Administrative Law

Section 230 of the Communications Decency Act, the FOSTA Amendment, and its Impact on Online Sex Trafficking

TLR BLOG

By Kaitlyn Wells

 

Historically, human trafficking has plagued societies for centuries, and modern advancements in science and technology have contributed to an increase in trafficking.  A contributing factor to the rise of human trafficking victims is the internet.  Section 230 of the Communications Decency Act (hereinafter “CDA”) played a significant role in the promotion of online sex trafficking.[1]  CDA § 230 provides immunity to providers and users of interactive computer services who publish information provided by third parties.[2]  “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[3]

Websites such as Backpage.com have shielded themselves behind the CDA, an act created to regulate pornographic material on the internet, to avoid state criminal and civil litigation.[4]  The federal government had remained silent on this increasingly alarming issue until recently when the Senate passed a bill, called “The Allow States and Victims to Fight Online Sex Trafficking Act” (hereinafter “FOSTA”).[5]  President Donald Trump signed the bill into law on April 11, 2018.[6]

Section 2 of FOSTA states that § 230 of the CDA was not intended to afford legal protection to websites that “promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.”[7]  Since President Trump has signed the bill into law, FOSTA has met a great deal of criticism.  In June of 2018, The Electronic Frontier Foundation filed complaints in federal district court claiming FOSTA’s broad scope violates the First Amendment right to free speech.[8]  FOSTA, an amendment to § 230 of the CDA, is a necessary step towards combating online sex trafficking.  Part I will discuss a brief history of § 230 of the CDA; Part II will provide a brief history of sex trafficking; Part III will discuss the correlation between the CDA and online sex trafficking; and Part IV will discuss FOSTA and its critics.

Part I: The History of Section 230 of the CDA

Senator Jim Exon of Nebraska introduced the 1996 Amendment to the CDA.[9]  This Amendment extended the anti-harassment, indecency and anti-obscenity restrictions that were already placed on telephone calls to “telecommunication devices” and “interactive computer services.”[10]  The 1996 Amendment to the CDA stood for the premise that it was just as wrong to provide pornography to children on computers as it was to do it on the street or anywhere else.[11]  The CDA made it a crime to knowingly use an interactive computer to send indecent material in a mode accessible to children.[12]  The CDA does not ban any constitutionally protected materials from adults.  The Supreme Court has repeatedly recognized that protecting children from indecency is a compelling state interest.[13]   Congress modeled the CDA “after the existing dial-a-porn law which allow[ed] telephone sex services to ply their wares to adults but prohibit[ed] access by minors.”[14]  The Supreme Court held that the dial-a-porn law did not violate the First Amendment.[15]

In August of 1995, the Cox-Wyden Amendment was enacted which modified the CDA, and later became § 230 of the act.  The Cox-Wyden Amendment protected online services that make a “good faith effort” to restrict access to offensive material.[16]  “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[17]  Many cases have been dismissed based on interactive service providers asserting the defense that, pursuant to § 230 of the CDA, they were not in violation of any laws.  More simply stated, providers and users assert the defense that they cannot be held liable for the actions of third-party publishers or speakers.[18]

In Zeran v. America Online, Inc.,[19] a customer sued America Online, an internet service provider, in federal district court because of alleged unreasonable delay in removing defamatory messages posted by an anonymous third-party user.[20]  The district court ruled in favor of America Online because section 230 of the CDA barred the customer’s claims.[21]  The district court held that Congress measured the weight of the speech interests implicated and elected to immunize service providers to avoid any restrictive result.[22]  The Fourth Circuit held that Congress intended to give broad immunity to internet providers when faced with possible liability because of messages originated by third-party users.[23]

For years, websites have been immune from liability under the CDA § 230 as long as the website is an interactive computer service and the posting is that of a third-party publisher or speaker.  It was not until websites began using this shield to avoid legal action regarding sex trafficking that the government finally stepped in.

Part II: History of Online Sex Trafficking

The National Human Trafficking Hotline (hereinafter “NHTH”) is a national anti-trafficking hotline servicing victims and survivors of human trafficking, as well as the anti-trafficking community in the United States.[24]  Since 2007, the NHTH reported a total of approximately 28,291 cases of sex trafficking, and in 2017 alone, the NHTH reported approximately 5,579 sexually trafficked victims, 1,954 of which were minors.[25]  NHTH defines trafficking as “[t]he recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purposes of a commercial sex act, in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age.”[26]  Human trafficking is the third fastest growing criminal activity.[27]  According to the International Labor Organization, there are approximately 40.3 million victims of human trafficking worldwide, with hundreds of thousands in the United States alone.[28]  In the United States a person is guilty of sex trafficking by force, fraud or coercion, under federal law, when:

(a)Whoever knowingly—

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or

(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1), knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).[29]

 

Under the United States definition, transportation or physical movement of the victim does not necessarily need to be present for the crime to occur.[30]  The mere presence of exploitation (force, fraud, or coercion) indicates whether a trafficking crime has occurred.[31]

Victims of sex trafficking can be in any number of services within the sex trafficking industry including, but not limited to, prostitution, strip clubs, live-sex shows, mail-order brides, escort services, and fake massage businesses.  Many victims of sex trafficking are sold and bought online through websites like Craigslist, Backpage, HarlotHub, Eros, and Switter, to name a few.  A common misconception about human trafficking is that the victims are all trafficked into the United States from other countries.  This is simply not the case.  While some victims are trafficked and transported into the United States, many of the trafficking victims are United States citizens.[32]  There is no single profile for trafficking victims; trafficking occurs in rural, suburban, and urban communities across the country.[33]  Victims of human trafficking can be adults and children and have diverse socio-economic backgrounds and different levels of education.[34]  Traffickers target victims using methods of recruitment and control that they find to be effective in compelling that victim into commercial sex.[35]  The internet alone allows for many people from all walks of life to fall victim to sex trafficking.[36]

Part III: The Correlation between the CDA and Online Sex Trafficking

Section 230 was intended to shield interactive internet sites from liability for subject matter posted by their users.[37]  It treats internet companies like libraries: a library is not responsible for the offense people take to the content of the books it carries, just like a website is not responsible for the offense that people take to comments and posts by other users.[38]  Backpage.com is a classified advertising website that was launched in 2004 and is similar to Craigslist.[39]  Backpage is most known for its “adult” classifieds section.  Backpage featured ads from prostitutes, escorts, and sex trafficking victims.[40]  Websites such as Backpage have shielded themselves behind the CDA to avoid state criminal and civil litigation.

Backpage consistently used § 230 of the CDA as a defense against liability until the FBI seized Backpage in February of 2018.[41]  Backpage would cite to the statute’s language that states “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[42]  Backpage claimed that it could not be charged for online users content, i.e., a pimp posting an advertisement prostituting a victim of sex trafficking.[43]  The most notorious case regarding Backpage is Doe v. Backpage.com, LLC.[44]  In Doe, three sex trafficking victims sued Backpage.com alleging that Backpage created or changed, expressly or impliedly, the advertisements regarding these victims on its website.[45]  More specifically, Jane Doe 1, Jane Doe 2, and Jane Doe 3 alleged that Backpage violated the Trafficking Victims Protection Reauthorization Act of 2008, 18 U.S.C. § 1595; Massachusetts Anti-Human Trafficking and Victim Protection Act of 2010, Mass. Gen. Laws ch. 265, section 50; and Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A, section 9.[46]  Each Doe also alleged violations of their individual intellectual property rights.[47]  With regard to Jane Doe 1 and Jane Doe 2, the court held that their complaint was lacking factual allegations that reasonably supported the claim that Backpage created content.[48]  Therefore, the CDA barred their claims.[49]  However, with regard to the ad about Jane Doe 3, the court held that Backpage substantially changed the ad.[50]  Therefore, the CDA did not bar Jane Doe 3’s claims.[51]  There is no doubt that the actions of Backpage.com consistently hiding from liability under § 230 of the CDA was a factor Congress looked to when deciding whether to pass the FOSTA.

Part IV: The FOSTA and its Critics

The FOSTA was signed into law by President Trump on April 11, 2018.[52]  This Act is an amendment to 47 U.S.C. § 230.  FOSTA was necessary to express that it was not the intention of Congress to afford legal protection to websites that “promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.”[53]  More specifically, the FOSTA states:

(1) section 230 of the Communications Act of 1934 (47 U.S.C. § 230; commonly known as the “Communications Decency Act of 1996”) was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims;

(2) websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion; and

(3) clarification of such section is warranted to ensure that such section does not provide such protection to such websites.[54]

 

In response to FOSTA, the website Craigslist.com released a statement expressing that, due to FOSTA, Craigslist.com can be subject to criminal and civil liability when third-party users of the website misuse Craigslist’s personal advertisement section unlawfully.[55]  Craigslist further stated “[a]ny tool or service can be misused.  We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline.”[56]  A pimp can no longer solicit a sex trafficking victim on Craigslist.  However, an advocate for sex workers could argue that sex workers can no longer find work through Craigslist or Backpage.com, forcing him or her to look to the dark web or the streets for a job.

Prior to the FOSTA Amendment, the CDA was praised as a “core pillar of internet freedom” and “the most important law protecting free speech online” that “gave us the modern internet.”[57]  The Electronic Frontier Foundation (hereinafter “EFF”), a nonprofit that defends civil liberties in the digital world, is afraid that the increased potential for liability will cause online services to become much more restrictive and “err on the side of censorship.”[58]  The EFF was founded in 1990 and works to ensure that rights and freedoms are protected as the internet grows.[59]  According to the EFF, “FOSTA attacks online speakers who speak favorably about sex work by imposing harsh penalties for any website that might be seen as ‘facilitating’ prostitution or ‘contribute to sex trafficking.’”[60]

FOSTA is necessary to combat online sex trafficking.  There were flaws in the CDA that made FOSTA necessary.  The biggest flaw of the CDA was the enablement of Backpage using 47 U.S.C.S. § 230(c) as a shield, thereby allowing traffickers to use the website to sexually exploit victims on their website.[61]  A perfect example of Backpage using the CDA as a shield is the Doe case.[62]  However, if Doe were to have occurred after the enactment of FOSTA, Backpage would not have been able to hide behind the CDA so long as the plaintiffs could prove that Backpage promoted and facilitated prostitution and had done nothing to prevent the trafficking of children and victims.  After Backpage was seized, the CEO of Backpage, Carl Ferrer, pleaded guilty in three state courts to money laundering and conspiracy to facilitate prostitution.[63]  Backpage was doing precisely what the CDA was not supposed to protect—changing and creating ads and knowingly taking money from pimps to post ads on its website exploiting trafficking victims.[64]

In June of 2018, the EFF filed a complaint in federal district court claiming FOSTA’s broad scope violates the First Amendment.[65]  The EFF released a statement on its website about the lawsuit stating that it is asking the court to deem FOSTA unconstitutional.[66]  It further explains that, in its own opinion, the “law was written so poorly that it actually criminalizes a substantial amount of protected speech and, according to experts, actually hinders efforts to prosecute sex traffickers and aid victims.”[67]  This is simply untrue; the FOSTA was specifically created to help stop sex trafficking.  Senator Rob Portman, from Ohio, one of the creators of the law, explained that the FOSTA is not a free speech issue but instead about protecting victims of sex trafficking.[68]  The CDA protects websites so long as a website is not knowingly promoting or facilitating prostitution, which is a crime in forty-nine states, and facilitating traffickers in advertising sex trafficking victims.[69]  There is a compelling government interest in protecting people (adults and children) from being sexually exploited online.

Section 230 of the CDA limits the legal liability of interactive websites for content that was posted by a third party.  Section 2 of the FOSTA states that § 230 of the Communications Act of 1934 was not intended to afford legal protection to websites that “promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.”[70]  While the EFF argues that the FOSTA violates the First Amendment, the FOSTA is a necessary and long overdue amendment to the CDA and is a massive step towards combating online sex trafficking.

[1] Danah Boyd et al., Human Trafficking and Technology: A Framework for Understanding the Role of Technology in the Commercial Sexual Exploitation of Children in the U.S., http://www.indiana.edu/~traffick/_resources/_literature/_research/_assets/Human-Trafficking-and-Technology.pdf

[2] 47 U.S.C.S. § 230 (LexisNexis 2018).

[3] Id.

[4] Id.  Section 230 of the CDA was not part of the original Senate legislation but was separately introduced by Representatives Chris Cox of California and Ron Wyden of Oregon as the Internet Freedom and Family Empowerment Act.  Congressional Record, Congress.gov (Aug. 4, 1995), https://www.congress.gov/congressional-record/1995/08/04/house-section/article/H8460-1.  Cox and Wyden wanted to make sure that, while everyone in the United States has an open invitation to the internet, there is certain offensive material that children should not see.  Id.  The statute was intended to screen offensive material and to provide protection from taking on liability to computer “Good Samaritans,” which are online service providers who take steps to screen indecent and offensive material for their customers.  Id.  Section 230 established as policy that the United States does not wish to have content on the internet regulated by the Federal Government.  Id.

[5] Colin Lecher, Senate Passes Controversial Anti-Sex Trafficking Bill, Verge (Mar. 21, 2018, 4:23 PM), https://www.theverge.com/2018/3/21/17147688/senate-sesta-fosta-vote-anti-sex-trafficking.

[6] Tom Jackman, Trump signs ‘FOSTA’ Bill Targeting Online Sex Trafficking, Enables States and Victims to Pursue Websites, Wash. Post (April 11, 2018), https://www.washingtonpost.com/news/true-crime/wp/2018/04/11/trump-signs-fosta-bill-targeting-online-sex-trafficking-enables-states-and-victims-to-pursue-websites/?noredirect=on&utm_term=.21bafe66e9fd.

[7] 115 Pub. L. No. 164, 132 Stat. 1253 (2018).

[8] David Greene, EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law, EFF (June 28, 2018), https://www.eff.org/deeplinks/2018/06/eff-sues-invalidate-fosta-unconstitutional-internet-censorship-law.

[9] Robert Cannon, The Legislative History of Senator Exon’s Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 Fed. Comm. L.J. 51 (1996).

[10] Id. at 51.   An interactive computer service is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”  47 U.S.C.S. § 230(f)(2) (LexisNexis 2018).

[11] Cannon, supra note 9, at 77.

[12] Cannon, supra note 9, at 57.

[13] Cannon, supra note 9, at 58.

[14] Jim Exon, The Communications Decency Act, 49 Fed. Comm. L.J. 95, 96 (1996).

[15] Id. at 96.  See Sable Commc’ns of Cal. v.   FCC, 492 U.S. 115 (1989).  Congress took great care in drafting the law to protect children from indecency as the Supreme Court had consistently acknowledged that as a compelling state interest.  Exon, supra note 14, at 96.

[16] Cannon, supra note 9, at 61.

[17] 47 U.S.C.S. § 230 (LexisNexis, 2018).

[18] Id.  § 230(c).

[19] 129 F.3d 327 (4th Cir. 1997).

[20] Id. at 328.

[21] Id. at 329.

[22] Id. at 331.

[23] Id. at 328.

[24] Human Trafficking, Human Trafficking Hotline, https://humantraffickinghotline.org/type-trafficking/human-trafficking (last visited Sept. 1, 2018).

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] 18 U.S.C.S. § 1591 (LexisNexis 2018).

[30] Id.; 18 U.S.C.S. § 1584.  Fact Sheet: Human Trafficking, Office on Trafficking in Persons (Nov. 21, 2017), https://www.acf.hhs.gov/otip/resource/fshumantrafficking

[31] Fact Sheet: Human Trafficking, supra note 30.

[32] Fact Sheet: Human Trafficking, supra note 30.

[33] Fact Sheet: Human Trafficking, supra note 30.

[34] Fact Sheet: Human Trafficking, supra note 30.

[35] Fact Sheet: Human Trafficking, supra note 30.

[36] In Los Angeles, police arrested a teenage girl for prostitution.  U.S. Attorney’s Office, Man Pleads Guilty and Is Sentenced to 17½ Years in Federal Prison for Sex Trafficking of Minors, Fed. Bureau Investigation: L.A. Division, June 10, 2010, http://www.fbi.gov/losangeles/press-releases/2010/la061010.htm.  Investigators learned that the teenage girl was a runaway working for Dwayne Lawson.  Lawson “contacted the girl in the fall of 2008 on Myspace.com and, after promising to make her a ‘star,’ gave her a bus ticket from Florida to Las Vegas, Nevada.”  Id.  Once the teen arrived in Nevada, Lawson brought the girl to California where she worked for him as a prostitute.  Id.

[37] 47 U.S.C.S. § 230 (LexisNexis 2018).

[38] Emily Stewart, The Next Big Battle Over Internet Freedom is Here, Vox (Apr. 23, 2018, 12:20 PM), https://www.vox.com/policy-and-politics/2018/4/23/17237640/fosta-sesta-section-230-internet-freedom.

[39] Derek Hawkins, Backpage.com Shuts down Adult Services Ads after Relentless Pressure from Authorities, Washington Post, (January 10, 2017) https://www.washingtonpost.com/news/morning-mix/wp/2017/01/10/backpage-com-shuts-down-adult-services-ads-after-relentless-pressure-from-authorities/?utm_term=.5baa004c9824.

[40] Martha Irvine, Backpage Ad Site: Aider of Traffickers, or Way to Stop Them?, Seattle Times (Aug. 16, 2015, 6:44 PM), https://www.seattletimes.com/seattle-news/backpage-ad-site-aider-of-traffickers-or-way-to-stop-them/.

[41] Doe v. Backpage.com, LLC, No. 17-11069-LTS, 2018 U.S. Dist. LEXIS 53198 (D. Mass. Mar. 29, 2018); Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96 (D.D.C. 2016); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 2013); Backpage.com, LLC v. Dart, No. 15 C 06340, 2015 U.S. Dist. LEXIS 112161 (N.D. Ill. Aug. 24, 2015).

[42] 47 U.S.C.S. § 230(c) (LexisNexis, 2018).

[43] Doe v. Backpage.com, LLC, No. 17-11069-LTS, 2018 U.S. Dist. LEXIS 53198, *5 (D. Mass. Mar. 29, 2018).

[44] Id.

[45] Id at *3.

[46] Id. at *2.

[47] Id.

[48] Id.

[49] Id. at *5.

[50] Id.

[51] Id.

[52] Colin Lecher, Senate Passes Controversial Anti-Sex Trafficking Bill, Verge (Mar. 21, 2018, 4:23 PM), https://www.theverge.com/2018/3/21/17147688/senate-sesta-fosta-vote-anti-sex-trafficking.

[53] 115 Pub. L. No. 164, 132 Stat. 1253 (2018).

[54] Id.

[55] FOSTA, Craigslist, https://www.craigslist.org/about/FOSTA (last visited Sept. 1, 2018).

[56] Id.

[57] Greene, supra note 8.

[58] Id.

[59] Id.

[60] Anna Schecter & Dennis Romero, FOSTA Sex Trafficking Law Becomes Center of Debate About Tech Responsibility, NBC News (July 19, 2018, 3:33 PM), https://www.nbcnews.com/tech/tech-news/sex-trafficking-bill-becomes-center-debate-about-tech-responsibility-n892876.

[61] Doe v. Backpage.com, LLC, No. 17-11069-LTS, 2018 U.S. Dist. LEXIS 53198, (D. Mass. Mar. 29, 2018); Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96 (D.D.C. 2016); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 2013); Backpage.com, LLC v. Dart, No. 15 C 06340, 2015 U.S. Dist. LEXIS 112161 (N.D. Ill. Aug. 24, 2015).

[62] Doe v. Backpage.com, LLC, No. 17-11069-LTS, 2018 U.S. Dist. LEXIS 53198 (D. Mass. Mar. 29, 2018).

[63] Backpage CEO Carl Ferrer Says He’ll Testify Against Site’s Founders, NBC News (Apr. 12, 2018, 9:41 PM), https://www.nbcnews.com/news/us-news/backpage-ceo-carl-ferrer-says-he-ll-testify-against-site-n865616.

[64] Id.

[65] New Lawsuit Challenges FOSTA–The Federal Law Sparking Website Shutdowns, EFF (June 28, 2018), https://www.eff.org/press/releases/new-lawsuit-challenges-fosta-federal-law-sparking-website-shutdowns.

[66] Greene, supra note 8.

[67] Greene, supra note 8.

[68] Schecter & Romero, supra note 60.

[69] 47 U.S.C.S. § 230(c) (LexisNexis 2018).

[70] 115 Pub. L. No. 164, 132 Stat. 1253 (2018).

Executive Privilege from the Judicial Process: Indictments, Criminal Proceedings, and Pardons

TLR BLOG

By Nicholas Maggio

On August 21, 2018, President Donald Trump’s former personal attorney, Michael Cohen, admitted in federal court that, during the 2016 campaign, Mr. Trump ordered him to arrange payments for two women with the principal purpose of influencing the election.[1]  This is a recent development surrounding the special counsel investigation into whether Russia interfered with the 2016 United States Presidential elections. Investigators are looking into any coordination between the Trump election campaign and Russian officials and whether President Trump obstructed justice by lying or withholding information from the investigation.[2]  Most notable about Mr. Cohen’s admission is that it directly implicates the president as a co-conspirator in a proven federal crime.[3]

However, it remains unclear whether a sitting United States president can be indicted.  In 1973, the Department of Justice Office of Legal Counsel (“OLC”) issued a memo arguing that a sitting president could not be indicted.[4]  It reiterated this argument in 2000 after President Clinton’s sex scandal.[5]  The OLC argued that the nature of criminal proceedings, including the indictment process, would unduly interfere with the conduct of the president.[6]  The memos equated an  indictment to an incapacitation of the president.[7]  Accordingly, the memos concluded that indicting a sitting president would unconstitutionally impair the executive from executing his constitutional obligations.[8]

It is uncertain whether these are official Department of Justice policies.  The OLC argues that these memos are binding policies.[9]  Robert Mueller, the head of the special investigation, stated he would follow these memos as they relate to bringing an indictment.[10]  Nevertheless, legal scholars disagree whether the memos are binding authority of prosecutors and the Special Counsel.[11]  For instance, the arguments set forth in these memos are not settled law as they are neither found in statutes nor case law.  No court, including the Supreme Court of the United States, has heard a case or ruled on whether a sitting president can be indicted.

The author argues that prosecutors should bring their indictments and let the Supreme Court decide the constitutionality of their action.  The Department of Justice’s memos should not preclude this issue from going to the nation’s highest court.  Article 2, section 1, clause 6 of the United States Constitution provides the precedent conditions and procedure for replacing a sitting president.[12]  Specifically, the clause details that a president’s “inability to discharge the powers and duties of said office” shall allow for a new officer to act as the president until the disability is removed or a new president is elected.[13]  Clauses 3 and 4 of the 25th Amendment further clarify replacement procedures when a president can no longer discharge his duties.[14]  Thus, if an indictment would interfere with the President discharging his constitutional duties, we should utilize the provisions already in place.

The Constitution

There are no constitutional provisions dealing with whether a sitting president can be criminally indicted.  The recorded discussions during the Constitutional Convention do not help clarify the issue of presidential immunity from indictments either.[15]  Instead, the Constitution provides for the conditions under which a President may be removed from office.

In article 2, section 1, clause 6, the Constitution reads in relevant part: “[i]n Case of the . . . [i]nability to discharge the Powers and Duties of the said Office, . . . the Congress may by Law provide the Case of Removal . . . .”[16]  The records of the Federal Convention do not provide much clarity concerning how criminal indictments relate to this provision.[17]

The lack of case law on the subject forces one to turn towards peripheral, secondary sources of authority.  Some early analysis of the Constitution highlights how our system allows for indictments of officials in contrast to the English system.[18]  For instance, Patrick Henry, an American attorney and Founding Father, gave a speech suggesting that a President could be  indicted while in office.[19]  Modern legal scholars recognize founding figures’ conclusions that a President should not enjoy immunity from indictment while in office.[20]

The 25th Amendment

The 25th Amendment serves to clarify the order of succession and procedures in place to succeed a President.  However, there is a lack of law or instances that help define when one should invoke this amendment.  In relevant part, section 3 of the 25th Amendment reads that:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.[21]

Before passing the 25th Amendment, Congress conducted studies among legal scholars to determine what qualifies as an “inability” under the Constitution.[22]  While some survey responses contend that a disability should be defined as what the founders could have medically contemplated at their time, others argue that it is a practical matter concerning whether the president is discharging the duties of his office.[23]

There is only a small pool of Presidents that had their powers removed under the 25th Amendment.  In 1985, President Reagan penned a letter charging then-Vice President Bush with discharging presidential powers and duties.  This precipitated Reagan’s undergoing surgery, which left him temporarily incapacitated.[24]  President Reagan soon resumed his powers after his surgery.[25]  In 2002, President George W. Bush penned a letter discharging his duties to the Vice President under the 25th Amendment.[26]  This letter also preceded a medical procedure that required sedation.[27]  President Bush discharged his duties again in 2007 before another routine medical procedure that required sedation.[28]  He resumed his powers shortly thereafter both times.[29]

Office of Legal Counsel Memoranda

In 1973, the Department of Justice OLC drafted a memorandum arguing that a sitting President could not be indicted.[30]  The memo explained that the attention necessary to defend a criminal indictment would “interfere with the President’s unique duties.”[31]  Accordingly, the memo concluded that an indictment would frustrate a President’s ability to carry out his duties to such an extent that any proceeding should be deferred until after his term.[32]  In 2000, the OLC reaffirmed these conclusions with another memorandum.[33]

Federal prosecutors are expected to follow official Department of Justice policies and regulations.[34] While it has been an official practice of the Department of Justice to refrain from indicting a President, it is unclear whether doing so is an official policy.[35]  The official nature of these memoranda and their frequency suggest that federal prosecutors would be bound by them.

Indictment as a Disability

            History would lend itself to the notion that the 25th Amendment’s third and fourth clause are reserved for medical incapacities.  Even in letters to Congress before drafting the Amendment, legal scholars argued that a disability could only be understood as the founders understood intellectual illness.[36]  Yet, others still argued that the inability to discharge duties should extend to practical matters.[37]

For constitutional purposes, a mental or physical disability is worth considering because of the impairments it places on one to carry out their work.  In theory, we are not concerned with disabilities that do not impair an officer’s ability to produce a quality work product.  Accordingly, administration officials are solely concerned with circumstances that afflict one’s ability to practically function.  If a condition, either mental, physical, or legal, prevents a president from discharging his duties in any way, then that should be considered a disability sufficient for invoking the 25th Amendment.

History shows us that a President can still be effective while attending to legal proceedings.  In December of 1998, the House of Representatives introduced articles of impeachment against President Bill Clinton.  Still, he enjoyed a 68% approval rating and a 72% rating among Americans that felt he could be effective and lead successful foreign policy endeavors.[38]  Moreover, President Clinton deployed troops, after rallying support, to Serbia in March of 1999 (a month after his impeachment proceeding).[39]  This achievement complemented domestic accomplishments, too.  For instance, President Clinton, a member of the Democratic Party, was able to negotiate with the Republican Party (“GOP”) and agreed on paying dues to the United Nations (“UN”), doubling afterschool programs, and the 100,000 teacher initiative.[40]  In President Clinton’s case, attending to legal proceedings did not seem to debilitate him from executing his duties.  Nevertheless, the consequences of legal proceedings did not appear to impair the credibility or function of the government.

Insulating a President from indictment allows for a likely criminal actor to exercise powers in our nation’s highest office.  This circumstance was occasioned during Nixon’s presidency.[41]  Because of Nixon’s position, he secured funds to bankroll cover-ups of the Watergate scandal.[42]  These operations spanned across two terms.[43]  An indictment could have intercepted and stopped these operations sooner than an impeachment.

One rebuttal to this argument is that Congress is charged with removing a President when he does something dastardly.  It seems important to note that impeachment is a political process.  As such, its instigation is subject to the whims of politicians.  Its success also requires a two-thirds majority vote by Congress.  Accordingly, it is possible that a President can commit a federal offense without being removed from office.  It does not necessarily follow that because a President does something “dastardly,” he will be removed from office.

Conclusion

The Constitution provides for replacing a President while in office.  As a nation, we have seen this procedure carried out on several occasions.  Further, the President can execute both foreign and domestic initiatives with success while attending to legal matters and wrestling with the consequences of them.

Most importantly, perhaps, is that Congress could effectively insulate a President’s removal from office following an impeachment.  This serves to keep a person, likely guilty of crimes, with the gambit of executive power at his disposal.  Our experiences with President Nixon and his proclivity for cover-ups indicate why this is problematic.

In sum, not only does the Constitution provide for replacing a disabled sitting President, but our laws and history allow holding them accountable with an indictment.  It is not only permissible, but imperative, that we hold our chief executive accountable for his criminal behavior.  Thus, prosecutors should bring indictments and let the Supreme Court resolve the constitutionality of bring such allegations.

[1]  William K. Rashbaum et al., Michael Cohen Says He Arranged Payments to Women at Trump’s Direction, N.Y. Times (Aug. 21, 2018), https://www.nytimes.com/2018/08/21/nyregion/michael-cohen-plea-deal-trump.html.

[2] Chris Strohm & Shannon Pettypiece, Mueller Weighs Putting Off Trump Obstruction Decision, Bloomberg (Mar. 12, 2018, 4:00 AM), https://www.bloomberg.com/news/articles/2018-03-12/mueller-is-said-to-weigh-putting-off-trump-obstruction-decision.

[3] Aaron Blake, Michael Cohen’s Plea Deal is Very Bad for Trump, Wash. Post (Aug. 21, 2018) https://www.washingtonpost.com/politics/2018/08/21/why-cohen-plea-deal-is-bad-trump-it-puts-him-very-close-an-actual-crime/?noredirect=on&utm_term=.d44a53a1ec1c (discussing Mr. Cohen pleading guilty to eight counts of financial crimes).

[4] Robert G. Dixon, Jr., Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office, Dep’t Just., Sept. 24, 1973, https://fas.org/irp/agency/doj/olc/092473.pdf.

[5] Randolph D. Moss, A Sitting President’s Amenability to Indictment and Criminal Prosecution, U.S. Dep’t Just., Oct. 16, 2000, https://www.justice.gov/file/19351/download.

[6] Id.

[7] Id.

[8] Id.

[9] Andrew Crespo, Is Mueller Bound by OLC’s Memos on Presidential Immunity?, Lawfare (July 25, 2017, 9:00 AM), https://www.lawfareblog.com/mueller-bound-olcs-memos-Presidential-immunity.

[10] Michael S. Schmidt et al., Mueller Won’t Indict Trump if He Finds Wrongdoing, Giuliani Says, N.Y. Times (May 16, 2018), https://www.nytimes.com/2018/05/16/us/politics/mueller-trump-indictment.html.

[11] Crespo, supra note 9.

[12] U.S. Const. art. II, § 1, cl. 6.

[13] Id.

[14] U.S. Const. amend. XXV, § 3 (“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President”).

[15] Eric M. Freedman, The Law As King and the King As Law: Is A President Immune from Criminal Prosecution Before Impeachment?, 20 Hastings Const. L.Q. 7, 16 (1992).

[16] U.S. Const. art. II, § 1, cl. 6.

[17]  See generally Max Farrand, The Records of the Federal Convention (1911), http://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-3vols.

[18] William Rawle, A View of the Constitution of the United States of America 125-26 (1829), http://press-pubs.uchicago.edu/founders/documents/amendIIs9.html.

[19] Speech of Patrick Henry, Am. Hist., June 5, 1788, http://www.let.rug.nl/usa/documents/1786-1800/the-anti-federalist-papers/speech-of-patrick-henry-(june-5-1788).php.

[20] Freedman, supra note 15, at 13-15.

[21] U.S. Const. amend. XXV, § 3.

[22] Problem of Presidential Inability: Hearings Before the Spec. Subcomm. to Study Presidential Inability of the Comm. on the Judiciary H.R., 84th Cong. 16 (1956) [hereinafter “Hearings”].

[23] Id. at 18.

[24] Ronald Reagan, Letter to the President Pro Tempore of the Senate and the Speaker of the House on the President’s Resumption of His Powers and Duties Following Surgery, Am. Presidency Project, July 13, 1985, http://www.presidency.ucsb.edu/ws/?pid=38884.

[25] Id.

[26] George W. Bush, Letter to Congressional Leaders on Temporary Transfer of the Powers and Duties of President of the United States, Am. Presidency Project, June 29, 2002, http://www.presidency.ucsb.edu/ws/?pid=63676.

[27] Id.

[28] Bush, supra note 26.

[29] George W. Bush, Letter to Congressional Leaders on Resuming the Powers and Duties of the President of the United States, Am. Presidency Project, July 21, 2007, http://www.presidency.ucsb.edu/ws/?pid=75573.  See also Bush, supra note 26.

[30] Dixon, Jr., supra note 4.

[31] Dixon, Jr., supra note 4.

[32] Moss, supra note 5.

[33] Dixon, Jr., supra note 4.

[34] 9-27.000 – Principles of Federal Prosecution, U.S. Dep’t Just., https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution (last updated Sept. 19, 2018).

[35] Schmidt, supra note 10.

[36] Hearings, supra note 22.

[37] Hearings, supra note 22.

[38] Presidential Approval Ratings – Bill Clinton, Gallup: News, https://news.gallup.com/poll/116584/Presidential-approval-ratings-bill-clinton.aspx (last visited Oct. 2, 2018).

[39] Samuel J. Sarver, Effects of the Impeachment on Bill Clinton’s Staff, Cabinet, Agenda, and Legacy, Ill. St. U., https://pol.illinoisstate.edu/downloads/conferences/2006/Sarver13.pdf (last visited Oct. 2, 2018).

[40] Id.

[41] See generally John W. Dean, Blind Ambition (1976); Carl Bernstein & Bob Woodward, All The President’s Men (1974); Bob Woodward & Carl Bernstein, The Final Days (1976).

[42] Id.

[43] Id.

Hidden Dangers in Cosmetics and the Need for Stronger Regulations

TLR BLOG

By Katherine Lalor, J.D. Class of 2016 Touro Law Review Senior Staff Member

Images of beauty slam into your vision at every turn. You cannot escape the bombardments of visual stimulation indicating what is beautiful. The little beauty in a bottle may or may not contain harmful chemicals such as formaldehyde or mercury, and the F.D.A. is powerless to ensure that what women and men slather on their face and body is safe. In a recent NY Times article, Their Hair Fell Out. Should the F.D.A. Have the Power to Act? the need to obtain stronger regulations in the cosmetic industry was highlighted.[1] The article also revealed how a new bill will provide the FDA with the necessary authority to regulate the cosmetic industry.[2]

The NY Times article exposed how dangerous cosmetics can be when it reported that Wen by Chaz Dean settled a class action suit for $26.25 million dollars.[3] The lawsuit alleged that the product caused consumers to experience itching, rashes, and even hair loss in large amounts.[4] For instance, a nine-year-old child lost all her hair within days of using Wen’s Sweet Almond Mint Cleansing Conditioner.[5] Although the adverse effect is not universal and there are other consumers who love the product, many other consumers are unaware of the potential dangers.[6]

In addition, there are other cosmetic products on the market that include cancer-causing chemicals.[7] The Center for Environmental Health (“CHE”) based in California discovered that 98 shampoos, soaps, and other personal care products made by Colgate-Palmolive, Colomer, and Paul Mitchell contained cancer causing chemical cocamide diethanolamine (cocamide DEA).[8] California listed the chemical “as a chemical known to cause cancer based on the assessment by the International Agency for Research on Cancer, which evaluated skin exposure tests on animals.”[9] Although the CHE has been able to persuade some companies in writing to change their products by excluding cocamide DEA, all of the companies must be required to exclude this hazardous chemical.[10] The companies that have agreed to the change are Palmolive’s Caprice Shampoo, Lush’s Fair Trade Honey Shampoo, and Michel Design Works’ Lemon Basil Shea Butter Hand Soap.[11]

Furthermore, a harmful chemical is included in almost every cosmetic product as illustrated in safecosmetics.org, Chemicals of Concern.[12] This website lists all of the harmful chemicals included in everyday products such as eyeliners, which consists of carbon black that has been linked to cancer; lip balms, which consists of cancer causing chemical benzophenone; and shampoos for adults and babies that contain formaldehyde that is also found to cause cancer.[13]

The Federal, Food, Drug, and Cosmetic Act was passed in 1938 after a “legally marketed toxic elixir killed 170 people, including many children.”[14] However, this Act mostly regulated the pharmaceutical industry and left the cosmetic industry unregulated.[15] Currently, the F.D.A. has the power to “take action against [a] company only if it could prove a product had been mislabeled or contaminated.”[16] However, the F.D.A. cannot compel companies to release “safety tests and other manufacturing data.”[17]   The F.D.A. relies on consumers to report issues directly to them.[18] This can cause unreliable data since most consumers complain directly to the companies who do not report to the F.D.A.[19] Moreover, once a company is found to have mislabeled or contaminated its product, the F.D.A. can only attempt to persuade the company to do a voluntarily recall.[20]

The legislature is proposing the Feinstein-Collins Bill that would strengthen the 1938 law.[21] Large cosmetic companies such as Estee Lauder, Johnson & Johnson, Procter & Gamble, as well as other diverse groups, are backing the bill.[22] The objective is to re-establish consumer confidence by obtaining “consumer regulations that best serve the public health and give consumers confidence in the products and ingredients they choose for their families.”[23] The bill would require that companies report “serious adverse” reactions directly to the F.D.A. with an annual report of all “adverse events.”[24] The F.D.A. would have the power to “order companies to recall products found to be dangerous.”[25] The bill would also “collect about $20 million in fees annually from beauty care companies to help cover the cost of confirming the safety of about five ingredients each year that are suspected of causing problems.”[26]

However, the Independent Cosmetic Manufacturers and Distributors, which include the distributor of Wen and Mary Kay, are part of the “beauty trade associations that has been aggressively lobbying Congress to block the passage” of the bill. The group claims that “it falls short in providing one clear national and uniform safety standard.”[27] An alternative bill has been proposed that would still require companies to notify the F.D.A. of “serious cosmetic adverse events,” but “it would not grant the agency the power to order a recall or collect industry fees to pay for new programs, such as the safety evaluation of cosmetics ingredients.” [28] Finally, it would ensure that the supporters of this alternative bill would “broadly and retroactively pre-empt any tougher state laws.”[29]

The need to regulate the cosmetic industry is long overdue, and the Feinstein-Collins Bill will ensure that products consumer’s use are safe. Currently, the cosmetic industry is not mandated to report adverse reactions even if someone dies using their products.[30] An independent party must oversee the ingredients used in cosmetics not only for the safety of consumers but also to relieve the consumer’s fear and confusion in using cosmetics.[31] The Feinstein-Collins Bill will give the proper authority to the F.D.A.[32] The bill will raise revenue that will be used to test products and can require companies to pull harmful cosmetics off the shelves.[33] The alternative proposal would not fully safeguard consumers because it lacks the resources to raise revenue used to test the products and it would limit the power the F.D.A would have in recalling destructive cosmetics.[34] Losing your hair can be traumatic especially if you are a nine-year-old girl. Having the power to prevent the effect of hair loss or a life-threatening illness such as cancer is imperative and can only be accomplished with strong regulations.

[1] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] L.V. Anderson, The FDA Can’t Recall Dangerous Cosmetics, and the Industry Wants to Keep It That Way (Aug. 16, 2016), http://www.slate.com/blogs/xx_factor/2016/08/16/the_fda_can_t_recall_dangerous_cosmetics_but_a_bill_could_change_that.html.

[7] Lawsuit Launched s Testing Finds Caner-Causing Chemical in Nearly 100 Hari Care and Personal Care Products, (Aug. 27, 2013), http://www.ceh.org/news-events/press-releases/content/lawsuit-launched-testing-finds-cancer-causing-chemical-in-100-shampoos-haircare-products/.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Chemicals of Concern, http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/,(last visited Dec.1, 2016).

[13] Id.

[14] U.S. Food & Drug Administration, www.fda.gov (last visited Nov. 12, 2016).

[15] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[31] L.V. Anderson, The FDA Can’t Recall Dangerous Cosmetics, and the Industry Wants to Keep It That Way (Aug. 16, 2016), http://www.slate.com/blogs/xx_factor/2016/08/16/the_fda_can_t_recall_dangerous_cosmetics_but_a_bill_could_change_that.html.

[32] Eric Lipton & Rachel Abrams, Their Hair Fell Out. Should the F.D.A Have the Power to Act? (Aug. 16, 2016), http://nyti.ms/2bc4nCJ.

[33] Id.

[34] Id.