Thank you to our dear friend L for compiling all of this fantastic interpretation. However understand NONE of what you read on this site should be considered legal advice. If you have questions you need to contact an attorney in your own area:
BackgroundWhat? Fosta – Who is it aimed at, how, and why?Who – It is aimed at online escort advertisers.How – By making them liable for 3rd party content; e.g. invalidating Sec.230Why – The general consensus is that attempts to remove/regulate adult content is the beginning of the war for the internet; it’s regulation/control/commercialization. He who controls the internet, controls the world.Of note re FOSTA
- Wording is for “Computer Interactive System or Network”
- So not just applicable to individuals, but also: email, websites, hosting, chat, text
- Has not yet been prosecutedLegalityThe DOJ wrote a letter of recommendation AGAINST Fosta because they believe the broad manner in which it was written is unconstitutional. That recommendation was ignored and now opens the door for a challenge.It is worth mentioning that the two parties which could have fought Fosta as unconstitutional are out of the game. Backpage was taken out and the CEO flipped and handed the money over to the feds so there’s no money to fight it. TER [The Erotic Review] backed off completely and wants nothing to do with it.Criminal ImplicationsCompanies – Subject to seizure of assets and domain, and criminal prosecution for trafficking, money laundering, etc.Individuals – For any person you are suspected of trafficking – up to 5 persons – a term of up to 10 years. If you are suspected of trafficking 5+ persons, the term is 10-20 years.Because the law makes no differentiation between consensual sex work and actual trafficking, ANYTHING which could be perceived as promotion of prostitution is now susceptible to prosecution.Civil ImplicationsAny victim of trafficking who manages to have a criminal case brought to court can have their attorney now bring a civil action as well without additional validation from a grand jury. Fosta effectively makes every civil attorney an Atty General now.Next StepsCompanies need to clean up their sites. Many have closed – but not because of Fosta – but because they lost referral traffic from Backpage and TER, and so it was no longer profitable to stay open as a ‘free’ site and the new laws make it that much more difficult.For Independents, the best steps to take are:
- to remove all banner exchanges
- remove links to advertising sites
- do NOT advertise duos or suggest that anyone visit their friends
- Make their site private; or at least make the rates/gallery private
- Clean up their wording on the website; no inference, no gfe/pse, any other acronyms, no dinner dates – speak in generalities.
- clean up all social mediaIF you do business on the phone – a land line would be a great idea. It is harder to get a judicial order for a wiretap than it is to get a subpoena for email/cell records. Barring this, use an encrypted voice service without ties to a us based global corp. i.e. DO NOT use WhatsApp, as they are owned by Facebook.Which brings us to MLAT, what it is, and how it relates to the Cloud Act and your communications and website.MLAT – Mutual Legal Assistant TreatyHow does it work?Lets say you’re in the US and your information (email/text/call records) are housed in Switzerland which has an MLAT with the US. So….US cops issue a subpoena-> St Dept of the US-> St Dept of Switzerland-> Swiss cops-> service to the information providers who then hand over your information.Total time?6-8 weeks and they often are requested NOT to inform you until after then information has been handed over.How does the Cloud Act affect this?It cuts out the state dept review and could effectively shorten the time to approx 1-2 weeks.Although the Cloud Act is passed, no treaties have yet been signed. So there is still a longer window.But what about emails and websites in Switzerland? They’re protected!Yes and no.Proton MailProton mail only encrypts the body of the email – NOT the sender/receiver/subject. So still exercise CAUTION. As well – they will hand over account information if they are served under MLAT/Cloud ACT. It is clearly stated in their TOS. But all things considered, STILL better than using gmail.What to do?I am currently on the hunt for an encrypted email service that is based in a country without an MLAT agreement witht he US. I think I may be searching for the golden unicorn of lore. If you hear of anything, please share – it would make a world of difference.If you want to help me out, here’s the MLAT index: https://www.mlat.info/mlat-indexWebsites marked as .chYes. Your website is protected – but from seizure ONLY. However, the account information behind the website can still be requested via MLAT and you are still subject to prosecution unless you managed to register under an assumed name.WHY? Because if you are a resident of the United States they base their prosecutions on the premise that the law applies to you as a resident of this country and not as a business owner of the country where your website/email is located. There’s a legal term for it, but I don’t recall what it is.Additional Fun Fact – Electric Fences are real.Google recently held a convention in Anaheim Ca with approx 75k attendees. They had an electric fence over the convention center and the three hotels where attendees were staying. Attendees agreed to the fence in the registration TOS when they paid for the event. The same TOS that no one reads. That electric fence meant that all electronic communications (email/phone calls/ text/ images/chat/web access/etc) were first filtered and seen by/through Google and that Google had authority to do what they felt fit with those communications. We have a confirmed report from security personnel at the event that they turned over to the police at least one provider who was transmitting availability from within the convention center. And I bet there were a lot of guys who didn’t understand why their emails were not being answered those days.— PAY ATTENTION TO TOS.