In bid to amend Communications Decency Act, Congress must side with trafficking victims
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The courts cry for help and Congress holds the protection of trafficking victims in its hands. Just two weeks ago a California Court dismissed the pimping charges against the owners of Backpage.com for its role in allegedly knowingly collaborating with human traffickers to sell women and children online for sex. In so doing, it joined an increasing list of courts asking Congress to amend the so-called Communications Decency Act (CDA), which they have interpreted to provide immunity for such companies.

In closing his opinion, Judge Lawrence Brown made this shocking statement: “Until Congress sees fit to amend the immunity law, the broad reach of section 230 of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking.” That’s right – immunity for collaborators of human trafficking.

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This is yet another common sense appeal to Congress to make clear that companies who actively partner with human sex traffickers to sell victims online are not immune from liability. Judge Brown’s opinion joins a growing chorus of countless human trafficking victims, law enforcement, and a broad coalition of non-profit organizations to amend the CDA.

The good news is that Congress has begun to listen.

This summer, Congress has acted in a bipartisan way with two widely sponsored bills in each chamber. The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 has more than 100 co-sponsors in the House and the Stop Enabling Sex Traffickers Act of 2017 has nearly 30 co-sponsors in the Senate. These bipartisan legislative proposals demonstrate it is possible to draft a narrowly tailored, common-sense clarification to the CDA. The Senate bill, for example, provides for this simple proposition: a company that knowingly acts to assist human sex traffickers should not have immunity intended for Good Samaritan companies working in good faith to limit this material.

This is on the heels of recent investigative reports that uncovered documents showing that Backpage.com knowingly works with human traffickers to design and post online ads selling trafficked women and children. It also follows a Senate Permanent Subcommittee on Investigations’ scathing report on Backpage.com’s intentional facilitation of sex trafficking on its platform.

The problem is simple, and the solution obvious. In 1996 Congress passed the CDA in an effort to shield children from sexually explicit material. In so doing, Congress also wanted to create a robust internet where ideas could be exchanged freely. It fashioned legislation intended to balance those concerns and protect companies from liability when they merely hosted content from third parties and when they chose in good faith to regulate explicit material on their sites. The result was Section 230 of the CDA.

Ironically, events over the past 21 years have turned the CDA on its head. First, the internet has grown in ways unforeseen in the 1990’s. Today the internet hosts the largest marketplace for sex trafficking in the world. NCMEC reports that 73 percent of child sex trafficking reports it receives from the public involve Backpage.com ads. Second, it was not until 2000 that Congress passed the Trafficking Victims Protection Act which formally criminalized sex trafficking.

Since then every state has passed human trafficking legislation to address this significant and growing problem. The CDA does not reference sex trafficking because – well – it did not even exist in the law at the time of its drafting (of course, sex trafficking was occurring prior to 2000 but went largely unrecognized). Consequently, courts have misinterpreted the immunity provision for Good Samaritan companies and allowed it to be interpreted as blanket immunity for bad Samaritans such as Backpage.com. For example, the First Circuit recently ruled that the CDA’s immunity provision would preclude litigation – criminal or civil – against Backpage.com even if it participated in a sex trafficking venture by actively collaborating with traffickers to sell children for sex online. Indeed, the court advised the victims to seek a legislative remedy and dismissed their case.

So, at a time when bipartisan work seems impossible, members of Congress from both parties have recognized this simple solution. That’s the good news.

The bad news is that the tech companies and big business are fighting this and raising spurious claims that it will “gut the internet” and end online free speech. These are scare tactics. The Senate bill is four pages long and does nothing more radical than update the CDA to include sex trafficking – a crime that did not exist in 1996 - and clarify that the immunity provision is not intended to protect those who knowingly act to assist human sex traffickers.

For example, the Senate bill explicitly states its purpose – to make clear that “Section 230 was never intended to provide legal protection to websites that facilitate trafficking in advertising the sale of unlawful sex acts with sex trafficking victims.” It retains the immunity provision for Good Samaritan companies, but responds to numerous court pleas to clarify the scope of the immunity provision by explicitly stating that the CDA does not provide immunity for online companies who knowingly collaborate to assist sex traffickers.  

It is no secret that Washington is in gridlock on many issues. Proof that this is a common sense clarification and not earth shattering legislation is demonstrated by the bipartisan support for these clarifications with more than 130 members of Congress in both houses and countless survivors and diverse victim organizations including The National Center for Missing and Exploited Children and Shared Hope International. Further evidence is the encouragement from the courts to amend the now confusing law.

This legislation is a test for Congress – will it side with common sense and agree that federal law cannot give immunity to active partners of human traffickers, or will it side with corporations that want the CDA to be left untouched and perverted to afford them broader immunity than ever intended.

If Congress fails to act it will be saying that it knows courts are interpreting the CDA to allow companies to partner with human traffickers and profit from selling women and children, and it approves it. It is a test of character for Congress, and nothing else.

Mary G. Leary is Professor of Law of The Catholic University of America. She is also a former policy consultant and deputy director for the Office of Legal Counsel at the National Center for Missing and Exploited Children (NCMEC); and the former director of the National Center for the Prosecution of Child Abuse (NCPCA).


The views expressed by this author are their own and are not the views of The Hill.