A new Senate bill targeting online sex trafficking has kicked off a battle between Capitol Hill and Silicon Valley, with tech giants and free speech advocates claiming the legislation undermines legal protections for expression and access to information online.
The backlash comes after the Senate introduced on Tuesday the Stop Enabling Sex Traffickers Act of 2017, a bipartisan-supported bill which would make websites liable for publishing third-party content that facilitates sex trafficking.
Sponsored by Sen. Rob Portman (R-OH), Richard Blumenthal (D-CT), and 20 other senators as of Wednesday afternoon, the bill is the result of a Senate subcommittee’s two-year investigation into online sex trafficking on Backpage.com, a classified ads website.
Led by Sen. Portman and Sen. Claire McCaskill (D-MO), the Senate subcommittee issued a report in January alleging that Backpage knowingly featured ads from sex traffickers alongside ads from sex workers and “covered up evidence of their crimes to increase profits.” (Backpage temporarily shuttered its adults services section shortly after the Senate sub-committee’s report was released, citing government pressure.)
Last month, Portman, McCaskill, and three others in Congress asked Jeff Sessions to launch a criminal investigation into Backpage. Their proposed Senate bill would amend Section 230 of the Communications Decency Act (CDA 230), a law that ensures websites and digital platforms aren’t liable for their users’ content and speech.
Internet companies are calling on the Senate to reject the bill, claiming its approach to combating online sex trafficking is counterproductive—and could chill speech.
On Wednesday, 10 tech trade associations—including those that represent Silicon Valley power players like Google, Facebook, and Amazon—outlined their objections to the bill in a letter to Senators Portman and Blumenthal. (Full disclosure: IAC, The Daily Beast’s parent company, is a member of the Internet Association, one of the letter’s signatories.)
“Rather than target criminals, including traffickers and buyers of victims, the proposed legislation would have a devastating impact on legitimate online services without having a meaningful impact on ending trafficking crimes,” the letter states, noting that Section 230 “explicitly promotes efforts by intermediaries to target illegal content online.”
The letter’s authors acknowledge that companies like Backpage.com should be held accountable for perpetuating online sex trafficking. But they argue that the Stop Enabling Sex Traffickers Act would do more harm than good.
“Unfortunately, the proposed legislation does not address the underlying criminal behavior and playing whack-a-mole with URLs/domains in civil courts is unlikely to stop bad actor websites that will simply move overseas and change their URLs to avoid being shut down,” they write, adding that “the legal ambiguity the amendment creates would have a chilling effect as platforms will err on the side of extreme caution in removing content uploaded by their users.”
The letter urged Congress to effectively prevent online sex trafficking and protect victims in collaboration with the Department of Justice, by increasing “targeting of rogue sites and coordination with international law enforcement to shut them down, and crucially, to end the culture of impunity for the criminals who buy sex.”
Senators Portman and Blumenthal criticized the letter’s “false claims” in a statement on Wednesday afternoon defending the new Senate bill.
“This bipartisan legislation preserves internet freedom while holding accountable anyone who actively facilitates online sex trafficking of women and children,” they said in statement emailed to The Daily Beast. “It is a narrowly-crafted legislation [sic] targets websites engaged in criminal activity: sex trafficking. And it allows victims of sex trafficking to impose civil remedies and seek justice.”
Proponents of the bill argue that Backpage was able to skirt civil and criminal action brought over its sex-related ads under Section 230 of the CDA. The new legislation aims to prevent similar websites from seeking legal immunity under Section 230.
But the bill’s detractors in Silicon Valley say doing away with this protection could make big digital platforms and small websites liable for anything their users say or do.
Kevin Smith, spokesperson for Sen. Portman, told The Daily Beast these claims were “laughable.”
“There’s a provision in the CDA called the ‘Good Samaritans’ provision, which protects good actors who proactively screen for sex traffickers,” he said. “The good actors would be protected against frivolous litigation under the law and this bill does nothing to change that. In our view, this bill preserves internet freedom while holding accountable those who facilitate online sex trafficking.”
But Chris Calabrese, vice president of policy at the nonprofit Center for Democracy and Technology (CDT), said it was “simply untrue” that the bill preserves internet freedom, or that companies who screen for offensive material and sex traffickers would be protected from lawsuits.
“If you create more liability you essentially force companies to either increase monitoring of their websites and take down content to avoid legal backlash,” he said.
Even worse, the risk of liability might lead to less content monitoring. “The practical result of this bill is that companies have less incentive to combat sex trafficking and limiting other sex-related stuff on their website,” said Calabrese.
Tech companies noted in Wednesday’s letter that Section 230 doesn’t apply to federal crimes around sex trafficking, which makes the new Senate bill unnecessary: If a digital platform is violating federal law, the Department of Justice already has the power to prosecute and punish that platform accordingly.
What’s more, Congress passed the Justice for Victims of Trafficking Act of 2015, which also included provisions to target sites like Backpage and was signed into law by then-President Obama.
Calabrese and others argue that the new Senate bill seems to be more about political grandstanding than affecting change. After all, when Craigslist killed its adult services section in 2010, the illegal activity continued on Backpage.
The danger of the Senate’s proposed legislation, critics say, is that it will only drive online sex trafficking to darker corners of the internet.