SESTA/FOSTA was a bill that was supposedly designed to shut down sex trafficking sites on the Internet by effectively repealing the protections provided by Section 230 of the Communications Decency Act which protects online service providers like Facebook and Google from being prosecuted for the postings of their users.
The bills, which have been around in different forms for a couple of years, was snuck into the budget bill in the dark of night. There was no debate, no committee hearing and no markup of the bill. Likely, knowing DC, it was a Quid Pro Quo to get someone to vote for the budget bill.
Section 230 of the Communications Decency Act protects online service providers from being held accountable for what their customers post. While the “claim” is that this bill is designed to punish web sites that post prostitution ads, it is so poorly written that it could be used as a club against any web site that a federal prosecutor chooses to. The main target of the bill was Backpage, which did post, in my opinion, prostitution ads, but that site was shut down and the people responsible for it arrested days before the President signed this bill, so, apparently, the feds did not need this law to shut down what was proclaimed to be the target of the bill.
Fringe dating sites, sex trade advertising sites, parts of Craigslist and other sites have already shut down. Google has started wielding a meat axe on their site to ensure they are not charged. All this before the law likely is implemented, some time next year (Source: Motherboard Vice).
Given this, what should you do?
First, this really only affects you if you run a website and you allow users to post content on that site.
For the moment, lets assume that you do run a website that allows users to post content such as comments or reviews. Up until now, the rule was that if you did not impose editorial control over that content, then you were not liable for it.
Now, apparently, you are.
This means that you need to do one of two things:
1. Shut down the part of the web site that allows users to post content. If this destroys your business model, tough. Write a letter to Congress. What Congress giveth, Congress can taketh away.
2. If that is not an attractive option, then you have to create a process to review every post to make sure that it cannot be misconstrued by some over eager federal prosecutor to charge you.
Remember, you do not have to be guilty to be charged and proving yourself innocent can be very expensive.
I am not sure if cyber insurance will start covering this. Prior to the effective repeal of Section 230, they did. Now, it is not clear at all.
Fundamentally, you have to exercise full editorial control over the content.
Don’t be surprised if people start figuring out which sites do not monitor posts and start using those sites as a replacement for the ones that shut down.
As we get closer to 2019, there could be some clarity and, possibly although unlikely, Congress could amend the legislation.
In the meantime, stay tuned and start setting up those processes.