Fight Against Online Human Trafficking

Following the Example of The House of Representatives, Senate Votes in Favor of Amending the CDA

Yesterday, March 21, 2018, marks a significant victory in the fight against online human trafficking and commercial sexual exploitation. In a 97-2 vote, the Senate voted to pass a combination of the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (“FOSTA”), H.R. 1865, and S.B. 1693, the “Stop Enabling Sex Trafficking Act of 2017” (“SESTA”), which will amend the Communications Decency Act of 1996 (“CDA”), 42 U.S.C. § 230, to ensure that prosecutions and civil suits against corrupt website owners who knowingly facilitate trafficking will not be blocked by so-called “Good Samaritan” immunity.

This bill makes two major changes that will aid prosecutors in their fight against online human trafficking. First, FOSTA/SESTA will amend the United States Code by adding in a new statute, 18 U.S.C. § 2421A, which criminalizes “using a facility or means of interstate or foreign commerce . . . owns, manages, or operates an interactive computer service . . . or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person . . . .” Thus, under this new statute, when companies use their online platforms with the intent to promote or facilitate commercial sexual exploitation or human trafficking, they can now be held criminally liable. This amendment closes a significant gap in the existing law—currently, companies with online platforms were virtually free to engage in as much promotion or facilitation of trafficking as they pleased because they were shielded by the CDA’s immunity provisions.

For years, companies with online platforms, such as Backpage.com, have been actively involved in the exploitation of others, all in the name of their bottom line. Despite these blatantly irresponsible—and immoral—practices, these companies were often shielded from suit under §230(c), which has been interpreted to provide immunity from liability for websites owners who engage in screening methods, taken in good faith, to reduce illegal content on their sites. This “Good Samaritan” immunity provision, however, has been misused by companies like Backpage.com to create a shield behind which they can actively engage in the facilitation of trafficking. For further information Backpage.com and their illegal activities, see the Senate Investigatory Committee’s report, and the CSE Institute’s policy paper supporting the “Stop Enabling Sex Traffickers Act of 2017,” which was introduced prior to FOSTA.

The proponents of FOSTA/SESTA recognized this fatal flaw in the CDA, and, consequently, sought to amend it. Therefore, the second, and perhaps more important, change that FOSTA/SESTA will make is to the CDA itself: by including a specific exception to this immunity under §230(e) which will permit both prosecutions and civil suits to proceed under the federal trafficking laws, 18 U.S.C. §§ 1591 & 1595, and their state analogs. This change to the CDA will effectively ensure that there are no more cases like Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), where the court recognized that Backpage was complicit in the exploitation of the plaintiffs, but could not provide any remedy for the plaintiffs under the law.

The passage of FOSTA/SESTA through Congress signals that Congress is willing to take aggressive steps in bringing the extant law up-to-date to fight the issues that have arisen in today’s internet-driven society. The CSE Institute applauds their work in this area, and wants to thank Senators Portman, Blumenthal, and Representative Wagner for their tireless work on this issue. Now, more than ever, we are hopeful that Pennsylvania’s legislature will amend 18 Pa.C.S. § 3011 “Trafficking in Individuals” to include “advertises” as one of the predicate criminal acts to enable our Commonwealth’s prosecutors and plaintiff’s attorneys to sue under state law. This amendment would allow the state law to target trafficking where it happens most – through online advertisements. As the tactics used by traffickers to engage in this atrocious crime continue to evolve, the law must find ways to adequately respond.

Written by:

Shea Rhodes, Director
Villanova University Charles Widger School of Law or of Villanova University.

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