By Marielena Reyes

After two years of investigating a website called backpage.com, the Senate Homeland Security Subcommittee found that Backpage.com knowingly facilitated sex trafficking.[1]  The response seems easy to predict right? Any reasonable person would conclude that a website assisting in the sexual enslavement of men or women should be shut down and prosecuted to the furthest extent of the law.  Here’s the catch –  the United States Court of Appeals for the First Circuit ruled that Section 230 of the Communications Decency Act (“CDA”) protects Backpage.com and other intermediary websites from criminal liability for content produced by a third party user.[2]  In other words, host sites receive a “liability shield” to avoid accountability for user generated content.  In this case and in effect, Backpage.com has avoided all civil and criminal lability for advertising for sex traffickers on their website.[3]

The National Center for Missing & Exploited Children’s received 9,700 tips in 2017 of cases involving child sex trafficking.[4]  Nearly 81% of those tips indicated these children were being trafficked online.[5]  Five attorney generals and nearly 30 Senators have refused to allow this loophole to continue by throwing their full support behind a newly proposed bill.[6]  Senator Rob Portman (R-Ohio) introduced the Stop Enabling Sex Traffickers Act of 2017 (“SESTA”), which now has garnered bipartisan support.[7]  The purpose of the bill is to amend the CDA so that Internet websites cannot avoid liability for content created by third parties.[8] SESTA would allow state attorneys general to prosecute websites under state laws.[9]  The bill’s sponsors have specifically preserved the CDA’s Good Samaritan provision, which protects good actors who proactively block and screen for offensive material.[10]  Sponsors have clarified that this should shield good actors from frivolous lawsuits.[11]

Currently, Congress is receiving heavy pushback from tech giants in Silicon Valley who fear massive amounts of lawsuits and overly broad claims.[12]  Tech giants claim that the common law framework does not deserve Constitutional protection and is “government censorship.”[13] While tech giants commend Congress’s efforts to stop sex trafficking, they are concerned about the vague wording of the bill which could potentially implicate every host website that deals with user generated content.[14]  In addition to the frivolous lawsuits, this bill could jeopardize the principles of free and open internet beyond its scope.[15] Julie Samuels, a spokesperson for Engine Advocacy, a nonprofit organization that pursues public policies that are beneficial to technology startups, is concerned this bill could sweep up “legitimate good actors “and crush startups.[16] While large tech giants like Google and Facebook can afford an army of lawyers, small company’s efforts to innovate or create online interaction may be stifled.[17]

It is absolutely imperative to protect those being exploited through online sex trafficking. Tech giants are now being labeled pro-sex trafficking or advocates for a free speech ideology that enables sex trafficking.[18]  Technology giants concerns should not be ignored.[19] If an exception is carved out for sex trafficking victims to have access to a civil claim, then one can imagine the influx of groups who will pursue further exceptions for other classes of crimes.[20]  Anti-SESTA advocates also fear that restrictions of user generated content could technically include email services and comment sections.[21]  Anti-SESTA advocates also point out that the Department of Justice already has the authority to investigate and prosecute these platforms.[22]

The internet has changed how we interact with each other, deliver and buy products, and see what is happening around the world in real time.[23] While the Internet has provided such luxuries, it has also created a black market from terrorists to hackers to drug dealers.[24]  This naturally led legislators to provide regulatory measures to curb criminal behavior.[25] Traditionally, for example, libel conduct on Facebook was the responsibility of the third party user, not the company who provided the platform.[26] Therefore, host websites could not be held liable.[27] Furthermore, in the real world for example, the law does not hold a landlord responsible for a tenant who conducts criminal activity within their apartment, but a landlord can be held responsible if the landlord knowingly allows criminal activity on the premises and profits from it.[28]  In this case, Backpage.com and other websites like it, make thousands in profit from advertisements where they knowingly allow the selling of the most vulnerable in society.[29]  If as a society we choose to prosecute those who commit these acts in real life, then why can we not prosecute them equally for conduct that occurred online?  This bill is not meant to censor Internet host websites, but to make it easier for sex trafficking victims to receive justice.[30]  What Internet hosts really fear is the “slippery slope” and influx of litigation that could inevitably occur if this piece of legislation passes.[31] Regardless, the “Good Samaritan” provision within the bill should provide enough protection to good actors and would force hosts to proactively maintain and monitor their sites for illegal behavior.[32]

The Department of Justice has the authority to prosecute sites like Backpage.com and should do so to the furthest extent of the law, but has yet to take action.[33] The issue remains on how potentially broad the scope of the bill is and its possible impact on internet freedom.[34] But we must keep in mind, libel conduct on Facebook is one thing, but allowing host websites a “get out of jail free” card for allowing sex traffickers or equivalent crimes a legitimate platform to further their criminality is another.

 

[1] See Fred Campbell, How Google’s ‘Free Speech’ Ideology Facilitates Trafficking And Online Censorship, Forbes (Sept. 21, 2017, 12:14 PM), https://www.forbes.com/sites/fredcampbell/2017/09/21/how-googles-free-speech-ideology-facilitates-sex-trafficking-and-online-censorship/#530836785a4e.

[2] See 47 U.S.C. § 230(c)(2) (stating that no provider or user of interactive computer services will be held accountable for actions that are considered obscene, violent, or objectionable).

[3] Id.

[4] See Kalhan Rosenblatt, Senators, Silicon Valley at Odds Over Anti-Sex Trafficking Bill to Change 1996 Law, NBC News (Sept. 20, 2017, 9:46 AM), https://www.nbcnews.com/tech/internet/senators-silicon-valley-clash-over-anti-sex-trafficking-bill-change-n802691.

[5] Id.

[6] Id.

[7] Id.

[8] See Sarah Jeong, Sex Trafficking Bill is Turning Into a Proxy War Over Google, The Verge (Sept. 14, 2017, 3:06 PM), https://www.theverge.com/2017/9/14/16308066/sex-trafficking-bill-sesta-google-cda-230.

[9] See Campbell, supra note 1.

[10] See 47 U.S.C. § 230(c); see also Melissa Quinn, Tech community fighting online sex trafficking bill over fears it will stifle innovation, Wash. Exam’r (Sept. 18, 2017, 12:01 AM), https://www.washingtonexaminer.com/tech-community-fighting-online-sex-trafficking-bill-over-fears-it-will-stifle-innovation/article/2634402.

[11] See Quinn, supra note 10.

[12] See Jeong, supra note 8.

[13] See Campbell, supra note 1.

[14] See Rosenblatt, supra note 4.

[15] Id.

[16] See Jeong, supra note 8.

[17] See Quinn, supra note 10.

[18] See Campbell, supra note 1.

[19] See Quinn, supra note 10.

[20] Id.

[21] See Mike Godwin, A Bill Intended to Stop Sex Trafficking Could Significantly Curtail Internet Freedom, Slate (Aug. 4, 2017, 12:19 PM), https://www.slate.com/blogs/future_tense/2017/08/04/a_bill_to_stop_sex_trafficking_could_curtail_internet_freedom.html.

[22] Id.

[23] See Ben Hancock, Online Sex Trafficking, Emojis, and How the Internet Has Changed Law, Law (Aug. 1, 2017), https://www.law.com/sites/almstaff/2017/08/01/online-sex-trafficking-emojis-and-how-the-internet-has-changed-law/?slreturn=20170901172623.

[24] See Quinn, supra note 10.

[25] See Immunity For Reader Comments under Section 230 of the Communications Decency Act, Reporters Comm. for Freedom for the Press, https://www.rcfp.org/browse-media-law-resources/digital-journalists-legal-guide/immunity-reader-comments-under-section-23 (last visited Oct. 12, 2017).

[26] Id.

[27] Id.

[28] See Criminal Acts and Activities: Landlord Liability, NOLO, https://www.nolo.com/legal-encyclopedia/criminal-acts-activities-landlord-liability-faq.html (last visited Oct. 12, 2017).

[29] See Campbell, supra note 1.

[30] See Campbell, supra note 1.

[31] See Rosenblatt, supra note 4.

[32] See Quinn, supra note 10.

[33] See Godwin, supra note 20.

[34] Id.