Congress should terminate trumped-up national ‘emergency’
Misinformation campaign is at the center of opposition to common sense sex trafficking legislation
To close an unconscionable loophole created by the courts in lawsuits brought by children sold online for sex, the House of Representatives passed sensible, narrowly tailored legislation. This bill clarifies that websites, such as Backpage.com, that knowingly partner with sex traffickers and sell sex trafficking victims online, can be sued for damages and held accountable under state anti-trafficking criminal laws. The House voted overwhelmingly (388-25) to support Rep. Ann Wagner's (R-Mo.) bipartisan Allow States and Victims to Fight Online Sex Trafficking Act ("FOSTA-SESTA"). This week, this legislation reached the floor of the Senate. Sens. Rob Portman's (R-Ohio) and Richard Blumenthal's (D-Conn.) Stop Enabling Sex Traffickers Act ("SESTA"), which is now joined with FOSTA, has bipartisan support with 67 co-sponsors from both parties. Some in the tech world want to kill this bill by flooding the airwaves with misinformation. Their arguments make no sense.
One recent study found that 70 percent of child sex trafficking victims surveyed were sold online. The Attorney General of California testified before the Senate that nearly every sex trafficking case his office handles involves online advertising. For the last decade, whenever a victim who had been sold online tried to sue, or a state attorney general tried to enforce his own state's anti-trafficking laws, websites such as Backpage.com have successfully fought them in court. Backpage.com got their suits dismissed by arguing that a 1996 law (Section 230 of the Communications Decency Act) grants them immunity to engage in this business.
Who can oppose such common sense legislation to close this unintended loophole? Well, sex traffickers who profit from such sales of human beings can. The ILO estimates that forced sexual exploitation generates approximately $99 billion a year in profit. Then there are the internet companies that, unlike brick and mortar companies, have enjoyed total immunity while making money from this loophole. A Senate investigation into Backpage.com found that approximately 93 percent of its revenue (estimated at $150 million in 2016) comes from "adult services" ads. Other websites are seeing the high profit and no risk opportunity from ads that sell people online and they are not hesitating to join in behind this legal protection.
These tech company advocates, serving as Backpage.com's surrogates, are engaging in a campaign of misinformation. Their arguments are legally deficient. First, they claim that FOSTA-SESTA violates free speech. Selling victims of sex trafficking is not speech. It is a criminal action in every state and under federal law. Furthermore, the Supreme Court has been quite clear, "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection." Next, they argue that this sensible and much needed law will "kill the Internet." Legal scholars, pro-technology and Internet advocates, as well as major tech companies have refuted this claim. For example, Oracle stated that SESTA "does not, as suggested by the bill's opponents, usher the end of the Internet. If enacted, it will establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking," and"[f]rankly, we are stunned you must even have this debate." Even the Internet Association supports SESTA.
The legislation's detractors now purposely misconstrue the bill. For example, a recent editorial claimed that plaintiffs could win cases if they "merely" established a website "should have known" users were engaged in criminal activity. That is flatly incorrect. The phrase "should have known" is nowhere in the legislation. To the contrary, the legislation requires proof that a website "knowingly" assisted, facilitated, or supported sex trafficking when it entered into a venture with a sex trafficker. "Knowingly" is one of the highest mental states in the law and is certainly not easy to prove.
The misinformation does not stop there. This same editorial wrongly suggested that the force behind this legislation was trial attorneys. Nothing could be further from the truth. As scholars, we have been studying and writing about exploitation, constitutional criminal law, and trafficking for many years. The movement behind this legislation has never been trial attorneys. Rather, it has been women like Yvonne Ambrose, who testified before the Senate about her daughter who was murdered after being trafficked online; by the Leadership Council of Women Religious which includes the hundreds of religious sisters serving marginalized trafficking survivors in need of social services; World Without Exploitation, a coalition of survivor led and service organizations fighting all forms of trafficking; as well as Covenant House - the largest homeless shelter serving trafficked youth in the Americas. The forces behind this movement are trafficking victims and their families, parents of those who have not survived sex trafficking, 50 attorneys general, social services organizations that provide care for trafficking victims, and the public that finds it abhorrent that in 21st century America, you can buy a child sex slave online in a matter of seconds. As demonstrated by this letter from over 100 organizations and survivors of sex trafficking who filled the halls of Congress for a legislative briefing in January, the loophole must end.
Enough is enough. Human lives should matter more than tech companies' profits.
Donna M. Hughes, Ph.D., is one of the leading international researchers in human trafficking and holds an endowed professorship in Gender and Women's Studies at the University of Rhode Island. Mary Graw Leary is a human trafficking Professor at the Catholic University of America, Columbus School of Law and recently testified before Congress on FOSTA. Shea Rhodes is Founder and Director of the Institute to Address Commercial Sexual Exploitation (CSE Institute) at Villanova University Charles Widger School of Law. Audrey Rogers is a criminal law and computer crimes professor at Pace University, Elisabeth Haub School of Law, who has written extensively on digital exploitation. Penny Venetis is a leading human rights attorney, Director of the Human Rights Clinic, Co - Director of the Constitutional Rights Clinic, and Judge Dickinson R. Debevoise Clinical Professor of Law at Rutgers University School of Law who has written extensively on human rights and constitutional law.