How Federal Law Protects Online Sex Traffickers

It is a stain on our national character that sex trafficking is increasing in this country, in this century, and experts say it is happening because of the internet and the ruthless efficiency of online sex trafficking.

Sex trafficking has moved from the street corner to the smartphone, and online sex trafficking has predominately occurred through one website: Backpage.com.

Headlines tell the tragic stories: In March 2013, police reported that a Miami pimp forced a teen to tattoo his name on her eyelids. In June 2017 in Chicago, feds charged a man for prostituting a 16-year-old girl before her murder. That same month, three people were accused of pimping a pregnant teen for sex.

These heinous crimes, and countless others, involve Backpage, and yet the website has repeatedly evaded justice for its role in child sex trafficking.

The Senate Permanent Subcommittee on Investigations, which I chair, investigated Backpage for nearly two years. The committee’s groundbreaking report, released in January, found that the company knowingly facilitated online sex trafficking, coached its users on how to post so-called “clean” ads for illegal transactions, and covered up evidence of these crimes in order to increase its own profits.

Despite these facts, courts have consistently ruled that a federal law called the Communications Decency Act protects Backpage from liability for its role in sex trafficking. This 21-year-old law was designed to ensure websites aren’t held liable for crimes others commit using their website. The legislation has an important purpose, but now, because of broad legal interpretations, it is used as a shield by websites that facilitate the sale of women and children for sex.

The Communications Decency Act should not protect sex traffickers who prey on the most innocent and vulnerable among us. I do not believe those in Congress who supported this bill in 1996 ever thought that 21 years later, their vote would allow websites to knowingly traffic women and children over the internet with immunity.

However, courts and attorneys generals have made it clear that their hands are tied. In the most recent example, in August, a Sacramento judge threw out pimping charges against Backpage because of the liability protections afforded by this 1996 law, and he invited Congress to fix this injustice. The court opinion stated, “If and until Congress sees fit to amend the immunity law, the broad reach of section 230 of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking.”

This injustice is why I, along with more than two dozen of my colleagues from both sides of the aisle, introduced the Stop Enabling Sex Traffickers Act.

The bill would do two things. First, it would allow sex trafficking victims to get the justice they deserve by removing the law’s unintended liability protections for websites that knowingly facilitate online sex trafficking. Second, it would allow state and local law enforcement to prosecute websites that violate federal sex trafficking laws.

The bill will achieve these ends without threatening the years of progress we have made in creating a free and open internet. The standard for liability in our bill is a high bar to meet. It will protect good tech actors while targeting rogue online traffickers like Backpage. At a recent Senate Commerce Committee hearing on this bill, California attorney general Xavier Becerra testified to this point, stating, “The legislation that you have before you is very narrowly tailored. It goes only after sex trafficking.” I urge the committee to pass this bill soon, so that it can be voted on by the full Senate.

Some in the tech community incorrectly claim that this bill will expose innocent websites to frivolous lawsuits. But my Senate colleagues and I carefully crafted this legislation to remove immunity only for websites that can be proven to have intentionally facilitated online sex trafficking. There are already exemptions in the Communications Decency Act’s liability protections for intellectual property violations that exist without undermining the fundamental intentions of the law. It is unreasonable to suggest the result of a narrowly tailored exemption against knowing sex traffickers would be any different.

This bill’s common-sense changes will help bring the 21-year-old Communications Decency Act into the 21st century. Thirty-five senators—more than one-third of the Senate, from wide-ranging ideological backgrounds—are cosponsors of this legislation. Additionally, Oracle, Hewlett-Packard Enterprise, 21st Century Fox, the Walt Disney Company, and IBM, as well as the National Urban League all recently endorsed this legislation, in addition to dozens of anti-human trafficking, faith-based, and law enforcement groups. I’m hopeful that more in the tech community will partner with us to hold these online sex traffickers accountable and protect the vulnerable women and children who are bought and sold online.

We have a moral responsibility to protect the most vulnerable among us and combat this injustice. Every day we wait is too late for countless vulnerable women and children.

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