U.S. Senate passes online sex trafficking bill

The U.S. Senate overwhelmingly passed an anti-sex trafficking bill Wednesday that critics say could endanger the lives it intends to protect and chill internet innovation by making websites liable for criminal content.

The Allow States and Victims to Fight Online Sex Trafficking Act, a combination of two proposed bills, would allow for criminal and civil prosecution of websites that are “knowingly assisting, supporting, or facilitating a violation” of sex trafficking laws.

Senate Majority Leader Mitch McConnell, R-Kentucky, said the bill was “a common sense reform” designed to meet changes in technology that have moved sex traffickers “from the street corner to the smartphone.”

The bill would limit the applicability of Section 230 of the Communications Decency Act, which provides that no “interactive computer service” should be “treated as the publisher or speaker” of content posted on their site by another person.

That provision has been “misused,” McConnell said, serving as shield to “companies that facilitate and profit from the disgusting exploitation of women and children.”

U.S. Rep. Ann Wagner, R-Missouri, who introduced the composite bill, has said it gives prosecutors “the tools they need to hold websites accountable for sex trafficking.”

The bill passed 97-2, with U.S. Sen. Ron Wyden, D-Oregon, and U.S. Sen. Bernie Sanders, I-Vermont, voting against. Wyden was harshly critical of the bill, saying its impact would deviate wildly from Congress’ intent.

Wyden said his fellow senators were too eager to “drive it through as is” without acknowledging contentious portions of the bill. Citing statements from the U.S. Department of Justice, Wyden said the procedural changes the bill proposes would “effectively create additional elements that prosecutors must prove at trial.”

He also said the bill “punches a hole in the legal framework of the open internet,” as it would force sites to consider what has been described as “the moderator’s dilemma.” Websites would need to take an all-or-nothing approach to moderation out of fear of liability, Wyden said.

And since the average startup or small business website doesn’t have the resources or manpower to employ that level of moderation, they’d likely stop trying to moderate content whatsoever.

Sex traffickers would simply “recede to the dark web” with the bill’s passage, Wyden said, where law enforcement would have a harder time tracking them.

Wyden said that the bill’s biggest supporters within technology companies like Facebook and Google are well-entrenched enough that content moderation wouldn’t be an issue.

“This is not better for innovation, it’s not better for consumers, but it is better for those who are lucky enough to reach the top of the mountain first,” he said.

Wyden proposed an amendment that would protect those who moderate their websites from being held liable for “facilitating” sex trafficking. But the amendment, which U.S. Sen Rob Portman — R-Ohio — said is a “poison pill” that would derail the legislation, was overwhelmingly rejected.

Outside of Congress, the bill has come under fire from some of the groups it’s intended to protect. Kate D’Adamo, national policy advocate for the advocacy group Sex Workers Project, said the bill wouldn’t just fail to accomplish what it’s set out to do, it could get prostitutes who operate through the internet killed.

“I understand what they’re trying to do with the bill — to create industry standards — but the way they’re trying to do that is going to cause collateral damage,” D’Adamo said.

While some websites have been criticized for providing sex traffickers a platform, D’Adamo said prostitutes use these websites to create a wall of separation between themselves and potentially dangerous clients.

If websites are too concerned with legal repercussions to justify serving as host to prostitutes, D’Adamo said they would return to the streets, robbing them of a chance to screen for potential danger.

And if prostitutes do end up being trafficked, the lack of an online footprint will make the job of finding them that much harder for investigators, D’Adamo said.

Proponents of the bill say that many objections to it are largely the result of misinformation.

Mary Mazzio, an attorney who produced the 2017 Netflix documentary, “I Am Jane Doe,” detailing the legal battle against the ad website Backpage.com, said the bill was narrowly crafted to allow victims to hold accountable website platforms which knowingly facilitate the crime of sex trafficking, particularly in cases involving children.

A criminal case against three Backpage principals was partially dismissed after Sacramento County Superior Court Judge Michael G. Bowman found that all criminal charges, with the exception of money laundering, were preempted by the Communications Decency Act.

That dismissal, along with the dismissal of a 1st U.S. Circuit Court of Appeals case in which the court ruled that Backpage was protected from liability, has been cited by the bill’s supporters as prime examples of the current law’s failing.

While critics of the legislation have said websites that knowingly facilitate sex trafficking already face liability, Mazzio said the cases prove otherwise. Judges have ruled that the Communications Decency Act shielded sites like Backpage from liability in ways the law’s creators hadn’t intended.

Mazzio said Section 230 is a “loophole” that requires an “incredibly radical stretch” when examining the act’s stated intent.

“What [the bill] does is clarify that a sex trafficking case against a website which knowingly facilitates that crime cannot be dismissed before it gets to court.” Mazzio said. “The case can still be dismissed on summary judgment or for other reasons. But no longer will these cases be automatically dismissed at the outset. This is not a referendum on prostitution.”

Technology has come a long way in the 20-plus years since the Communications Decency Act was implemented, Mazzio said, and the law should be updated to reflect those advances.”Harm is happening online that was never even contemplated back in the 1990s.”