In Congress’s attempt to attack online sex trafficking on websites like Backpage.com, the House Judiciary Committee took a new approach Tuesday by rewriting the Mann Act, an early 20th century law aimed at stopping forced prostitution, and amending the controversial standards set by the Communications Decency Act. That act, which immunizes websites from liability for content posted by others, such as prostitution ads, has been used by Backpage and others to fend off criminal prosecutions and civil suits.
Anti-sex-trafficking groups said they were surprised that the House bill was quickly cobbled together without their support, and said it doesn’t address the legal hurdles that the CDA sets for sex-trade victims and prosecutors. The bill was originally filed in April, with no mention of the Mann Act. A letter sent to Judiciary Committee leaders on Monday by 30 victims’ rights groups and victims themselves said that “the new language imposes a specific ‘intent’ standard for any liability, which makes it nearly impossible for any civil litigant to file successfully against bad actors.”
Rep. Bob Goodlatte (R-Va.), the Judiciary Committee chairman, said his panel “worked with law enforcement to craft the bill, so it contains the tools we know they need to better prosecute these crimes.” Goodlatte noted that “knowingly advertising sex trafficking” can be hard to prove, “so the bill creates a new federal crime for intentionally promoting prostitution, which as we all know often includes sex trafficking. This new statute will give prosecutors and victims a more direct way of fighting these heinous crimes and taking down bad-actor websites, without proving that the website knew the activity was in fact sex trafficking, which is rarely stated in the advertisement.”
Rep. Jerrold Nadler (N.Y.), the ranking Democrat on the committee, said the bill didn’t have “sufficient support from the community of advocates and survivors,” and he asked that it be held for further discussion. But Goodlatte held a voice vote on his substitute to H.R. 1865, and it passed unanimously Tuesday.
The original sponsor of the bill, Rep. Ann Wagner (R-Mo.), said she was thrilled by the current version despite the criticism from some quarters. “This is a forward-looking bill,” she said, focused not just on Backpage but the other websites posting ads trafficking children. “This will bring those websites down from a criminal standpoint.” She said Justice Department attorneys had provided guidance on writing a bill that would be useful in court, and that state and federal prosecutors support the new version.
The Senate last month passed its own bill, the Stop Enabling Sex Traffickers Act, or SESTA, with support not only from the survivors and advocates for sex victims but also from the Internet community, which had initially opposed the bill, fearing it would increase liability for large sites such as Google and Facebook. The House bill, titled Allow States and Victims to Fight Online Sex Trafficking Act, or FOSTA, heads to the full House with approval from groups such as the Internet Association and Net Choice. But how SESTA and FOSTA might be reconciled in conference committee, when they amend different federal statutes and set levels of proof, puzzled many interested parties Tuesday.
“Here in the Senate,” Sen. Rob Portman (R-Ohio) said after the House vote, “we have a carefully crafted, bipartisan solution that has the support of all major stakeholders, including victims and advocates, faith-based groups, law enforcement and the larger tech community. This new House proposal is opposed by advocates because they’re concerned it is actually worse for victims than current law. And that’s the whole point of this effort – to help victims get the justice they deserve. I am confident that the Senate will pass SESTA next year and we’re going to continue to work with our House colleagues to get it enacted into law.”
The bills in both houses were drafted because of federal court rulings that said that the CDA provided nearly blanket protection for websites as long as they merely host content, not create it. In a ruling by the U.S. Court of Appeals for the 1st Circuit in Boston, in a case filed by sex-trafficking victims against Backpage.com, the judges “held that even if Backpage had participated in the crime of sex trafficking,” filmmaker and advocate Mary Mazzio said, the CDA “shielded the company from the claims filed by child victims. The court wrote that the exploited children needed a legislative solution.”
The original House bill, submitted by Wagner, added references to federal and state sex-trafficking laws into the CDA, and amended the federal sex-trafficking law to define “participation in a venture” to include “knowing or reckless conduct” by anyone abetting sex trafficking. The proposed bill said that any website that published information “with reckless disregard” that the information furthered sex trafficking shall be imprisoned. And nothing in the law, the original bill said, “shall be construed to require the Federal Government, in a prosecution, or a plaintiff in a civil action, to prove any intent on the part of the information content provider.”
That language was wiped away by Goodlatte’s substitute amendment, which still clarifies that the CDA “was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and contribute to sex trafficking.” Former representative Chris Cox, now a lawyer for NetChoice, which represents many Internet companies, had suggested in his testimony to the committee that the legislation merely restate the intent of the CDA rather than rewrite it and create unforeseen problems. Cox was an original author of the CDA.
Instead, the new bill would amend the Mann Act, originally passed in 1910 as concerns grew over women being forced into prostitution. It was subsequently used to prosecute people, including celebrities such as boxer Jack Johnson, actor Charlie Chaplin and musician Chuck Berry, for taking women across state lines consensually. The new bill would criminalize anyone who operates a facility “with the intent to promote or facilitate the prostitution of another person.” An aggravated violation would be when someone intentionally promotes prostitution and “acts in reckless disregard of the fact that such conduct contributed to sex trafficking.” The bill adds standards of “intent” that Mazzio and others said would be harder to prove than the original bill, or the Senate bill, but which Wagner said was necessary for successful prosecutions.
To sue someone under the new bill, plaintiffs would have to show that the website had “responsibility for the creation or development of all or part of the information or content provided.” Mazzio said that maintains the current controversial standard of the CDA, and that the CDA needs to be amended for websites which don’t create content but which participate in facilitating criminal activity.
“This new amendment is harmful to the rights of victims,” said Mazzio, a lawyer and director of the film “I Am Jane Doe.” She added, “In the words of one Jane Doe attorney: ‘This current amendment is worse than no bill at all for survivors.’ ”
Lauren Hersh, national director of World Without Exploitation, a victims’ advocacy group, said that “Using the Mann Act, it feels like that’s not the answer. The answer is amending Section 230 [of the CDA]. If we want to give victims a way to hold these websites accountable, we have to amend Section 230. It’s all deeply problematic.” She said advocate groups such as hers, tech groups and legislators worked hard on the Senate’s SESTA bill to reach a compromise all sides accepted. But in the House, the new bill was rushed through, and is “so drastically different from the language that existed two weeks ago,” Hersh said.
The bill does amend the CDA to enable state prosecutors to pursue websites for prostitution under state law, though it does not mention civil suits in state court. “By ignoring the possibility of a private right of action,” Mazzio said, “it fails.” She also noted that the House bill may require state prosecutors to be cross-designated as federal prosecutors, and prove interstate activity, a further complication for successful criminal prosecution.
Wagner said her staff and the Judiciary Committee had been working with advocacy groups for the past six weeks, as well as getting input from the Justice Department, on what “intent” language was needed to successfully prosecute those who advertise children online. She disagreed with Mazzio and said that private lawsuits can still proceed against those involved in the websites.
“No one cares more about access to justice for victims than I.” she said. “They have that. It’s been my dream to actually go after these websites with strategic prosecutorial tools. … This is going to be the first bill that shuts down the websites.”
Here is the letter from victims and advocacy groups opposing the House bill: