President Donald Trump signed the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” into law April 11.
Under the new law, the government will be able to prosecute the owners or operators of websites which knowingly assist, support, or facilitate “the prostitution of another person,” or who act with reckless disregard for the fact that their conduct contributed to sex trafficking. Users and victims will be able to sue those sites.
The new law clarifies that Section 230 of the Communications Decency Act of 1996, which previously protected the operators of websites from legal liability for content posted by third parties, cannot be used as a defense to shield sites that knowingly promote sex trafficking and prostitution.
“[Section 230] was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims,” the law reads.
Before the bill became law, federal authorities on April 6 seized Backpage, a massive classified ad site used largely for selling sex, which hosted ads depicting the prostitution of children. Ads posted on the site, which took in an estimated $135 million in annual revenue in 2014, were reportedly responsible for nearly three quarters of all cases submitted to the National Center for Missing and Exploited Children. The site was the subject of an extensive Senate report into its practices of promoting prostitution and the trafficking of minors, which was released in January 2017.
The Department of Justice on April 9 announced the charging of seven individuals, including Backpage’s founder Michael Lacey, in a 93-count federal indictment which detailed the site’s reported practices of facilitating prostitution and money laundering. The indictment alleges that the defendants knew that the majority of the website’s “adult” ads involved prostitution, and that the site would “sanitize” the ads by removing “terms and pictures that were particularly indicative of prostitution” but continuing to run the ads.
Backpage also allegedly had a policy for several years that involved deleting words in an ad denoting a child’s age, and publish the revised version, which created a “veneer of deniability” for those trafficking the children.
“This website will no longer serve as a platform for human traffickers to thrive, and those who were complicit in its use to exploit human beings for monetary gain will be held accountable for their heinous actions,” said FBI Director Christopher Wray in a release from the DOJ. “Whether on the street or on the Internet, sex trafficking will not be tolerated.”
Rep. Ann Wagner (R-MO) introduced the bill, and House Judiciary Chairman Bob Goodlatte (R-VA) added language to expand the scope of the bill to include advertisements for all forms of prostitution. In areas of the country where prostitution is legal, that fact can be taken into account in court as an affirmative defense.
Prostitution is currently illegal in all of the United States except in a few rural Nevada counties, but some estimates suggest there are over half a million people in the country in prostitution.
After the bill passed the Senate 97-2 with bipartisan support on March 21, a number of websites began to take down explicit content and online communities that promote pornography or prostitution. Craigslist shut down their Personals page on March 23, and Reddit removed several fora that users previously used to seek and advertise escort services and casual sexual encounters.
Critics of the law, including deputy Attorney General Stephen A. Boyd, voiced concern that some of its language – which would allow punishment for conduct that occurred before it was enacted – may be unconstitutional. Others have argued that it could have a chilling effect on free speech on the internet.
Santa Clara University Law Professor Eric Goldman said, in testimony to Congress in November 2017, that an amendment to Section 230 could lead to sites self-censoring any and all content that could be construed as sex trafficking, or, alternatively, dial down moderation so that they could less reasonably be accused of “knowing” that sex trafficking content existed on their site.
“If failing to moderate content perfectly leads to liability, some online services will abandon their efforts to moderate user content or even shut down,” Goldman said during the hearing.
“I really do fear the chilling effects,” said Mary-Rose Papandrea, a University of North Carolina Law Professor, during a symposium on April 6. “Because imagine you run a platform, and imagine now you are exposed to liability for everything a third-party posts on your website as soon as you’re told about it. What are you going to do? You’re going to take it down.”
“I worry this isn’t the end,” she continued. “We can carve out sex trafficking, and we can debate that…but my concern is what’s next.”
However, Mary G. Leary, law professor at The Catholic University of America, rejected this idea. She told CNA in an interview that the amendment to Section 230 is narrow enough that it only removes a website’s immunity if they knowingly enter into a venture with human traffickers, or if they intentionally promote prostitution.
“That is a very narrowly tailored, common sense bill. I think that any argument it will impair speech is just alarmist and misplaced,” she said.
Leary emphasized that criminal acts, such as prostitution and human trafficking, are not considered speech and have “never been protected by the First Amendment.”
“The Supreme Court has been quite clear that offers to engage in illegal activities are not protected speech,” she said.
Leary said testimony given to the Senate during the creation of the law singled out sites that are clearly “bad actors,” like Backpage, as opposed to the majority of websites that are “law abiding, good corporate citizens who want to end sex trafficking.” She said it is unlikely that most companies will simply look away and choose not to moderate content that promotes sex trafficking.
“That argument has not been proven by history,” she says. “There are many industries that, sadly, are places where sex trafficking takes place…hotels, travel and tourism, shopping areas, foster care facilities…these are places that have never had immunity. We have not seen them as an industry look the other way or pretend it doesn’t happen.”
In fact, she said, groups like the hotel industry have put together best practices to deal with illegal activities that take place on their premises. The new law does not require websites to police all content, but rather clarifies the purpose of Section 230, she said. There will be little effect for law abiding companies, because the law sets a high bar for prosecutors to prove that the company was knowingly and intentionally facilitating sex trafficking.
“What we will see are no longer companies out in the open, allowing and partnering with sex traffickers to sell women and children, with not only impunity but with absolute protection,” Leary said.
Some online groups, such as the Women’s March, claim that the shuttering of sites that are used by people who are not being trafficked will drive the already shady business of prostitution even further underground, and make conditions worse for people who choose to sell sex for a living. Advocates in favor of prostitution have already created several new websites that are hosted overseas, in countries like Austria, to avoid the alleged self-censorship of American-hosted sites.
Critics, however, challenged the idea that prostitution is a profession of choice for women.
“Nobody says when they’re a little girl, ‘I want to grow up to be a prostitute,’” said Dr. Grazie Christie, Policy Advisor for The Catholic Association, speaking on EWTN’s Morning Glory.
The National Center on Sexual Exploitation, a Washington D.C.-based group that supports the new legislation, has compiled a site detailing resources available to current workers in the sex industry to provide “housing, food, referrals, and other short-term emergency assistance.”
“We are also concerned for those who turned to prostitution out of despair, lacking any other financial resources, and who now do not know where to turn,” said Dawn Hawkins, executive director of NCOSE, in a statement. “We encourage the public to share these resources widely so that survivors of commercial sexual exploitation can seek healing and support.”