The battle over whether to cripple the internet as Americans know it in order to take a symbolic stand against sex-ads has been heating up.
This week, Republican Senators Ted Cruz, John McCain, and Marco Rubio joined a gaggle of their colleagues in co-sponsoring the “Stop Enabling Sex Traffickers Act,” a bill with broad bipartisan support from federal legislators but ample opposition from tech companies, constitutional wonks, web publishing platforms, and sex workers.
Why? According to the ’80s anti-pornography crusaders at Morality In Media—recently rechristened the National Center on Sexual Exploitation—it’s because Google "supports sex traffickers,” as does anyone else opposing the legislation.
Of course no one—not me, nor Google (which contributes to and partakes in a slew of anti-trafficking initiatives), nor The Internet Association (a trade group that includes members such as Twitter, Microsoft, AirBNB, Amazon, Yelp, Reddit, and Snapchat), nor the myriad think tanks, lawyers, and tech writers opposed to the bill—is arguing in favor of forced or underage prostitution. No one is arguing that companies have a right to knowingly profit off of sexual exploitation, nor that free speech includes a right to advertise sex trafficking.
But we already have a host of remedies (criminal and civil) for punishing such activities. Federal law already bans sex trafficking, conspiracies to commit sex trafficking, and knowingly facilitating it in any way.
"The problem today is not a lack of legal remedies but under-enforcement (or slow enforcement) by the U.S. Justice Department," suggested a group of tech scholars this week in a letter to senators. And under-enforcement is a problem the new bill would do nothing to address. Instead, it would actually "discourage online platform operators from policing their sites," by making doing so increase the likelihood of liability, "and generally undermine America's uniquely innovative online ecosystem."
The bill, introduced August 1 by Ohio GOP Sen. Rob Portman, has already attracted 27 co-sponsors, including a range of well-known Republicans and Democrats. It would "amend the Communications Act of 1934 to clarify that section 230 of that Act does not prohibit the enforcement" of criminal or civil "laws related to sex trafficking" against "providers and users of interactive computer services."
"Given the significant co-sponsor support for these bills, it’s pretty clear Congress is on the cusp of gutting Section 230," writes law professor Eric Goldman. And "this law potentially implicates every online service that deals with user-generated content, which would make this an unusually wide-ranging bill."
The measure is being sold as a way to shut down Backpage, a web-classifieds site scapegoated by politicians after they successfully bullied Craigslist into shuttering its “Adult” section years ago. Since then, both federal and state authorities have targeted a host of other online advertising forums for sex workers, including MyRedbook.com, The Review Board, and the gay escort site Rentboy.com. Last Wednesday, Rentboy founder Jeffrey Hurant was sentenced by a federal judge to six months in prison.
But the biggest target has been Backpage, which in the past few years has faced a county sheriff threatening credit-card companies who did business with it, pimping charges courtesy of Sen. Kamala Harris (then California attorney general), and the Senate's Permanent Subcommittee on Investigations seizing a trove of internal documents going back years. That's in addition to an array of civil lawsuits and investigative demands.
Politicians and activists would like pin this squarely on Section 230, but that's inaccurate.
The underlying reason why no one's been able to pin criminal charges on Backpage isn’t a “loophole” in federal law that lets Backpage knowingly profit from human trafficking but the fact that the evidence doesn't support claims that it does so. If it did, Section 230 would be irrelevant, and Backpage execs could be charged under a number of laws—including one 2015 law crafted for just this purpose. The Stop Advertising Victims of Sexual Exploitation Act specifically prohibits the knowing advertisement of sex trafficking victims, under threat of a 10-year mandatory minimum prison sentence.
Section 230 does protect web platforms and publishers from liability for the criminal conduct of users, but this comes with some important exceptions. Per the Ninth Circuit Court of Appeals, Section 230 doesn't apply to content that a platform has itself created "in whole or part," nor to one that "edits [user-created content] in a manner that contributes to the alleged illegality" or "is directly involved" in the alleged crime. But a website operator "who edits user-created content... retains his immunity for any illegality in the user-created content."
In other words, if you set up a site that said “Sell your illegal opioids, sex-trafficking victims, and human kidneys here!” it would not benefit from Section 230 protection, even if users are the ones directly selling these things. But if you set up a more general ad platform (and clearly state that illicit activity is forbidden), the fact that someone breaks your rules and tried to sell a kidney would be on them.
If Backpage is more like the first category, it's already punishable under criminal statutes and subject to civil claims. If it's only the former, than opening up Backpage to criminal charges and civil payouts opens up all of the internet to the same.
Without Section 230, any online media with a comments section could be prosecuted if one commenter makes a true threat against another. Twitter could get terrorism charges over ISIS-aligned accounts; Snapchat liable anytime anyone shared someone else’s photo without their consent; and services like Match.com or Tinder held responsible for violence committed during a hookup they brokered. It's the law that keeps companies from being either bogged down by frivolous lawsuits and prosecutions or monitoring and limiting what users can post so stringently that the internet ecosystem as we know it ceases to function.
Portman and company claim theirs is a narrow solution that will only target bad guys, but this is belied by the reality of our sex trafficking laws and the way we enforce them. Most people assume that “sex trafficking” must involve some element of abduction, violence, confinement, coercion, or threats, but this isn’t the case in America.
Under federal law, anyone under 18 who solicits sex for something of value is a trafficking victim, even if they have no trafficker. And anyone found to facilitate this in any way—including posting ads online, driving them to a "date," or trying to pay them for sex—can be charged as a child sex trafficker, regardless of whether they knew or had any reason to know the minor's real age or whether there is a real victim, not just an undercover cop.
Similarly, anyone—including another minor and/or young sex worker—who attempts to help someone under 18 sell sex can be convicted as a sex trafficker, even if the "victim" never acquiesces and no “trafficking” actually takes place.
With adults, an element of force, fraud, or coercion is generally required to bring sex trafficking charges. But there are other federal statutes—such as the Mann Act—still frequently employed against adult men and women who aid in the consensual prostitution of other adults.
And these days, authorities at all levels speak of “human trafficking busts” and “sex trafficking stings” when what they are really talking about it old-fashioned vice-squad work targeting independent adult sex workers and their would-be customers. Much of this is done under the umbrella of federally-funded Human Trafficking Task Forces and DOJ-approved grants to “end demand” for prostitution.
Which brings us back to congressional claims that a sex-trafficking exception to Section 230 would target a narrow range of conduct and bad internet actors. It's just not true.
Authorities already go after all sorts of consensual adult activity—some of it unquestionably legal, like sensual massage; some of it illegal (as prostitution is in every state except some of Nevada) but involving no violence or victims—under the guise of stopping sex trafficking. And Backpage is far from the only site where this sort of activity is advertised and negotiated. As it stands, cops are already chasing down prostitution and sex trafficking cases that originate on Facebook, Snapchat, random dating apps, and more.
As web-policy folks note, the new law would mean "online platforms could be accused of participating in sex trafficking that occurs through ordinary, non-advertising use of their sites," such as when two people arrange to meet through Facebook messenger.
With broader power to target web platforms, the financial incentives for abuse would be huge. Most of the people prosecuted for trafficking-related crimes are small-time pimps or sex workers themselves, working in a small-scale and relatively low-end manner. Their pockets are not deep. But Backpage? Facebook? Google? There’s money there, for cops with civil asset forfeiture dreams and civil-lawsuit payouts. And considering that any teenager who exchanges sex for pay, housing, etc. is legally considered a sex trafficking victim (plus cops are increasingly describing all adult sex workers as trafficking victims), it’s going to be incredibly easy for grifters of all ages, inside and outside the government, to set up situations where they can get big payouts from web companies.
Meanwhile, there's no evidence that any of this would actually curb sex trafficking, make minors safer, or solve any of the problems it's ostensibly meant to. Digital prostitution advertising can help keep sex workers safer, by allowing them to do things like pre-screen clients. And sites like Backpage—which are visible to anyone, including law-enforcement; make good-faith efforts to screen ads, reporting suspected underage posters to authorities; and turn over data on sex-trafficking suspects—actually help law enforcement fight sexual exploitation way better than they could if it's driven further underground (be that the dark web or the streets).
Plus, all the attention to Backpage distracts from things that could actually serve victims, like opening more emergency shelters, or decriminalizing prostitution between consenting adults. We could stop giving “victims services” grants to groups that offer yoga and art therapy but nothing to help victims with tangible needs, such as housing and employment.
It seems folks like Portman and Cruz won’t rest until sex workers—and sex trafficking victims—are forced back out onto the streets and the social web as we know it is destroyed. But the only thing this grandstanding gesture might help is their political careers. Victims of sexual exploitation won’t be one iota safer when lawmakers shut down Backpage. And they won’t stop at Backpage.