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Senate advances human trafficking bills, debates Communications Decency Act

Joe Mont | September 20, 2017

While two related bills have passed in the Senate, a battle is brewing over bipartisan legislation intended to attack the problem on Internet-facilitated human trafficking.

On Sept. 19, the Senate Committee on Commerce, Science, and Transportation held a legislative hearing on the Stop Enabling Sex Traffickers Act of 2017. The bill, a proposal to combat online exploitation, has been met with concerns about potentially weakened corporate protections under the Communications Decency Act.

The proposed legislation, sponsored by Sen. Rob Portman (R-Ohio) and 27 additional cosponsors, proposes amending Section 230 of the Communications Decency Act to create new legal liability for Internet companies whose sites knowingly facilitate sex trafficking and other crimes through content hosted on their platforms.

While it does not affect federal criminal liability, Section 230 of the Communications Decency Act was written to protect internet platforms from civil and state criminal liability for content created by others who post unlawful content or use the platform for unlawful behavior.

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.

The 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.

Proponents of the legislation argue that Congress never intended for Section 230 of the Communications Decency Act to provide legal protections to websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims. Therefore, a clarification is both warranted and necessary.

“The fact that instances of human trafficking and sex trafficking are actually increasing in this country—in this century—is an outrage,” Portman testified, in support of the bill.  It’s a disgrace, and I believe history is going to judge us on how we respond to it.”

“Technology’s role in human trafficking cannot be ignored, he added. “The sad reality is that three-out-of-four child sex trafficking victims in the U.S. have been exploited online. And perpetrators often make their first connections to victims on the Internet.”

The Electronic Frontier Foundation is among the business associations expressing concerns with the bill.

“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,” it warned in a comment letter. “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.”

In the meantime, two other bills relating to human trafficking have passed in the Senate. The No Human Trafficking on Our Roads Act (S. 1532) would disqualify individuals from operating a commercial motor vehicle for their lifetime if they used a vehicle to commit a felony involving human trafficking. The Combating Human Trafficking in Commercial Vehicles Act (S. 1536) designates a human trafficking prevention coordinator at the U.S. Department of Transportation and would increase outreach, education, and reporting efforts at the Federal Motor Carrier Safety Administration.