There were early fights over whether user-generated content needed to be screened for child appropriateness (the 1996 Communications Decency Act, largely struck down in 1997, and later the Child Online Protection Act, or COPA, for which I was a litigant under EFF, finally struck down in Philadelphia in 2007). But in 1996 Section 230 of the same CDA was established, and in 1998 the DMCA Safe Harbor mechanism was set up. Both of these laws largely shield service providers (ranging from shared web hosting to social media companies, to specialized classified ad sites – like Backpage, or Craigslist, to discussion forums) from downstream liability for user behavior. But in some cases they are required to report credible information (from user complaints) about illegal behavior of users, like postings of child pornography and, even under current law, selling sex trafficking (of minors), to law enforcement. But they only need to report retrospectively this when informed, not prospectively by screenig. Congress seems to want to establish a “should have known” (like Reid Ewing’s “woulda-coulda-shoulda” line from his 2012 short film “I’m Free!”) or “reckless disregard’ standard specifically for sex-trafficking conducted by users on their platforms. A good question is whether “reckless disregard” would mean different standards for different kinds of providers. A hosting provider like BlueHost is in much less position to know what I am doing than even Facebook. Another question is whether “underlying conduct” refers to the provider or to the user.
It appears that FOSTA "as is" was entered into the Senate schedule on Friday March 16, but that doesn't predict how long it will take to come to a vote. Skopos Labs gives it a 49% chance of passage in that form.