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).