The Fight Online Sex Trafficking Act Headed to President Trump for Signature … or Veto

The Internet is a haven for sex traffickers and other criminals. Sex traffickers first made use of Craigslist, Myspace and other, legacy websites to sell sex. As Craigslist cracked down on sex ads, sex traffickers moved to websites like Backpage.com. According to the National Center for Missing and Exploited Children, there was an increase of 846% in reports of suspected child trafficking between 2010 and 2015 which it found “directly correlated to the increased use of the Internet to sell children for sex.” The study went on to find that 73% of estimated 10,000 child sex trafficking reports it receives a year involve ads posted to Backpage.com. Furthermore, a Senate report found that more than 93% of Backpage.com’s revenue in 2011 came from its adult section.

Backpage.com has come under such intense scrutiny that its CEO was arrested and Congress pressured Attorney General Sessions to investigate sexual ads on the website. In fact, Backpage.com has found refuge in the First Amendment and Section 230 of the Communications Decency Act; defying a Congressional investigation, avoiding lawsuits from victims of sex trafficking, and even defeating a Cook County program to discourage payments to the website. Backpage.com is the most egregious example of an online platform (knowingly or willfully ignorantly) permitting criminal activity and successfully finding protection under Section 230.

Section 230: An Unintended Defense of Criminal Activity

Section 230[1] provides that “[n]o 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.”

“In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content.” The Electronic Frontier Foundation.

Section 230 has been a boon for the Internet, allowing services such as YouTube, Facebook, and other websites that rely on user participation to flourish and not be held accountable for the actions of their users. If Facebook were responsible for all one-billion-plus of its users, it would either need to impose draconian censorship to control the flow of information or prohibit/severely limit user-generated content.

However, Section 230 can also be abused. A line of cases from Myspace to Craigslist outlines the essential premise, if a website (platform) allows users to post content, the platform cannot be held responsible (criminally or civilly) for the content of that material – absent a handful of exceptions[2]. It was these initial cases that allowed Backpage.com and similar websites to fend off civil and criminal complaints.

According to Georgetown University law professor Rebecca Tushnet, Section 230 granted online platforms “power without responsibility.” Professor Tushnet draws parallels with the Digital Millennium Copyright Act to illustrate that (1) Section 230 is not an absolute requirement under the First Amendment nor (2) is it an inevitable result. No one wants to put a noose around the Internet, however, there is a middle-ground between websites that implicitly (or explicitly) permit illegal content to flourish on their platforms and giving law enforcement and victims to the tools to hold platform operators accountable. The Fight Online Sex Trafficking Act would be that middle ground.

The Fight Online Sex Trafficking Act

H.R. 1865, “the Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (“FOSTA”) was passed with an amendment offered by Rep. Mimi Walters which added language from S. 1693, “the Stop Enabling Sex Traffickers Act” (“SESTA”) to address the loophole exploited by website operators found in Section 230. FOSTA/SESTA carves out an exception from Section 230 for online platforms that knowingly benefit from sex trafficking. Specifically, FOSTA/SESTA makes it a crime to “knowingly benefit from participation in a venture that engages in sex trafficking.”[3] FOSTA/SESTA defines participation to mean “knowingly assisting, supporting, or facilitating a sex trafficking violation.”[4]

The exception carved out by FOSTA/SESTA is narrow. It (1) clarifies Section 230 was never intended to protect sex traffickers, (2) permits civil lawsuits, and (3) criminalizes “knowing” conduct. Meaning, websites are only penalized if the prosecutor can prove the operator knew (or maybe had reason to know) that sex traffickers utilized their web services. How this might result during a criminal investigation/trial will depend on the facts.

But one can imagine a scenario in which an online platform draws a significant portion of its revenue, say 93% from a section of its website devoted to “erotic” listings and which is connected or related to 73% of online sex trafficking of children to constitute “knowing” assistance, participation, or facilitation.

Understandably, Internet companies are wary of any changes to Section 230. However, it is undeniable that criminal enterprises thrive on an unregulated, unenforced, and unruly Internet. The Silk Road flourished as the eBay of illegal services, drugs, weapons, and explosives because it existed on a part of the Internet that is unexplored by law enforcement and not indexed by search companies. Backpage.com facilitated the abuse of tens of thousands of sex trafficking victims, and it did so while flouting victims and stymieing investigators. There is a middle ground between ensuring a free and open Internet and a Backpage.com-esque criminal utopia. There will be many more lawsuits to define the scope and meaning of FOSTA/SESTA and probably even more adjustments to the laws regulating the Internet. However, FOSTA/SESTA is a step toward solving one of the many problems plaguing the Internet.

[1] Incorporated as 47 U.S.C. § 230.

[2] The classic example are copyright violations enumerated in the Digital Millennium Copyright Act which grants any online platform immunity from suit if it grants copyright holders the right to modify or remove violating content – colloquially known as a “DMCA Takedown.” 

[3] Id.

[4] Id.

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