Stop Enabling Sex Traffickers Act of 2017

CLBR Backgrounder

7,621 HUMAN TRAFFICKING CASES IN US (2016)

77 %

Involved SexTrafficking

•Victims

•83.9% Women

•31.6% Children

•80.7% Non-Immigrant

•CA, TX and FL

•33.3% of all cases

Source - https://humantraffickinghotline.org/states

I Am Jane DoeFebruary 2017

Zeroing in on what one victims’ advocate calls the public square for a modern-day form of slavery, Mary Mazzio’s eye-opening documentary reveals that the buying and selling of tweens and teens, long recognized as a plight in some developing nations, is also very much a domestic problem.

-- Hollywood Reporter

“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“.SECTION 230, COMMUNICATIONS DECENCY ACT

THE POLICY BEHIND CDA SECTION 230

• The Congress finds the following: (1)The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. . . .

• (3)The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

• (b)It is the policy of the United States—(1)to promote the continued development of the Internet and other interactive computer services and other interactive media;

• (2)to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

GETTING AROUND SECTION 230

Not Interactive Computer System

Distributor Liability

ModeratorSuper-User Liability

Promissory Estoppel

Partial Responsibility for Content Development

Site Marketing or Text Claim,

Failure to Warn *

Design Site to Require Illegal Content

Federal IP Claim

Federal Criminal Conspiracy Prosecution

* On Appeal

Jane Doe v. Backpages.com,

LLC, Case No.1:14-cv-13870-RGS (D.

Mass. May 15, 2015)

• Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned. Putting aside the moral judgment that one might pass on Backpage’sbusiness practices, this court has no choice but to adhere to the law that Congress has seen fit to enact.

• Decision affirmed by First Circuit (2016), cert. denied by Supreme Court (2016).

J.S. v Village Voice Media Holdings, LLC (Wash. Sept. 3, 2015)

• Court Rejects CDA 230 Defense

• The allegations “if proved true, would show that Backpage did more than simply maintain neutral policies prohibiting or limiting certain content.” The thrust of the allegations was that Backpage’s website and content guidelines were not simply neutral policies prohibiting or limiting certain content but were instead “specifically designed … so that pimps can continue to use Backpage.com to traffic in sex.”

October 2016

Backpage CEO Carl Ferrer Arrested

• Charged with Pimping by California

• Complaint Dismissed Under CDA 230

• Cal AG Refiles as Money Laundering and Pimping Case

January 2017: Senate Investigations Subcommittee Report

• Backpage knowingly covered up evidence of criminal activity by systematically editing its so-called adult ads.

• Backpage knows that it facilitates prostitution and even child sex trafficking.

• 93 percent of Backpage’s ad revenue in 2011 stemmed from its adult section.

• Of all the child sex trafficking reports submitted by members of the public to the CyberTipline, more than seventy-one percent (71%) relate to Backpage ads.” (National Center for Missing and Exploited Children)

• Backpage shuts down “adult” ads in response, but ads migrate to other portions of the site.

July 2017: New Revelations

• “A contractor for the controversial classifieds website Backpage.com has been aggressively soliciting and creating sex-related ads, despite Backpage’s repeated insistence that it had no role in the content of ads posted on its site, according to a trove of newly discovered documents.”

• Backpage Philippine contractorlured adult advertisers, even creating ads for them.

Link: http://wapo.st/2sJpAwf?tid=ss_tw&utm_term=.d7fafab56961

July 13: Rep. Wagner Calls for Criminal Investigation of Backpage

We write to urge the U.S. Department of Justice to immediately investigate Backpage.com and bring the website to justice under 18 U.S. Code § 1591 for knowingly advertising and financially benefiting from participation in sex trafficking.

S.1693 - Stop Enabling Sex Traffickers Act of 2017 (SESTA) Aug. 1, 2017

• Senator Rob Portman (R-OH), Chairman of Senate Investigations Subcommittee

• 27 Co-sponsors

• The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. This bipartisan, narrowly-crafted bill will help protect vulnerable women and young girls from these horrific crimes.”

SESTA• Amends Section 230 to clarify that

nothing in the section should be construed to impair enforcement of any criminal or civil actions federal trafficking statutes (U.S.C. Title 18, Sections 1591 and 1595) or any state criminal prosecution or civil enforcement action targeting conduct that violates the federal criminal law prohibiting sex trafficking of children or sex trafficking by force, threat of force, fraud, or coercion.

• Amends U.S.C. Title 18, Section 1591(e) to clarify that “participation in a venture” encompasses knowing conduct that, by any means, assists, supports, or facilitates a violation of the section.

House Legislation:Broader Reach

H.R. 1865 Allow States and Victims to Fight Online Sex Trafficking Act of 2017 introduced by Ann Wagner (R-MO) and 111 Co-sponsors.

Excludes from CDA 230

• “any State criminal statute that prohibits (i) sexual exploitation of children; (ii) sex trafficking of children; or (iii) sex trafficking by force, threats of force, fraud, or coercion.”

• “any federal or state law that “provides causes of action, restitution, or other civil remedies to victims of (i) sexual exploitation of children; (ii) sex trafficking of children; or (iii) sex trafficking by force, threats of force, fraud, or coercion.”

Critics: Is SESTA Necessary?

• 2014 Stop Advertising Victims of Exploitation Act (SAVE Act) makes advertising sex trafficking a crime.

• New facts may limit CDA 230 defense.

• Advocates – attacking businessmodel not just single company.

What State Laws Would Apply?

• Could states impose new requirements under the guise of regulating sex-trafficking?

• Will this be an invitation to litigate and create uncertainty as each state interprets exceptions?

• Business groups – “language will have the unintended consequence of allowing opportunistic trial lawyers to bring a deluge of frivolous litigation targeting legitimate, law-abiding intermediaries and create the potential for unpredictable, inconsistent enforcement by state authorities for political or monetary gain.”

Critics: Is Reckless Disregard Too Broad?

SESTA imposes criminal liability for assisting sex trafficking knowingly or with reckless disregard of its criminality.

• What steps should a prudent service provider take to ensure they do not have “reckless disregard” for publishing content from sex traffickers?

• Holding platforms liable if they have “knowledge” of certain user activities will discourage websites from partnering with law enforcement or otherwise engaging in voluntary initiatives to stamp out trafficking on their sites, lest they be held to have effective knowledge of user activities that could create legal liability.

• SESTA would increase operators’ incentives to censor even constitutionally protected speech and would discourage them from providing open fora for dialogue and exchange. SESTA would constrain individuals’ ability to access information online and to find platforms for their speech.

Critics: Unintended Consequences

• Would driving Backpage out of business make it more difficult for law enforcement to monitor?

• Would SESTA force at risk companies tomove offshore?