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Bipartisan bill targets human trafficking, critics fear for online free speech

Joe Mont | August 2, 2017

A bipartisan array of senators are backing legislation offers “a narrowly-crafted solution designed to protect women and young girls from modern-day slavery.” Critics fret that the end result would diminish online freedom of speech and gut website liability protections.

In response to online sex worker advertisements that contribute to human trafficking, the \Stop Enabling Sex Traffickers Act would clarify Section 230 of the Communications Decency Act to ensure that websites that knowingly facilitate sex trafficking can be held liable.

The bipartisan bill would:

  • Allow victims of sex trafficking to seek justice against websites that knowingly facilitated the crimes against them;
  • eliminate federal liability protections for websites that assist, support, or facilitate a violation of federal sex trafficking laws; and
  • enable state law enforcement officials, not just the federal Department of Justice, to take action against individuals or businesses that violate federal sex trafficking laws.

The legislation follows a two-year Permanent Subcommittee on Investigations inquiry that culminated in a report alleging that that Backpage.com “knowingly facilitated criminal sex trafficking of vulnerable women and young girls and then covered up evidence of these crimes to increase its own profits.”

A Senate resolution authorized the release of all materials from the investigation that found Backpage knowingly facilitated online sex trafficking. The release of the information is to help law enforcement, state attorneys general, and regulatory agencies to pursue investigations against the company.

The new legislation is sponsored by senators Rob Portman (R-Ohio), Claire McCaskill (D-Mo.), and Tom Carper (D-Del.) and supported by more than a dozen of their colleagues. With estimated annual revenues of more than $150 million, Backpage is a market leader in commercial sex advertising and has been linked to alleged cases of sex trafficking, including the trafficking of children, they say.

The Stop Enabling Sex Traffickers Act would affect Section 230 of the Communications Decency Act, 1996 legislation that proponents say ensures online freedom of speech. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” it says.

Aside from criminal and intellectual property-based claims, Section 230 protects online services from potential liabilities stemming from third-party content. Yelp, Facebook, Twitter, and YouTube are among the many companies that have benefitted from these legal protections.

“Given the sheer size of user-generated websites (for example, Facebook alone has more than 1 billion users, and YouTube users upload 100 hours of video every minute), it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site,” warns the Electronic Frontier Foundation. “Rather than face potential liability for their users' actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online. In short, CDA 230 is perhaps the most influential law to protect the kind of innovation that has allowed the Internet to thrive since 1996.”

CDA 230 also offers its legal shield to bloggers who act as intermediaries by hosting comments on their blogs, the foundation adds. Under the law, bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via e-mail, or information received through RSS feeds.

“This legal protection can still hold even if a blogger is aware of the objectionable content or makes editorial judgments,” it says. “The legal protections provided by CDA 230 are unique to U.S. law. European nations, Canada, Japan, and the vast majority of other countries do not have similar statutes on the books… CDA 230 makes the U.S. a safe haven for websites that want to provide a platform for controversial or political speech and a legal environment favorable to free expression.”

Among those concerned by the potential reach of the Stop Enabling Sex Traffickers Act is the Internet Association. It supports “a free and open internet.”

“The Department of Justice must hold criminal actors and facilitators of human trafficking, including rogue operators like Backpage.com, responsible to the fullest extent of the law,” says President and CEO Michael Beckerman. “However, this bill is overly broad and will be counterproductive in the fight to combat human trafficking”

“While not the intention of the bill, it would create a new wave of frivolous and unpredictable actions against legitimate companies rather than addressing underlying criminal behavior,” he added. “Furthermore, it will impose new, substantial liability risks for companies that take proactive measures to prevent trafficking online, hampering the ability of websites to fight illegal activity. The bill also jeopardizes bedrock principles of a free and open internet, with serious economic and speech implications well beyond its intended scope.”