Politics Senate Crackdown on Online Sex Trafficking Hits Opposition
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WASHINGTON — The Senate’s latest effort to crack down on online sex trafficking is designed for success. Proposed legislation has an unassailable title, the Stop Enabling Sex Traffickers Act of 2017, and bipartisan support. And it targets websites that knowingly facilitate the work of sexual predators online.
But the bill is running into vigorous opposition from technology companies and digital rights groups alarmed at the potential infringement of online speech.
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The bill, which would amend the Communications Decency Act, is sponsored by Senator Rob Portman, Republican of Ohio, and a group of 19 other senators, including six Democrats.
It follows the culmination of a two-year Senate investigation led by Mr. Portman into Backpage.com, a classified advertisement website notorious for prostitution and trafficking ads.
“Finally, victims of human trafficking are going to see justice when we get this passed, and that’s really important to many of us who have been following this,” said Mr. Portman, chairman of the Senate Permanent Subcommittee on Investigations. This summer, the committeethat the Justice Department open a criminal investigation into the website’s connection to online sex trafficking, citing evidence that Backpage employees were instructed to delete flagged words indicative of trafficking — “Lolita,” “rape,” and “teenage” among them — before publishing the advertisements online.
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In federal and state investigations, Backpage has successfully cited as a defense Section 230 of the decency act, which says that websites cannot “be treated as the publisher or speaker of any information provided by another information content provider.”
If passed, the Portman bill would clarify that Section 230 cannot shield a website from federal trafficking laws. It would also impose liability for knowingly assisting and facilitating online sex trafficking, and allow civil suits related to sex trafficking.
Backpage.com officials did not respond to requests for comment. The website announced in January that it had formally closed its adult section after the Senate investigation found that employers “knowingly facilitated the criminal sex trafficking of vulnerable women and young girls,” but trafficking advertisements have been reported in the.
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The National Center for Missing and Exploited Children, which praised the bill in a letter to senators this week, reported that 73 percent of reported sex trafficking was traced through advertisements on websites like Backpage.
However, some lawyers and members of the technology community say that while they support the policing of websites that knowingly encourage sex trafficking, the broad language of the bill opens other online entities to new legal challenges. With the potential for lawsuits, there is concern that websites would begin to actively and pre-emptively delete and police users’ posts and videos.
A similar bill introduced in the House in April, which would not only modify the decency act but create harsher penalties for providers found to have had knowledge of sex trafficking, has been criticized for being even broader than the Senate bill.
“It would be good for the drafters of the bill to engage seriously with the nontrivial objections that are meant to support freedom of expression online, and it’s not freedom of expression to sex traffic,” said Jonathan L. Zittrain, a professor of internet law at Harvard, emphasizing that critics were not arguing against prosecuting websites like Backpage.
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“They are worried about sites that don’t resemble Backpage at all running into trouble if the immunity is lifted,” he said. Like many other critics of the bill, Mr. Zittrain said he would prefer narrower language or the chance to prosecute websites under current legislation, including the Stop Advertising Victims of Exploitation Act of 2015.
And despite the strong bipartisan support in Congress, the bill will have to overcome dissent from other lawmakers and Silicon Valley executives concerned about freedom of speech on the internet.
But Senate staff members involved in the bill’s development said that they had made an effort to work with tech companies concerned about modifying the decency act. “We did our due diligence, met these folks on a bipartisan basis for months, and yet they offered no constructive feedback,” said Kevin Smith, a spokesman for Mr. Portman. “It’s sad that they’d oppose a narrowly crafted, two-page bill to help stop online sex trafficking of women and children.”
Senator Ron Wyden, Democrat of Oregon, who was partially responsible for the inclusion of Section 230 in the decency act while serving in the House, said the bill was “yet another example of the technical ignorance of Congress threatening the jobs, lives and economic opportunities of millions of Americans.”
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“This bill will make it less likely that tech companies help the victims this bill is meant to protect,” he said Tuesday in a statement.
Michael Beckerman, president and chief executive of the Internet Association, a trade group that represents major online companies, said inthat the bill would create “a new wave of frivolous and unpredictable actions against legitimate companies rather than addressing underlying criminal behavior.”
Mr. Portman said such criticism of the bill’s language was unfounded. “It seems like a stretch to me,” he said, adding that he felt the bill clearly targeted companies complicit in trafficking.
“The alternative is not to do nothing and allow these girls and women to continue to get thwarted in every effort they make to seek justice,” he said.
In a speech on the Senate floor Tuesday night, Mr. Portman argued that the bill preserved the decency act’s “good Samaritan” provision, which protects websites that regulate their content.
“This provision simply protects good actors who proactively block or screen for offensive material and thus shields them from any frivolous lawsuits,” he said.
For Danielle Citron, a law professor at the University of Maryland, the bill’s language — in particular phrases like “assist, support or facilitate sex trafficking” and “conduct violates federal criminal law” — are too vague in defining what constitutes facilitation and violation. While she supports modest change to the statute, she said she would rather see the courts re-evaluate their interpretation of the law’s specific language.
Critics also say the bill opens up websites to potential prosecution by states, a change that could force sites to make costly modifications to meet state laws or expose them to expensive litigation if a law is changed or accidentally ignored, said Corynne McSherry, legal director of the Electronic Frontier Foundation, which advocates civil liberties online.
It is a cost that tech giants like Google, YouTube and Twitter can handle, but that would likely stifle the development of new and smaller websites.
“I worry about the next Google, the next Twitter, the next emerging platform that we would grow to love,” Ms. McSherry said, “but it’ll never exist because that platform, that business would never get off the ground.”
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