Congress recently passed a controversial human trafficking bill, drafted with the clear intention of prosecuting the owners of websites such as Backpage.com.
Why? Backpage.com looks and functions similarly to Craigslist by allowing users to post advertisements for various goods and services. However, a Senate investigation revealed that 93 percent of Backpage’s revenue was generated from the “adult services” section in which sex workers tout their services.
Unfortunately, victims of sex trafficking have been exploited through Backpage. In turn, the company has faced various lawsuits. The former attorney general of California and current U.S. senator Kamala Harris has indicted the owners of Backpage on several counts of pimping and crimes against minors.
Sacramento County Superior Court Judge Michael Bowman, however, dismissed the case. He argued that, generally speaking, the website’s users were responsible for human trafficking, not the owners of the website. He cited Section 230 of the Communications Act, which provides websites with legal protections from lawsuits related to actions by third-party users.
Section 230 is one of the primary statutes protecting free speech on the Internet by shielding website owners from lawsuits involving the conduct of website users. For instance, Nikolas Cruz, the 19-year-old who killed 17 high school students in Florida last month, might have posted violent comments on YouTube, but YouTube is immune from suits by the families of Cruz’s victims thanks to Section 230.
With that in mind, the recent bill passed by the Senate, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), amends Section 230 of the Communications Act in an attempt to combat sex trafficking. Clearly, abolishing sex trafficking is an issue with universal support, but there are multiple problems with this legislation.
While supporting the bill, Assistant Attorney General Stephen E. Boyd wrote a letter to the chairman of the House Judiciary Committee Bob Goodlatte expressing concern that FOSTA was unconstitutional because it is retroactive—that is it allows for the punishing of website operators “before, on or after” FOSTA is enacted. That’s particularly relevant considering that Backpage discontinued its “adult services” last year. Under FOSTA it could still be held liable for advertisements that are no longer on the site.
This bill has also triggered significant constitutional controversies involving free speech. The language of FOSTA is both vague and extremely expansive. It prohibits website owners from “promoting or facilitating prostitution.” That can obviously be subjected to wide interpretation, and the penalty for violating the new law is up to 10 years in prison.
Hence, multiple websites are erring on the side of self-censorship. That includes the news aggregation and discussion website Reddit, which has already shut down its online forums for discussions about prostitution.
Amending Section 230 is a terrible precedent and a slippery slope towards government regulation of the Internet and censorship. Predictably, several privacy and personal freedom organizations, including the Electronic Frontier Foundation, have criticized the expansive nature of the bill, worried that it could ultimately affect web content unrelated to prostitution:
The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) might sound noble, but it would do nothing to stop sex traffickers. What it would do is force online platforms to police their users’ speech more forcefully than ever before, silencing legitimate voices in the process.
An example of this is when Craigslist last month shut down its online dating section over a fear of frivolous lawsuits.
Worst of all, Congress didn’t need to pass FOSTA to shut down Backpage. Last Friday, the federal government seized Backpage’s domain and announced a 93-count indictment against the company. The charges included facilitating prostitution and money laundering, but not trafficking.
Eric Goldman, a professor at the Santa Clara School of Law, has written extensively on this issue. He aptly notes that other sites have been shut down with existing law. Section 230 provides websites with a lot of legal protection, but not “absolute immunity.”
For instance, a recent ruling in Massachusetts allowed a case to proceed against Backpage. Unlike the case in Sacramento County Superior Court, the company wasn’t acting in a neutral manner towards its third-party users; it was accused of editing the language of an ad to make an alleged underage trafficking victim appear to be an adult.
FOSTA is thus an unnecessary piece of legislation that imperils constitutional protections of free speech and against retroactivity. Nonetheless, it was passed in a widely bipartisan manner, in part because the issue of human trafficking has been oversimplified and this bill appears to take a tough line against it. Consequently, the only senators to vote against FOSTA were a pair of firm personal freedom advocates, Democrat Ron Wyden and Republican Rand Paul.
The largest group of anti-trafficking service providers and advocates in the United States, Freedom Network USA, has also criticized FOSTA, stating:
When websites are shut down, the sex trade is pushed underground and sex trafficking victims are forced into even more dangerous circumstances…This means trafficking victims face even more violence, are less likely to be identified, with less evidence of their victimization.
Regardless, several elected officials have cited overall human trafficking statistics to help drive support for legislation focused solely on sex trafficking. In an op-ed supporting FOSTA, Senator John Boozman noted that there are an estimated 25 million victims of human trafficking throughout the world. However, he didn’t mention that sex trafficking victims comprise a fairly low proportion (19 percent) of that estimate, according to the International Labour Organization.
Trafficking exists here in the United States, even if we don’t like to admit it. The most common victims are illegal immigrants. A recent example involved an Indian national who was forced to work seven days a week at a Super 8 motel in Nebraska for no pay. His traffickers physically abused him and used the leverage of his illegal status to keep him in servitude for years.
Legislation like FOSTA tends to divert federal resources towards sex trafficking and away from those more common forms of human trafficking. Most people are unaware that victims of human trafficking are more likely to work in industries such as domestic work, construction, or agriculture, not prostitution. FOSTA only perpetuates this delusion and for that reason it isn’t likely to solve anything.
Brian Saady is a freelance writer and author of Rackets, a three-book series focusing on the issue of drug legalization and gambling, and the decriminalization of prostitution. Visit his website and follow him on Twitter @briansaady.