The bill emerged from the Senate investigation of the online classified ad service Backpage, which found that Backpage was editing ads to remove shocking terms but leaving the ads online, and a series of court rulings which held Backpage blameless for the sex trafficking of underage girls in its “Adult Services” section. Then in July, The Washington Post disclosed that Backpage used a contractor in the Philippines to solicit prostitution ads from other sites and placed prostitution ads on other sites to lure customers. Among the ads for adult prostitutes are an unknown percentage of ads for teenaged girls and boys, which by definition is sex trafficking.
The Communications Decency Act, passed in 1996, provides immunity for website hosts so long as they are not “the publisher or speaker of any information provided by another information content provider.” As part of a “Good Samaritan” clause in the law, websites which voluntarily try to restrict obscene or lewd content are not liable under the act’s Section 230. The intent of the law was to protect websites from responsibility, and lawsuits, any time someone posted something objectionable.
That’s the way many big tech companies want the law to stay. Section 230 is “a bedrock legal protection for online services,” said the Internet Association in a letter to Senate leaders. The association represents Google, Facebook, Amazon and Microsoft, among others. (Jeff Bezos, the owner of Amazon, owns The Washington Post. He has not issued a public opinion on the issue, and didn’t respond to a request for comment.) The Internet Association’s letter said the proposed change in the law “will likely result in mass removals of legitimate content” and would discourage websites from aggressively policing their content, “for fear such actions would give the company knowledge of some limited use of its service” that it couldn’t remove and would open itself to legal liability.
The association’s general counsel, Abigail Slater, is scheduled to testify before the Senate Commerce committee on Tuesday, and in her prepared remarks she says that big tech companies “support targeted amendments to the Communications Decency Act that would allow victims of sex trafficking crimes to seek justice against perpetrators.” But no one from Google, Facebook or any internet company has yet agreed to appear. Google and Facebook officials declined to be interviewed for this story. Xavier Becerra, the attorney general of California who is prosecuting Backpage on criminal money laundering charges, and Yiota Souras, general counsel for the National Center for Missing and Exploited Children, are set to testify.
Backpage general counsel Liz McDougall said the company had no comment on the legislation.
Google issued a statement saying the proposed bill “would be a disaster.” Susan Molinari, the former New York congresswoman and now Google’s vice president of public policy, wrote that “Backpage.com can and should be held accountable for its crimes,” though a recent research paper showed that Google provides significant funding for think tanks which have supported Backpage in its various court battles.
Molinari claimed the bill “erodes the ‘good samaritan’ protection and would actually hinder the fight against sex trafficking.” E. Stewart Jeffries, another of Google’s top lobbyists, e-mailed Congressional staff in August with his “hope that your boss will not co-sponsor” either the Senate bill or a similar House bill. He said the bill “has the potential to seriously jeopardize the internet ecosystem.”
The bill, Senate bill 1693, actually only adds a few words to Section 230. It adds a clarification that “nothing in this section shall be construed to impair the enforcement” of federal anti-sex trafficking laws, or to impede “any state criminal prosecution or civil enforcement action targeting…sex trafficking of children or sex trafficking by force.”
Sen. Rob Portman (R-Ohio), the sponsor of the bill, has argued that the bill is narrowly tailored to sex trafficking in Section 230. It also clarifies, in the federal sex trafficking law, that “participation in a venture” includes “knowing conduct by an individual or entity” that assists or facilitates sex trafficking, in response to appeals court rulings which said the definition was unclear.
Portman said in a news release he was disappointed that none of the tech companies planned to appear. “I would hope that they would come and testify and tell the American people why they oppose it. Whoever opposes it — if they’re out lobbying against it, we should hear from them.”
Tech companies believe that changing Section 230 would open them up to massive lawsuits, “a trial lawyer bonanza of overly-broad civil lawsuits,” in the words of Gary Shapiro of the Consumer Technology Association. Portman and others say the law is narrowly written and that frivolous lawsuits happen in every industry. “This lawsuit claim is absurd and laughable,” said Kevin Smith, Portman’s spokesman. “Our narrowly-crafted bill protects good tech actors and only targets rogue online traffickers like Backpage.”
Similarly, the internet companies fear the costs of having to monitor every byte of content on their site. Advocates of the bill note that other media such as radio, television and offline media already must patrol their own content. The internet companies also claim that criminal law already allows federal prosecution of sites such as Backpage. But supporters of the bill note that the Internet and its potential for misdeeds are far too large for the Justice Department to police alone. Smith noted that the bill would clear the way for state and local prosecutors to take action, and “why shouldn’t those prosecutors, who are on the front lines fighting these trafficking crimes every day, be able to hold online traffickers accountable?”
Portman and other members of Congress called for a Justice Department investigation of Backpage after the stories in The Washington Post revealed their seemingly active role in creating sex-related content. The Justice Department has not responded to that request publicly.
At least three large tech companies have broken from the opposition and declared their support for the bill. Oracle issued a letter earlier this month saying the bill, if enacted, “will establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex advertising.” 21st Century Fox also issued a statement saying the company felt the “the narrow and tailored legislation you have proposed will appropriately target bad actors participating in this illegal activity and immediately serve to protect the most vulnerable among us from predatory sex traffickers.” On Monday, Hewlett Packard joined the tech dissenters, issuing its support in a letter which said, “we believe the technology sector has a responsibility to help policymakers and law enforcement combat illicit and criminal activity on the internet, especially sex trafficking.”
The battle over the law could be long and difficult, said John Simpson of Consumer Watchdog, which published the paper “How Google’s Backing of Backpage Protects Child Sex Trafficking” earlier this year showing how Google funds various think tanks who lobby or write legal briefs on behalf of sites such as Backpage. He said Google has spent record amounts on lobbying, and “has an obligation to step forward and explain their position to the public, rather than acting through paid surrogates and shills.”