Top 5 Facts to Know: Current Sex Trafficking Legislation H.R. 1865 and S.B. 1693
It’s no secret that sex trafficking has flourished online. Nearly three-quarters of sex trafficking victims that have been identified were advertised on websites such as Backpage.com. Under current protections, states, victims and families have been unable to attain justice against these online entities. Legislative pressure is mounting, however, to restore justice for victims and their families. Below are 5 facts you need to know to understand H.R. 1865 and S.B. 1693.
1. The issue stems from Section 230 of the 1996 Communications Decency Act: Section 230 of the Communications Decency Act states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider.” This gives interactive online services immunity against lawsuits due to content created by their users, except for in cases of federal criminal liability and intellectual property claims.
2. Section 230 of the CDA is preventing victims and states from seeking justice in court: Judges have interpreted Section 230 of the CDA broadly, giving any internet service that hosts third party content (content posted by users) immunity against legal action. That is why legal action against sites like Backpage.com has been largely unsuccessful. The Supreme Court recently dismissed an appeal from three victims seeking justice from Backpage.com because of the immunity granted by the CDA.
3. There are bills in both the House and the Senate right now to amend section 230: H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, and S.B. 1693, the Stop Enabling Sex Traffickers Act of 2017 have been introduced in Congress. H.R. 1865 was introduced in April by Congresswoman Ann Wagner with 117 co-sponsors. Senator Rob Portman and 27 co-sponsors introduced S.B. 1693 SESTA in August. Both bills ensure that websites who publish information “designed to facilitate sex trafficking” will be held liable.
4. Section 230 of the Communications Decency Act of 1996 is outdated: The technological capabilities that are available today are very different than what existed when the CDA was passed. Back then, Internet enterprises had almost no way to review and monitor the content they hosted. Today, websites have a wide range of low cost tools like advanced analytics and filtering software to monitor content. With these tools, it is much easier to control what others can post on your website.
5. The momentum for the amendment to the CDA stems from a Senate Homeland Security Subcommittee into Backpage.com: The Homeland Security Senate subcommittee conducted a two-year investigation into Backpage.com. Details of the report were shared in a hearing in January. The report found that Backpage.com knowingly facilitated online child sex trafficking by filtering the text of advertisements to delete keywords like “rape”, “amber alert”, “little girl” and “Lolita” before posting them, concealing the nature of the ads. You can watch the hearing and read member statements here.
4. Backpage.com is not the only website used in sex trafficking. A recent case in Detroit attempting to hold Backpage.com responsible for the murder of minors that were advertised on the site was unsuccessful. Backpage.com pointed out that the victims were advertised on as many as 15 other websites. Craigslist is just one of the other sites that has advertised sex in the past. Although Craigslist has since removed their adult section, traffickers still post to the site using codewords to hide the true nature of what they are advertising. The reality is that taking Backpage.com down is not an ultimate fix to the problem, as it is just one of many sites where victims of sex trafficking are exploited. Amending section 230 of the CDA is a real solution as it would remove protections for all websites that facilitate sex trafficking.
5. Large tech lobbies are against the amendment, but the truth is that amending section 230 will not ‘break the internet’: Tech lobbies funded in part by the Internet Association (which represents Google, Amazon, Facebook, and Twitter) are firmly against the amendment. They argue that it is an attack on a free, open internet. They want us to believe that amending section 230 will lead to a slippery slope of lawsuits, forcing websites to remove large amounts of their content. Truth is, the amendment affects only bad-actor websites that host ads for trafficking a child. Service providers that work to monitor their content with a myriad of low cost tools from advanced analytics to filtering software would not be prosecuted. Understanding this, Oracle and CoStar Group have both come out in support of the legislation. The amendment is truly very specific and narrow, only targeting service providers knowingly facilitating child sex trafficking.
Both bills have bi-partisan support and the support of Attorney Generals, but we need everyone on board to ensure that these bills pass. There’s still time to contact your representatives about this important amendment to the CDA. Reach out to your representatives here, check the status on S.B. 1693 here, and check the status of H.R. 1865 here.
Senator Rob Portman and Claire McCaskill. Permanent Subcommittee on Investigations, Homeland Security, and Governmental Affairs. Jan. 10, 2017. Backpage.com’s Knowing Facilitation of Online Sex Trafficking. https://www.mccaskill.senate.gov/imo/media/doc/2017.01.10%20Backpage%20Report.pdf
S. 1693 Stop Enabling Sex Traffickers Act of 2017. https://www.congress.gov/bill/115th-congress/senate-bill/1693?r=7
Press Release. Attorney General Kamala D. Harris Announces Criminal Charges Against Senior Corporate Officers of Backpage.com for Profiting from Prostitution and Arrest of Carl Ferrer, CEO. Oct. 6, 2016. https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-criminal-charges-against-senior
Olivia Solon and Sabrina Siddiqui. Why is Silicon Valley fighting a sec trafficking bill? The Guardian. Sept. 7, 2017. https://www.theguardian.com/law/2017/sep/07/online-sex-trafficking-backpage-bill-communications-decency-act
Daniel Fisher. Backpage Takes Heat, But Prostitution Ads Are Everywhere. 2012. Forbes. https://www.forbes.com/sites/danielfisher/2012/01/26/backpages-takes-heat-for-prostitution-ads-that-are-everywhere/#5a65a8503095
Nikolas Kristoff. Google and Sex Traffickers Like Backpage.com. New York Times. Sept. 7, 2017. https://www.nytimes.com/2017/09/07/opinion/google-backpagecom-sex-traffickers.html?emc=edit_nk_20170907&nl=nickkristof&nlid=73130283&te=1&_r=0
National Association of Attorneys General. August 16, 2017, https://www.texasattorneygeneral.gov/files/epress/CDA_Final_Letter.pdf?cachebuster:37
National Center for Missing and Exploited Children, Yiota G. Souras testimony, 2017, United States Senate Permanent Subcommittee on Investigations. https://secure.missingkids.com/Testimony/11-19-15