The bill would amend the Communications Decency Act, which websites such as Backpage.com have invoked as immunity from criminal and civil actions when victims of online sex trafficking have tried to stop them from hosting ads for male and female sex workers, some of whom are teenagers. The act was passed in 1996, as the Internet was just evolving.
The 1996 measure protects website operators from content posted by third parties, so long as the operators have no involvement in the content, and it is credited with enabling the Internet to flourish without excessive regulation or legal liability for small start-ups. When young women who had been prostituted on Backpage tried to sue the website, federal appeals courts in Chicago and Boston specifically cited the Communications Decency Act’s Section 230 as precluding the women from holding the websites liable.
Those rulings spurred the move to amend the law. In Chicago, a 16-year-old girl was slain by a customer who had found her on Backpage in 2016. In Washington state, a 15-year-old girl was trafficked on Backpage for more than three months before being rescued. But the mothers of both girls faced uphill legal battles against Backpage, so both mothers gave emotional testimony to Congress in support of amending Section 230 to enable prosecution of the websites themselves.
“It is a good day for America,” said Nacole S., the mother of the Washington girl, whose last name is being withheld to protect the girl’s identity. “The narrow focus of this bill corrects Section 230 and keeps with the original intent of Internet freedom and holds bad actors accountable for trafficking our children. This means everything to our family, and it is the fulfillment of a promise to our daughter to hold those [actors] accountable.”
Linda Smith, founder of Shared Hope International, an anti-sex-trafficking group, said she began providing research to Congress in 2007 about online sex trafficking but that the information wasn’t taken seriously. “We were all waking up,” Smith said. “Congress is not much different from the rest of the country. People are recognizing that these children are victims of crime and deserve justice. That vote is, I think, historic.”
A Senate subcommittee investigated Backpage and found that it was involved in editing prostitution ads on its site to remove references to underage girls, while allowing the ads to stay on the site. A Washington Post investigation last year revealed that Backpage representatives actively solicited ads from prostitutes who advertised on other sites and created ads for them on Backpage. Legislation then launched in the House and Senate to amend Section 230, specifying that it did not indemnify websites from facilitating sex trafficking.
A hybrid version of those bills emerged from the House, under Rep. Ann Wagner’s (R-Mo.) proposed law titled “Allow States and Victims to Fight Online Sex Trafficking Act of 2017,” or “FOSTA,” and passed last month. Sen. Rob Portman (R-Ohio) championed a similar bill in the Senate and spoke repeatedly on the chamber floor in recent days about the need for it to stop or slow down online sex trafficking.
Large tech companies, such as Google and Facebook, initially declared their opposition to the bills, saying they would create massive liability for content they simply couldn’t monitor. But law enforcement and anti-human trafficking groups waged an effective campaign in support of the bills, and Facebook’s chief operating officer Sheryl Sandberg announced her support for the bill, as did other large tech companies.
“This is legislation that is overdue in my view,” Portman said on the floor Wednesday. “And it’s required. The courts have told us that. The district attorneys have told us that. The attorneys general told us that…They welcomed us to pass this legislation to give these families the justice they deserve and to give our prosecutors the ability to go after them.”
The key section of “FOSTA” clarifies that Section 230 shall not impair prosecution of anyone violating federal sex trafficking laws or limit civil lawsuits, and in the sex trafficking law defines “participation in a venture” as anyone “knowingly assisting, supporting or facilitating a violation” of the law. “Now,” said Sen. Claire McCaskill (D-Mo.), “all the prosecutors in the country can go after anyone who knowingly facilitates sex trafficking online.”
Among the sex ads posted on Backpage.com are those for underage boys and girls, authorities and advocacy groups say. The National Association of Attorneys General has described Backpage as a “hub” of human trafficking, which involves children or adults who are forced or coerced into prostitution. The National Center for Missing and Exploited Children said that 73 percent of the 10,000 child sex trafficking reports it receives from the public each year involve ads on Backpage. Recently, Backpage’s ads have begun omitting any copy with their offers of adult services, instead showing only photographs of the purported escorts.
Still, there was opposition to the bill. Wyden, one of the original sponsors of Section 230 in 1996, said the Justice Department already could prosecute Backpage for the violations revealed by the Senate investigation. He said the bill would be a bonanza for trial lawyers, who could sue websites for content they weren’t aware of, and “dismantle the legal framework that’s given the United States the position it holds as a tech-economy superpower.” Wyden said big tech companies ultimately supported the bill because “it rolls up the ladder in the tech world, leaving the established giants alone at the top” and smaller companies susceptible to punishing lawsuits.
“This bill will be something the Senate will deeply regret,” Wyden said.
IBM reiterated its support for the bill shortly after the vote, issuing a statement which said it “looks forward to seeing FOSTA signed quickly into law,” and that “those who knowingly help sex traffickers use the internet to commit despicable crimes are closer than ever before to being held accountable.
Some who study or work with sex workers said the bill would not impact the problem of online sex trafficking of minors, and make it harder to find victims. Kimberly Mehlman-Orozco, author of the book “Hidden in Plain Sight: America’s Slaves of the New Millennium,” said “the justification for this legislation rests on the misleading idea that individual websites facilitate child sex trafficking, when in reality the Internet as whole has brought this practice out of the shadows and proliferated it. Once signed into law, FOSTA will likely be used to go after previously vilified websites, like Backpage.com and Craigslist.org, despite the fact that those platforms have been used as critical tools for law enforcement and facilitate the rescues of victims and arrests of offenders. Meanwhile, other websites that are also used by sex traffickers, like Facebook, will continue business as usual.”
But others heralded the bill’s passage. John M. Simpson of Consumer Watchdog said FOSTA was “a major step forward not only for families of children who were trafficked, but for everyone who cares about holding tech giants accountable to the rule of law. This is a chink in the teflon of Google and Facebook’s shield of immunity,” and force them to reevaluate their “duties to police their platforms”
Yiota Souras, general counsel for the National Center for Missing and Exploited Children, said when the bill is enacted, “not only will it untie the hands of every state Attorney General’s office across the country to enter the fight against online sex trafficking, but it will open the door for private attorneys to serve as a voice for individual survivors in civil lawsuits against their online traffickers. Most importantly, this bill creates a bright line to root out bad actors online who knowingly participate in the trafficking of children and vulnerable adults while it continues the CDA’s protection of online entities that engage in voluntary good faith efforts to remove trafficking and sexually exploitative content online.”