Uncertain Path Seen for Legislation Aiming to Halt Online Sex Trafficking
Momentum is building for floor consideration of legislation to curb online sex trafficking, but conflicting House and Senate approaches could stymie compromise if a bill passes one or both chambers, said lobbyists, victims’ advocates and committee aides. S-1693 passed by the Senate Commerce Committee (see 1711080042) appears to have a head start, with 60 co-sponsors, dozens of advocacy groups and the National Association of Attorneys General supporting the bill. The groups announced plans for a briefing and rally next Thursday to draw attention to the bill, the Stop Enabling Sex Traffickers Act.
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“SESTA is widely supported by all the key stakeholders in this debate, and I look forward to this event next week with advocates and trafficking survivors,” said a statement from SESTA author Sen. Rob Portman, R-Ohio, urging immediate action in the Senate. “What you’re seeing is a really strong rallying cry around SESTA because people realize how important the legislation is,” said Lauren Hersh, national director of World Without Exploitation. “We have to hold websites accountable. Prevention is critical,” said the former prosecutor, who said she wished a similar bill was on the books when she worked on online sex-trafficking cases.
Some tech, privacy and open internet proponents think HR-1865 is a more targeted approach that can punish sex traffickers. The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) "gets the job done without harming the future of the internet,” said Gigi Sohn, Open Society Foundations fellow. The Judiciary Committee passed FOSTA in November (see 1712120031), amending the original bill put forward by Rep. Ann Wagner, R-Mo., by adding provisions making it a crime to intentionally promote or facilitate prostitution, and strengthening penalties for facilitating prostitution and sex trafficking. Procedurally, the House Commerce Committee must approve FOSTA before it goes to the floor and hasn't completed its agenda for this session, aides told us.
The Internet Association backs both bills, after initially expressing concern (see 1709180044) about language in SESTA about a website’s culpability for knowing illegal activity is taking place. The “knowing” standard sets up a “moderator’s dilemma,” wrote Santa Clara University School of Law professor Eric Goldman. He said that if services are liable for what they know about third-party content, they may be less proactive about removing questionable content for fear of liability if the material later is found illegal. FOSTA requires intent to promote or facilitate illegal activity, Goldman said, avoiding the moderator’s dilemma. FOSTA specifically regulates online prostitution, so the bill narrowly “criminalizes the defendant’s attempt” to break the law, he said.
"We wildly support the [FOSTA] approach," said NetChoice General Counsel Carl Szabo, saying SESTA has the potential of unwinding online speech protections included in Section 230 of the Communications Decency Act. Without the section's protections, platforms could be held liable for content posted by users, and in sex trafficking, such content isn't immediately discernable as nefarious since traffickers tend to use code words to hide intent, Szabo said. "There's a reason why no action has been taken against sex traffickers under existing law," he said: "We've heard from prosecutors that it's a game of Whac-A-Mole" -- if perpetrators are found, they move elsewhere. FOSTA would set up a federal standard and "arm law enforcement to actually take action," Szabo said.
R Street Institute prefers FOSTA because it keeps the core of 230 mostly intact and takes a criminal law approach, said Zack Graves, director-technology and innovation policy. Graves shares Szabo's enthusiasm for a federal standard. "A better discussion should be around why the federal government isn't acting on these cases," he said. House Commerce is likely "move it along as quickly as possible," Graves said. He predicted a compromise on the two bills not only could be hard to strike, but might be something no one supports.
"That appears to be the intent behind crafting a bill that makes no sense to the community it purports to serve," SESTA advocate and film producer Mary Mazzio told us.