In late March, the Senate Judiciary Committee convened a public hearing to express its outrage at the sexual abuse of female athletes in the American gymnastics program. The senators’ comments painted a picture of a vast bipartisan effort to protect our children from sexual assault and exploitation. During the hearing on the “Protecting Young Victims of Sexual Abuse Act,” senators warned the Olympic Committee that they would take action, described sexual abuse as “a parent’s worst nightmare” and declared that “protecting children from abusers has been a top priority” of Capitol Hill.
Nothing could be further from the truth.
When one examines more broadly what Congress could — but has thus far failed — to do with current legislation to protect even more children from sexual abuse, one sees a very different picture. During the March hearing, Sen. Chuck Grassley (R-Iowa) stated that they were there to build on a bipartisan commitment and to “learn what more can be done to keep our nation’s children and young athletes safe from sexual predators.” One thing they could learn to do is answer the call that 47 state attorneys general made four years ago and amend the law that not only permits Internet and tech companies like Backpage.com to profit from the sale of children online but actually gives them immunity in doing so.
Until very recently, Backpage.com was the largest online marketplace for child sex trafficking. The National Center for Missing and Exploited Children testified before Congress that “most child sex trafficking is facilitated by online classified advertising websites” and that the more than 800 percent increase in reports of suspected child sex trafficking “are directly correlated to the increased use of the Internet to sell children for sex.” My own research of a decade of published judicial opinions reveals that online advertising of children for sex is a significant (if not predominant) method of selling children into sex trafficking. These companies have been sued by surviving victims throughout the country for facilitating their sex trafficking, and, with one exception, these companies have been able to hide behind Section 230 of the Communications Decency Act and claim immunity for their actions by claiming that it grants them protection from prosecution for the transactions that they facilitate.
When Congress drafted Section 230 of the CDA in 1996, we lived in a different world: The Internet was still in its infancy, and online commerce had yet to become a major force in American life. Yet as the Internet has developed and the “dark web” has emerged, Congress has failed to amend this provision to respond to these new challenges. As a result, 47 state attorneys general have written Congress to demand the CDA be amended to prevent this. Law enforcement, child advocates, local politicians and victims themselves have begged Congress to make this important change and close down the largest marketplace for the sale of children in the world.
To be fair, some of Congress has acted against Backpage.com specifically. Earlier this year, the Senate Subcommittee on Investigations for the Committee on Homeland Security investigated Backpage.com, forced compliance with its subpoenas, and issued a scathing report about Backpage.com’s role in child sex trafficking. In that report, the Committee itself acknowledged that Backpage.com “knowingly facilitated prostitution and child sex trafficking.” On the same day, Backpage.com, announced it would no longer have an adult services section on its American site.
But our children need more protection than addressing one company at a time. Prior to Backpage.com, Craigslist fulfilled the role of auctioning block for America’s children. No doubt now, another company will take up the mantel. And why wouldn’t they? The law, according to Congress, immunizes them from prosecution, even when their websites serve as de facto digital brothels.
The industry claims that the First Amendment requires that Section 230 cannot be touched in any way, no matter how many children are sold over online venues. Yet this is misleading: While the First Amendment is critical to a free society, it is intended to inform us on how to navigate complex areas of competing rights, not to preclude any discussion whatsoever of ways to limit damage and destruction due to forms of speech. In certain narrow contexts, the First Amendment has yielded to other societal needs, such as not constitutionally protecting threats. If one can’t threaten a 13-year-old with rape, one should not be able to facilitate the rape.
Who stands to lose if Section 230 is amended to allow the prosecution of websites where children are prostituted? Pimps and traffickers to be sure — but also big business tech and Internet companies who profit from child sex trafficking by receiving payment for such advertisements or increased traffic to their platforms. They have wasted no time influencing government after the election. Within days of the president’s election, Internet companies wrote to the president-elect to protect their interests, seeking preservation of the CDA. Unfortunately, it appears they have political power in Washington. For example, just last month, Congress repealed FCC privacy restrictions on Internet Service Providers that would limit their ability to collect and sell information about ordinary citizens to the highest bidder. Who benefited from such legislation? The very same entities opposed to amending Section 230.
The Senate Judiciary Committee should be commended for their actions responding to the sexual abuse of these athletes. But they should not feign outrage at child sexual abuse unless they’re taking every possible step to prevent it. If they meant what they said about protecting children, they would amend the CDA — a much smaller effort with a much larger impact.
At last week’s hearing, the senators warned that a “culture of money and medals had taken priority over the safety” of these heroic female athletes. Perhaps that same culture of money has successfully targeted Congress as well. And we may never see a hearing for its victims.