Anti-child prostitution measure could see court fight

 Anti-child prostitution measure could see court fight

Tech insiders are predicting a legal battle over legislative language aimed at tamping down on child prostitution included in a bill that unanimously passed the Senate last week.

During debate over the anti-human trafficking legislation, Sen. Ron WydenRonald (Ron) Lee WydenOvernight Defense: House passes T spending package with defense funds | Senate set to vote on blocking Saudi arms sales | UN nominee defends climate change record Grassley announces opposition to key Trump proposal to lower drug prices Exclusive: Trump administration delayed releasing documents related to Yellowstone superintendent's firing MORE (D-Ore.) and groups like the Center for Democracy and Technology (CDT) fought a losing battle to highlight what they call a “vague” provision in the bill designed to criminalize website owners who knowingly advertise the prostitution of minors.

Critics say the amendment violates a core Internet principle that websites cannot be held liable for what users post and brings up First Amendment concerns.

“The scope of this bill and the vagueness immediately puts it into constitutional suspicion,” said Emma Llansó, who leads CDT’s Free Expression Project.

She added: “Having to defend a federal criminal sex trafficking charge in court requires a huge outlay of time and resources, and the potential reputational hit is immense. So I think as people realize the potential impact this bill will have, I think it’s very likely that it will be challenged.”

The amendment, which mirrored legislation previously sponsored by Sen. Mark KirkMark Steven KirkEx-GOP Sen. Kirk registers to lobby The global reality behind 'local' problems Dems vow swift action on gun reform next year MORE (R-Ill.) and Sen. Dianne FeinsteinDianne Emiel FeinsteinYoung activists press for change in 2020 election The Hill's Morning Report — US strikes approved against Iran pulled back Democrats want White House hopefuls to cool it on Biden attacks MORE (D-Calif.), would place “advertising” on an existing list of offenses considered human trafficking, along with other things like recruiting, harboring and transporting minors. A similar stand-alone bill was approved in the House earlier this year.

Wyden applauded and ultimately approved the overall bill. But he took issue with the web advertising provision.

The Kirk amendment is aimed at barring people from advertising child prostitution or benefit financially from that advertising with “knowing intent.”  Kirk and others have specifically called out backpage.com, a site similar to Craigslist that has come under increasing scrutiny over its adult section.

“We don’t have to turn our backs on the children who are being sold for sex online in order to protect innovation in America,” Kirk said. “There is no reason to protect the bad actors who make millions from their child victims."

Backpage declined to comment and referred back to CTD's opposition to the provision. Other social media and online classified sites also declined to comment on the overall bill.

Websites are typically shielded from liability from third-party content under a section of the Communications Decency Act, which advocates say helped clear the way for sites like Craigslist, Wikipedia and Yelp. However, there is an exception if the content violates federal criminal law, where the trafficking provision fits.

Supporters of the amendment are also confident the advertising provision will pass constitutional muster.

“We have checked with the Department of Justice. We believe it meets constitutional standards,” Feinstein said.

Critics have argued the bill fails to define “advertising” and is not limited to classified ad hosting sites. They argue the language could extend to social media sites, e-commerce sites or any website that hosts content generated by users.

“The Kirk Amendment would enable prosecutors to go after websites millions of Americans use for non-nefarious purposes, chilling innovation,” Wyden said on the Senate floor last week.

Critics point to a trio of similar state laws that were overturned in Washington, Tennessee and New Jersey in previous years. In a letter signed by 18 privacy, civil liberties and technology groups earlier this year, they voiced opposition to these types of laws. The groups noted the three state laws were killed for “violating the First Amendment, with courts finding that such laws are vague, overbroad, create a chilling effect on lawful speech, and fail the least-restrictive-means test.”

But that opposition was largely muted last week. After earlier battles with the trafficking bill, the momentum behind last week's compromise overshadowed the advertising provision. The legislation had been hung up in a fight over abortion funding for weeks. It was also tangled up with the confirmation vote of Loretta Lynch, who will be sworn in as attorney general on Monday.

Wyden and Sen. Maria CantwellMaria Elaine CantwellHillicon Valley: Democratic state AGs sue to block T-Mobile-Sprint merger | House kicks off tech antitrust probe | Maine law shakes up privacy debate | Senators ask McConnell to bring net neutrality to a vote Senators call on McConnell to bring net neutrality rules to a vote Maine shakes up debate with tough internet privacy law MORE (D-Wash.) were the only senators to oppose the amendment, and both ultimately voted for the overall bill.

“He made the best appeal he possibly could to colleagues to consider rejecting this amendment,” Llansó said of Wyden. “But I think just the forces of moving this bill and getting the AG nomination finally confirmed really stacked the deck.”