> Because of SESTA/FOSTA, Section 230 no longer provides immunity for websites or website infrastructure from civil or criminal liability with regards to knowingly hosting trafficking-related content
§230 explicitly never limited criminal liability, and arguably didn’t limit civil liability for knowingly distributing unlawful content (publisher liability, which it expressly prevents, applies without knowledge; distributor liability, which some courts have found it implicitly prevents as well [IIRC, only the 11th Circuit had ruled on this, at the federal appellate level] applies to knowing distribution).
And FOSTA-SESTA adds no-knowledge civil liability for owning, managing, or operating an information system with “reckless disregard of the fact that such conduct contributed to sex trafficking”.
Prior to FOSTA/SESTA, would a search engine be considered liable for knowingly distributing unlawful content? The 1st Circuit argued that was not the case[1] by citing Fair Housing Council of San Fernando Valley vs Roommates.com. Trafficking-related content would require inducement/incitement of action by the website (not mere advertisement, invitation or facilitation thereof) in order to be deemed unlawful. Trafficking-related content on a website was not, on its own, per se unlawful to distribute knowing or unknowingly. That was the case until Backpage's founders were indicted and FOSTA/SESTA was passed.
>>And FOSTA-SESTA adds no-knowledge civil liability for owning, managing, or operating an information system with “reckless disregard of the fact that such conduct contributed to sex trafficking”.
And this is the concerning bit I had in my last paragraph.
§230 explicitly never limited criminal liability, and arguably didn’t limit civil liability for knowingly distributing unlawful content (publisher liability, which it expressly prevents, applies without knowledge; distributor liability, which some courts have found it implicitly prevents as well [IIRC, only the 11th Circuit had ruled on this, at the federal appellate level] applies to knowing distribution).
And FOSTA-SESTA adds no-knowledge civil liability for owning, managing, or operating an information system with “reckless disregard of the fact that such conduct contributed to sex trafficking”.