BY SHEA M. RHODES AND JAMIE PIZZI, OPINION CONTRIBUTOR
"It will break the internet." "It is a violation of free speech." "It will stifle the growth of future online companies." These are just a few of the misconceptions being tossed around as justification for opposing proposed legislation that would eliminate immunity granted to internet service providers profiting from children and adult victims of human trafficking, who are being sold for sex through their websites. Not only do these comments offer a morally bankrupt excuse to abandon support for such legislation, more importantly, they misrepresent what this proposed legislation will actually accomplish.
Sen. Rob Portman's (R-Ohio) Stop Enabling Sex Trafficking Act of 2017 ("SESTA") would create a narrow exception to the Communications Decency Act of 1996 ("CDA")-an exception that is consistent with existing exceptions. SESTA will eliminate the blanket immunity granted to internet service providers who "knowingly advertise", "advertise with reckless disregard", or "knowingly profit" from victims of trafficking through ads posted by third parties on their websites.
The CDA currently contains exceptions that permit prosecution of service providers for alleged violations of laws regarding obscene or harassing telephone calls, access by minors to obscene internet material, general prohibitions against obscene material, the sexual exploitation and abuse of children, as well as for violations of "any other Federal criminal statute." Despite that final catchall provision of the CDA, courts have interpreted the statute to shield inquiry into whether service providers have violated the existing federal trafficking statute.
If SESTA passes, criminal prosecutions and civil litigation stemming from alleged instances of trafficking will be allowed to proceed on the merits at trial, in the same way the CDA already permits violations of certain federal statutes to be pursued. Indeed, SESTA will actually correct the court's misinterpretation of the catchall provision, that on its face, should have been read to include trafficking cases.
The CDA was initially passed to protect children from harmful material on the internet, while also ensuring the free exchange of ideas. Ironically, it has actually provided the strongest immunity to those who cause irreparable harm to children-children being sold for sex through various online channels, such as Backpage.com. SESTA was drafted to eliminate the blanket immunity that has been afforded to companies like Backpage.com, which, the Senate Permanent Subcommittee on Investigations so vividly demonstrated, have actively encouraged the "sanitizing" of advertisements placed on its website to make them less obviously illegal.
Backpage.com prohibits users from employing terms such as "Lolita, rape, young, and daddy," that signal sex buying of underage persons, or the availability of forced sex, as well as terms that are code for prostitution. Yet, instead of banning posts initially submitted with these dubious terms, Backpage.com guides users on how to post "clean" advertisements through error messages that instruct users to remove certain terms before posting, helping users to deliver the illegal message, but cloaked so only savvy sex buyers will understand. This strategy allows service providers to avoid having to delete these advertisements altogether as to not, "cut into the company profits," according to the findings of the Senate Subcommittee. Without SESTA, the CDA will allow this behavior to continue, inflicting real harm with no legal consequences.
The concern that SESTA will inhibit the exercise of free speech is misplaced, as well. The legislation doesn't touch the CDA's "Good Samaritan" immunity available to entities who choose in good faith to screen user-generated content. Some SESTA opponents have suggested that the legislation will curtail the intentions of the "Good Samaritan" immunity by eliminating the incentive to suppress subversive content, altogether. While entities could choose to abandon screening the content posted on their sights, that type of highly irresponsible business practice would likely land them in additional legal trouble and under critical public scrutiny.
With SESTA, as long as entities can show their screening efforts were undertaken in good faith, they are entitled to immunity in the off-chance an advertisement promoting trafficking is unknowingly published on their website. This is in sharp contrast to the actions of Backpage.com (as uncovered the Senate Subcommittee) who endeavor to assist advertisers in masking illegal activities.
Again, this legislation advocates for two narrow exceptions-exceptions that require the strict mens rea standard of "knowing" in order to trigger liability. Thus, SESTA will hardly enable frivolous lawsuits and malicious prosecutions to suddenly ravage internet service providers. This legislation will allow prosecutors to bring charges against entities who violate the existing federal trafficking statute, and will also permit victims of trafficking to bring actions for civil remedies.
No, SESTA will not break the internet, or violate American's free speech, nor will it inhibit the growth of future online companies - unless those future internet companies plan on creating a website for the purpose of knowingly advertising or knowingly profiting from human trafficking as their business model.
This legislation provides limited civil and criminal remedies, based on laws already in existence, against entities that knowingly facilitate or knowingly benefit from violations of trafficking laws. For SESTA to affect them, these entities would already have to be breaking the law. This narrow addition to the CDA is not the apocalyptic, speech-stifling behemoth the rumor mill has made it out to be; instead, SESTA is a small step towards holding companies accountable for the central role they play in profiting from an industry built on human suffering.
Shea M. Rhodes, Esq., is director and co-founder of Villanova Law Institute to Address Commercial Sexual Exploitation and Jamie Pizzi is a research assistant.