children or by force, fraud or coercion while Section 2421A is new legislation established by Section 3 of FOSTA, titled “Promotion or facilitation of prostitution and reckless disregard of sex trafficking.” The former deals with abusive and non-consensual sex trafficking while the latter deals with prostitution in general while conflating it with non-consensual sex trafficking.
Section 4(b) of FOSTA allows prosecution against those found in violation of the amendments made in Section 4(a), regardless of when the conduct occurred, including instances which occurred before the amendment was passed (115th Congress, 2018, March 21).
Defining the Policy Problem: Sex Trafficking vs. Consensual Sex Work
FOSTA takes existing legislation related to abusive and non-consensual sex trafficking and merges it with new legislation criminalizing consensual sex work in general as long as prostitution is also illegal in the state where the act(s) occurred. U.S.C. Title 18, 2421A(a), made law by Section 3 of FOSTA, clarifies that “interactive computer services” are considered a means through which interstate and foreign commerce can occur. Additionally, this new subsection criminalizes the “intent to promote or facilitate the prostitution of another person” (115th Congress, 2018, March 21).
Legislation implemented under the Mann Act, including Section 2421, used the word “purpose” to criminalize the transportation of individuals for the purposes of prostitution or other unlawful sexual activity in interstate or transnational contexts (Doyle, 2015, pp. 16–17). The difference in phrasing between U.S.C Title 18, Section 2421 and its new subsection 2421A may sound subtle but is in fact a radical change to the way the law interprets trafficking while also expanding the avenues available to the government to assign guilt for prostitution offenses.
Through FOSTA, the policy problem has been framed in such a way that commercial sex and other unlawful sexual activity have been associated with abusive and non-consensual sex trafficking. This framing has translated into law that conflates both activities with one another when these issues should be treated separately. Deliberate engagement with the issue of sex trafficking of children or coerced and abused adults raises important questions about the solutions provided through FOSTA, which now makes it harder to identify and track when sex trafficking is actually occurring by forcing such activity offline.
Justifications for Government Intervention
According to the Constitutional Authority Statement associated with FOSTA, Representative Ann Wagner claims that Congress has the power to enact the legislation based on Amendment XIII, Amendment XIV, and Article I, Section 8, Clause 3 of the United States Constitution. Amendment XIII, Section 1 provides Congress with the authority to develop legislation that ensures the absence of slavery or involuntary servitude; Amendment XIV ensures due process and equal protection of the law; and Article I, Section 8, Clause 3 grants Congress the authority to regulate interstate, transnational, and tribal commerce (Wagner, 2017).
Analysis of Policy Tools
Policy tools are utilized by the government to get people to do things they might not otherwise do without intervention. They are political in nature because they are utilized to change the power relations within a policy network (Bekkers, et al., 2017, pp.146–148).
The rational perspective is a useful framework for choosing policy tools because it encourages actors to assess the strengths and weaknesses of available instruments. Utilizing the rational perspective when choosing policy tools also encourages the analyst to consider the context within which they will be applied and to whom. The three families of policy instruments defined by the rational perspective are legal, economic, and communicative. In the case of FOSTA, the legal family of policy instruments is being employed to set legal norms related to sex work and the consequences for engaging in commercial sex. Target populations are obligated to abide by these legal norms and perform the government’s preferred behavior (Bekkers, et al., 2017, pp. 144–145). The specific institutional tools leveraged in the case of FOSTA, Section 4 are the U.S. Constitution and public law. As mentioned in the previous section, the Constitution is being used to justify government intervention as it pertains to Congress’s authority to intervene in matters of slavery, commerce, and due process. Federal criminal code is being used to expand prosecution power from the federal government to state attorneys general for those found in violation of existing law, Section 230 of the CDA, also amended by FOSTA. These laws expand the definition for what is considered sex trafficking to encompass the types of activities that purportedly promote and facilitate sex trafficking. Further, FOSTA, Section 4 creates an exemption from Section 230 of the CDA by holding website operators liable for their users engaging in the outlawed activity on their sites.
However, if policymakers are serious about the issue of online sex trafficking, they would do well to recognize the usefulness of Information and Communication Technologies (ICTs) in achieving their desired outcome. By leveraging public law as a policy tool to hold third parties accountable for the actions of another which occur online, the government is ignoring its ability to detect instances of sex trafficking which can be better discovered by observing patterns of online activity (Bekkers, et al., 2017, p. 150). Considering the policy tools used here and the results that can be expected from using those tools, it seems likely that the policy entrepreneurs responsible for passing FOSTA may be more interested in banning sexual expression online than stopping sex trafficking.
Progress through the Policy Process: FOSTA’s Rise
FOSTA’s author, Ann Wagner, is a Republican and U.S. House representative for Missouri’s second congressional district. She says she first became aware of the issue of sex trafficking while serving as U.S. Ambassador to Luxembourg in the mid-late 2000s. Shortly after her election to Congress in 2012, Wagner began shaping a problem definition for the issue of sex trafficking. In a statement from 2014, she blamed classified advertising websites like backpage.com of knowingly participating in the sexual slavery of children (Wagner, 2014, February 27). Wagner can be considered a policy entrepreneur for anti-sex trafficking policy because she has worked to significantly change the way the government has intervened with the issue. Her work defining the policy problem to be specific about sex trafficking as abuse against children and assigning blame to website operators has been effective in suggesting there is a crisis at hand that can be resolved (Mintrom & Norman, 2009, pp. 164–165).
In 2015, Wagner’s problem definition of sex trafficking was legitimized with the passage of the SAVE Act, a bill she authored that made the advertising of another person for sex a crime. In 2016, as a result of legal challenges related to the prosecution of backpage.com for violating the SAVE Act, the D.C. District Court confirmed that the SAVE Act requires proof that accused website operators knew the person being advertised on their site was being trafficked (Cope, 2015, January 29).
With the policy issue thrust onto the political agenda, Wagner set out to draft new legislation, what would become FOSTA, to address the judicial system’s decision in the case against backpage.com. In a statement published a month before the SESTA-FOSTA package was signed into law, Wagner blamed Section 230 of the CDA for protecting website’s from prosecution for facilitating sex trafficking (Wagner, 2018, February 26). FOSTA, Section 4 removed those safe harbor protections.
Wagner’s work to remove the safe harbor protections from Section 230 of the CDA following the court’s decision is when FOSTA entered the policy formulation stage of the policy process. The bill went through a series of amendments in the House and Senate before it passed in Congress in March, 2018 and was signed into law by President Trump in April, 2018. FOSTA is set to be enforced beginning in January 2019. Information on an implementation plan for FOSTA or it’s sibling bill, SESTA is not publicly available. Opponents of FOSTA are actively analyzing and evaluating the validity of the policy, even before its implementation.
Descriptions of Stakeholders
Supporters of FOSTA include anti-sex work groups, anti-trafficking services, conservative religious groups, some women’s rights groups, Republicans, and prominent technology companies primarily represented by the Internet Association. Specific supporters of interest with substantial influence include Facebook’s Chief Operating Officer, Sheryl Sandberg; current First Daughter, Ivanka Trump; and film director Mary Mazzio who produced a PSA in support of the legislation, #IAmJaneDoe, featuring influential liberal celebrities like Amy Schumer and Seth Meyers. (Grant, 2018, March 14).
The interests of those in support of FOSTA range from wanting to remove porn from the Internet, to protecting trafficking victims, to protecting traditional family values (Masnick, 2017, October 2). Their preference is that the legislation remains in statute and is enforced. The rationale of supporters tends to rely on a link between non-consensual sex trafficking and consensual sex work. Supporters also tend to view the problem as a systems issue, blaming website operators for participating in sex trafficking rather than focusing on individual perpetrators.
Many of these supporters are individuals with substantial capital who can be considered economic elites according to Martin Gilens and Benjamin Page. According to their work identifying the Economic-Elite Domination theory in action, they observe that elites tend to dominate the policy process. Gilens and Page note that the framers of the U.S. Constitution intended to protect private property and the economic interests of those with capital over the interests of the average worker (2014, pp. 566–567). While the motivations for supporting FOSTA among these economic elites vary, the majority of these actors hold substantial influence over the policy process as compared to those in opposition due to their economic positions in the social network.
Opponents who want to see this legislation undone include sex workers, sex trafficking survivors, sex educators, women’s health organizations, LGBTQIA organizations, and harm reduction activists who say sex workers will be at greater risk of abuse if forced offline. Opponents critical of Section 4 include free speech advocates and Internet rights groups like the Electronic Frontier Foundation who believe this legislation is about Internet censorship (Harmon, 2018, March 21). Further, institutional opponents such as the House Liberty Caucus and the Department of Justice (DOJ) have deemed the legislation unconstitutional because it retroactively allows states to prosecute activity that occurred before the legislation was passed and regulates prostitution broadly through criminal law which is prohibited by the 10th amendment (Grant, 2018, March 14). For the institutional actors in opposition, it is unclear whether or not they would support similar legislation if it were written less broadly and without threat to due process.
Stakeholder Roles, Leverages, and Influence
FOSTA’s supporters have played a prominent role in defining the policy problem of sex trafficking and a causal story which places blame on website operators for facilitating sex trafficking. They have been successful in leveraging their social networks and elite influence to spread their version of the causal story which has been used to justify FOSTA’s amendments to Section 230 of the CDA. While some legislators and the DOJ have voiced concern over the law, the legislative and executive bodies have largely played a supportive role throughout the policy process by passing FOSTA. Truman (1971) explained that it is possible for certain centers of power in government, in this case both the legislative and executive branches, to become the apex of hierarchy controls and thus achieve their desired policy outcomes (p. 46).
Opponents by comparison have had a harder time establishing a role or relative influence in the policy process. Opponents have been able to leverage their networks, which largely exist online, to share information about the legislation but seem to have little influence on the policy decision itself. Suggestions for leveraging policy tools and exerting influence in the policy process for opponents will be provided in a later section.
Understanding FOSTA through Policy Process Theories
This section will focus on the problem definition and agenda setting stage of the policy process because FOSTA’s passage through the formulation phase was straightforward, with minor amendments from Congress and quick approval from President Trump.
FOSTA’s supporters define the policy problem of abusive and non-consensual sex trafficking in such a way that conflates the issue with consensual sex work. This is especially problematic because the supporters’ problem definition has been embedded into the policy itself. As explained, the legislation allows the government to prosecute anyone found in violation of either Section 1591 or Section 2421A of Title 18 of the U.S.C, making no distinction between the offenses.
When assessing the problem of sex trafficking, there is no clear popular consensus on what the desired policy outcome should be. Sex workers and harm reduction activists assert that all workers deserve safe working conditions and that the criminalization of sex work puts workers in lethal danger. Meanwhile, some supporters of this legislation suggest that the existence of sex work and pornography is at least partially responsible for the existence of abusive and non-consensual sex trafficking. Other supporters, failing to acknowledge the economic and social factors that impact sex workers, take an under-analyzed systems view of the problem and assign blame to website operators for allowing sexual content that could result in commercial sex arrangements to be shared on their sites. Opponents of FOSTA not only want the SESTA-FOSTA package repealed, they likely want to see sex work decriminalized. Further, there is little certainty as to what causes abusive and non-consensual sex trafficking, what interventions will be successful in reducing the abuse, or what the effects of possible interventions may be. When there is a lack of clear moral benchmarks for what the result of government intervention should be, while there is also a lack of clarity on the cause, interventions, and their effects, such problems are considered untamed political problems (Bekkers, et al., 2017, pp. 83–85).
The process of defining a policy problem can best be understood through the political and cultural perspectives of public policy. The political perspective comes into play when different groups compete with each other to push their problem definition and proposed solutions onto the policy agenda. The cultural perspective focuses on the stories told to explain the policy problem which are used to assign blame, frame consequences of the problem, and construct the identity of the policy’s target population.
In the case of FOSTA, supporters have constructed the policy problem in such a way that assumes the target group who will benefit from the policy is only those who are non-consensual victims of sex trafficking. When assessing the social classification of target groups, the public perceptions of these groups and their power positions are considered. Victims of abusive and non-consensual sex trafficking can be understood as dependents because their public perception is positive and their power position is weak. However, another unnamed but certainly impacted target population of the policy is consensual sex workers. These workers would be considered deviants because their public perception is negative and their power position is weak (Bekkers, et al., 2017, p. 92).
Understanding FOSTA through Theories of Power and Domination
Suzanne Mettler and Joe Soss (2004) explain how the pursuit of specific policy solutions convey meaning to citizens about the underlying nature of a problem and shape their perceptions of the issue (p. 62). In the case of FOSTA, Section 4, the solution to the policy problem is to make website operators responsible for the content their users share. The underlying message, that website operators are to blame for abusive and non-consensual sex trafficking, is misleading and obscures the government’s ability to partner with website operators to track and prosecute actual perpetrators of violence.
Further, sensationalizing the issue by focusing primarily on the sex trafficking of children leaves no room to distinguish between non-consensual sex trafficking and consensual sex work. The conflation goes unaddressed because people are presented with a policy problem that characterizes the named target population as dependents in need of rescue, and most people feel uncomfortable questioning this definition. What happens is the unnamed target population, those who have chosen sex work as their profession or means of survival and those who choose to share sexual content online, lose their ability to share information or screen clients remotely. Website operators are forced to police these communities who are then subjected to greater risk of violence and loss of autonomy because they must screen clients in person or work with a third party to field new clients. This puts them at higher risk of physical danger and threatens their material livelihoods by forfeiting a cut of their pay in exchange for assistance booking clients.
Iris Marion Young (1990) explains the way violence against marginalized groups acts as a form of oppression and injustice by naming its systemic character. It is not single acts of violence themselves that are oppressive but the social context which makes such violence possible, acceptable, or expected (pp. 83–85). FOSTA utilizes the leverages of power afforded to those actors within the branches of government to exert control over consensual sex workers whose existence challenges the patriarchal and paternal nature of the state itself.
Sex workers defy what Young (1990) identifies as the bourgeois state’s moral division of labor which sees reason as masculine and sentiment as feminine. The rational culture of the bourgeois state allows men to connect with the body and affectivity only within the domestic realm (Young, 1990, p. 141). When people reject these proscribed social norms and determine ways of organizing their lives outside of the heteronormative and monogamous nuclear family, or find joy in their bodies and affective expression, it is read as a threat by the republican traditionalists who benefit from the existing power structure of the state and its laws. The designers of the U.S. Constitution intentionally excluded the laboring class from the civic public and conceived respectability as a republican virtue. These American republicans explicitly asserted the need for a homogeneous citizenry and framed groups identified with the body and affectivity as opposed to the nation itself (1990, pp. 141–142).
Young’s analysis offers an explanation for the state’s inherent hatred of sentiment and the body. She also explains that repressive violence, such as the implications of FOSTA for sex workers, is used intentionally as a coercive tool so that the ruling class can maintain its power (Young, 1990, p. 85). FOSTA’s supporters have drafted policy that intentionally harms an already vulnerable group of people in the name of reducing harm for another vulnerable group. Sex workers and their allies have done tremendous work to assert that FOSTA does nothing to end abusive and non-consensual sex trafficking. It is important that these points be understood and incorporated into a new policy solution which seeks to reduce harm for everyone.
Stakeholder Engagement & Advocacy Coalition Building
As identified in the stakeholder analysis portion of this brief, current opponents of FOSTA are not as affluent as its supporters. Sex worker collectives and their allies should begin a civic engagement process by first developing a broad coalition of supporters which individuals can plug in to and offer support. Obvious coalition members include FOSTA’s current opponents, sex workers, sex trafficking survivors, women’s health organizations, LGBTQIA organizations, harm reduction activists, and free speech and Internet rights advocates. Informed by Gilens and Page’s Economic-Elite Domination Theory, the coalition should target the Internet Association and other corporate Internet companies to gain more power because these potential allies have a stake in the fight and significant access to capital, and thus influence.
Fighting Back by Reframing the Policy Problem & Offering Alternative Solutions
To begin addressing the issue of sex trafficking and the impact FOSTA has on sex workers, opponents of the legislation must assert a new problem definition that distinguishes the difference between abusive and non-consensual sex trafficking and consensual sex work. Opponents must also explain how the legislation causes further harm to sex workers, creating a new problem for the already marginalized group, while doing nothing to stop perpetrators of abusive and non-consensual sex trafficking. Further, opponents should offer alternative solutions that better address the issue while not inflicting harm on other communities. This effort should focus on moving the policy from the implementation phase back to the agenda setting phase of the policy process.
Deborah Stone (1997) explains that society understands the social realm in terms of control and intent where causation is related to purpose. Causal stories are used as a framework to explain the distinctions between actions and consequences, and purpose and lack of purpose. These causal stories are typically embedded in policy problem definitions (p. 301). FOSTA’s supporters assert a problem definition that says sex work is a non-consensual practice and that the safe harbor protections formerly included in Section 230 of the CDA are to blame for abusive and non-consensual sex trafficking. To combat this narrative, opponents should assert a causal story that explains the harm this legislation inflicts on sex workers and the public at-large by heavily regulating their speech as it relates to sexual expression. According to Stone’s framework for understanding causal stories as policy problem definitions, when actions are purposeful and consequences are intended, the cause is intentional. Opponents must make the case that the legislators and other self-interested parties in support of the legislation are doing so to intentionally punish and harm sex workers.
One tactic for accomplishing this is by reducing the complexity of the policy problem so that its intended consequences can be fully articulated and understood. By splitting the problem up into smaller, more digestible problems, opponents of FOSTA can begin making the case that 1) there is an important distinction between victims of abusive and non-consensual sex trafficking and consensual sex workers, 2) website operators, consensual sex workers, and sexually expressive individuals are not to blame for the existence of abusive sex trafficking, 3) legislation to intervene on the issue of sex trafficking should focus on stopping those directly perpetrating the abuse, 4) the solution to make website operators liable for sexual content shared on their sites causes physical and material harm to sex workers while doing nothing to stop perpetrators of abusive and non-consensual sex trafficking, 5) partnering with website operators to track and stop perpetrators of this violence does a better job at intervening on the violence while reducing harm to other communities, and 6) a critique of sexism, bodily autonomy, and moral idealism should be expanded to articulate to the general population why sex work may be an appealing and liberating option for some workers.
Based on the power resource perspective of policy instruments, Christopher Hood developed a typology to describe policy tools as either effectors or detectors. Effectors are tools government uses to try to make an impact on society and detectors are tools used to gather information. An alternative use of policy tools as compared to what is leveraged through FOSTA would be for the government to use the detection tools of Information and Communication Technologies (ITCs), such as the ability to detect suspicious activity online in partnership with website operators. By refining these detection abilities through ITCs, government can stop individuals perpetrating violence while allowing sex workers access to safer working conditions and their autonomy (Bekkers, et al., 2017, pp. 148–150).
Utilizing Available Access Points and Leverages
By engaging a broad base of FOSTA’s opponents within a coalition, opponents can work together to use the various access points and leverages available to them to influence decision makers and the public at-large on the issue of sex trafficking and the harm FOSTA inflicts on consensual sex workers. When a dominant power source presents itself in the policy arena, opponents can exercise a balance of power, or countervailing power, by working together to call attention to the policy domain in question (McFarland, 2007, p. 55).
To begin, the coalition should utilize their platforms and communities to share their version of the policy problem and their proposed solutions. It is important to build a public narrative around these issues since there is little consensus among the public on what policy solutions should look like and there is a low certainty of knowledge about the implications of policy intervention. This narrative should frame the coalition’s proposed solutions as a necessary harm reduction measure so that decision-makers and the public at-large must reconcile the nature of sex trafficking and sex work with nuance. If the coalition is able to incorporate large corporate interests in the Internet Association or within the broader tech industry, the coalition might effectively force concessions from the government. This possibility exists given the government’s reliance, both economically and from a management perspective, on the technology this business sector produces.
If President Trump loses the presidency while FOSTA is still in place, the coalition could seek to repeal the legislation by lobbying Congress and asserting their own definition of the policy problem and their harm reductionist solutions to that problem. Laws can be repealed by a majority in Congress but require a president who won’t veto the action. While the 115th Congress passed FOSTA, the 116th Congress features more women and Democrats. This body may be pliable to the coalition’s desired policy outcome if given a new frame to understand the policy problem.
Another potential avenue for repealing FOSTA exists in judicial appeals. Stakeholders including the DOJ, the House Liberty Caucus, and Electronic Frontier Foundation have each questioned the constitutionality of FOSTA. The law appears to violate the First, Fifth, and Tenth Amendments of the Constitution. It violates the First Amendment by broadly punishing certain kinds of speech. FOSTA violates the Fifth Amendment because it is an ex post facto law that says it can prosecute on actions regardless of when they occurred, including before FOSTA was signed into law. Several plaintiffs challenged FOSTA on the grounds that it violates the First and Fifth Amendments of the Constitution, but that case was dismissed because a federal judge decided none of the plaintiffs had any standing to challenge the law’s legality (Gullo & Greene, 2018, September 25). The plaintiffs are currently assessing their options for further challenges. The House Liberty Caucus says FOSTA violates the Tenth Amendment because it is interfering with the states’ power to govern on issues not covered by the federal government through the Constitution (Brown, 2018, February 28). If anyone is prosecuted for violating the changes made through FOSTA then judicial challenges can be made.
The effort to challenge FOSTA will likely require a sustained effort because of the time it takes to build public consensus on how to intervene with sex trafficking, the congressional challenge’s reliance on having a sympathetic president in power who wouldn’t veto a repeal, and the glacial pace of the judicial system. Through the analysis of the policy problem, the policy tools used, and theories of power and domination detailed in this paper, it is clear that FOSTA’s author and many of its supporters have acted in bad faith. However slow the struggle may seem, when laws are passed that seek to cause harm to entire groups of people, the fight for justice becomes a moral imperative.
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