H.R.1865, known as the "Allow States and Victims to Fight Online Sex Trafficking Act of 2017", recently passed both chambers of Congress and was signed into law by president trump. I'm not a lawyer, nor do I have much experience with the law, but the fact that this bill passed, almost unanimously, really concerns me. I want to clarify that I'm not advocating for prostitution or sex trafficking. I'm simply interested in the constitutional legality of the bill and the precedent that it sets.
A summary of the bill and its actual contents can be found on Congress.gov: H.R.1865 - Allow States and Victims to Fight Online Sex Trafficking Act of 2017.
I have several questions about the legality of this bill. After reading through it, it seems to violate the constitution in a couple ways:
Section 4, Subsection (b)
"Effective Date - The amendments made by this section shall take effect on the date of the enactment of this Act, and the amendment made by subsection (a) shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after such date of enactment."
This seems like a violation of Clause 3 of Article I, Section 9 of the Constitution which clearly states that Congress shall not pass any Ex Post Facto law. Meaning, a law that can be applied retroactively. Am I missing something?
Section 2 and Section 3
The purpose of these sections, and the bill in general, is to add an exemption to section 230 of the "Communications Decency Act of 1996" for websites that promote or facilitate prostitution or sex trafficking. The purpose of section 230 was to limit liability for the owners of a website in regards to content generated by the website's users. This new law essentially strips away that limitation. So, states can now prosecute an individual who owns or operates a website for content produced by the users of the site, if those users advertise prostitution or sex trafficking.
This seems like a clear violation of the First Amendment of the Constitution. How can an individual be held legally liable for content, free speech, created by other individuals? Consider the amount of content produced, even within a short period of time, by websites such as Facebook, Reddit, Twitter, etc. How is it that they should be obligated to regulate the free speech of others?
What makes prostitution and sex trafficking the only crimes exempt? Essentially, why not make all crimes exempt? That one simply defies logic, in my opinion.
Section 4, Subsection (a) states:
"Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both."
How is this a federal crime when the legality of prostitution is regulated by the states and is not among the enumerated powers of the federal government? I'm guessing that because it stipulates that it must be a "means of interstate or foreign commerce", that it falls within federal jurisdiction?
Lastly, if indeed this law is unconstitutional, how does the public go about challenging it's legality? Thanks.