Sex trafficking of children on the internet

Sex trafficking and the explosion of child pornography – or more appropriately called Child Sexual Abuse Material (CSAM) – continues to plague the U.S. Human trafficking is an estimated $150 billion industry, and over $90 billion of that is derived from the trafficking of people for sex. Out of an estimated 40.3 million sex trafficking victims, 25% are children. Almost 50% of the 25% of children trafficked are forced into making CSAM.

The rise of social media and e-commerce has facilitated the rapid growth of the CSAM market, most of which is created as the result of fraud, force or extortion. All of which is harmful and illegal. Over 40% of sex trafficking is conducted online, and is not hidden through encryption or found behind paywalls. A staggering 90% of online trafficking can be found on Facebook. Further, there has been a 125% increase of reports of trafficking on Facebook since the pandemic began. It has become easy and efficient to sell children for sex online, and to go undetected even when reported.

To be sure, the internet is the number one platform for customers to buy and sell sex with children in North America, which hosts 37% of CSAM material alone. Many sex buyers use the Internet to identify and connect with sellers and victims. Traffickers, in turn, use online networks, social media, websites and dating applications to disguise their identities while identifying potential victims – which reduces traffickers’ chances of getting caught by law enforcement. Worse still is that cases identified by law enforcement aren’t always pursued because the caseload is so great. Meanwhile, the material is readily available to anyone who knows which hashtags and search terms to use, though unless specifically searching, it is unlikely an unwitting social media user would stumble across traffickers. The platforms that harbor CSAM understand which hashtag to use, and have the technology to identify CSAM, find victims, and take down the material. Unfortunately, the platforms themselves are not reliable watch dogs because they can be dissuaded by increased activity and users – both of which translate into ad revenue.

Survivors of CSAM are significantly impacted – emotionally, mentally and physically. Most experience lifelong symptoms of shame and humiliation, powerlessness, hopelessness, fear, anger, anxiety and depression, as well as sleeping and body image disturbances, self-harm behaviors, eating disorders and suicidal ideation. Further, according to one study, survivors of CSAM are likely to be re-victimized and to receive blackmail and threats as a result of their initial victimization via CSAM.

The Federal Trafficking Victims Protection Act (and reauthorization)

In 2000 and in response to the growing problem of sex trafficking, Congress passed the Trafficking Victims Protection Act (TVPA). The statute laid the groundwork for the federal response to human trafficking.

In 2003, Congress reauthorized the TVPA and passed the Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, § 4(a)(4) (A), 16 117 Stat. 2875, 2878 (2003) (“TVPRA”). Under the TVPRA, trafficking victims can sue their traffickers in federal court.

In 2008, Congress amended the TVPRA to make it easier for victims of trafficking violations to bring civil suits. First, the civil remedy was expanded to include “enterprise” liability. Additionally, it was expanded to include anyone who “knowingly benefits, financially or by receiving anything of value from participation in a venture, which that person knew or should have known has engaged in an act ….” 18 U.S.C. § 1595(a). The statute of limitations is ten years, or ten years after the victim reached majority if the victim was a minor. See id. § 1595(c).

Commercialization of sex acts involving minors is a violation of the TVPRA. Under the TVPRA, whomever recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person, or benefits, financially (or by receiving anything of value), from participation in a venture which has engaged in an act by means of force, threats of force, fraud, coercion to cause a person under the age of 18 to engage in a commercial sex act can be held liable.

Under §1595(a), not only perpetrators who act “knowingly” under §1591, but also those that “knowingly benefits, financially or by receiving anything of value from participation in a venture, which that person knew or should have known has engaged in an act in violation of this chapter,” is civilly liable.

It can be successfully argued that online platforms knowingly benefit from CSAM being shared. By even allowing illegal content to be posted on their websites, platforms receive substantial advertising revenues. By encouraging and benefitting from CSAM, they participate in the venture and indeed facilitate the conduct of sex traffickers, including those sex traffickers who deal specifically with children and CSAM.

The Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act

In 2018, in response to platforms knowingly allowing for and profiting from human trafficking, Congress passed the bicameral legislation FOSTA/ SESTA. The legislation clarified that Section 230 of the Communications Decency Act – long used to whitewash their liability – would no longer immunize online platforms from TVPRA liability. In other words, FOSTA/SESTA was enacted to close that perceived loophole and to correct previous court opinions that protected platforms.

Because Section 230 was never intended to provide legal protection to websites that unlawfully promote and facilitate trafficking, and under the purported shield of Section 230, websites had long been “reckless in allowing the sales of sex trafficking victims and have done nothing to prevent the trafficking of children.” Section 230. PL 115-164, 132 Stat 14 1253 (2018).

The statute now makes it clear that websites and other platforms may be held liable for, among other things, knowingly assisting, facilitating, or supporting sex trafficking, and clarifies the Communications Decency Act’s Section 230 safe harbors to authorize enforcement of federal or state sex trafficking laws.

In conclusion, there is much that can and must be done to protect children from falling victim to rampant sex trafficking perpetrated online. It is far time to hold sex traffickers and platforms accountable.