They Won't Stop at Backpage

The "Stop Enabling Sex Traffickers Act" would not stop sexual exploitation. But it could blow up the legal framework that supports the internet as we know it.

Some bipartisan busybodies in the Senate are pushing a bill they claim will take aim at sex trafficking—but as usual, their lofty claims don't square with reality. The "Stop Enabling Sex Traffickers Act" would do nothing to actually stop sexual exploitation, but it will lay waste to the legal framework that supports the internet as we know it.

The bill (S. 1693) would amend the Communications Decency Act "to clarify that section 230 of that Act does not prohibit the enforcement against providers and users of interactive computer services" of any federal or state laws—criminal or civil— "relating to sex trafficking."

So far, the measure has attracted more than two dozen co-sponsors, including Republican Sens. Ted Cruz (Texas), John McCain (Arizona), and Marco Rubio (Florida) and Democratic Sens. Richard Blumenthal (Connecticut) and Claire McCaskill (Missouri). But it has also earned ample opposition from tech companies, constitutional wonks, web publishing platforms, and sex workers, as I explain in a recent piece at The Daily Beast:

Why? According to the '80s anti-pornography crusaders at Morality In Media—recently rechristened the National Center on Sexual Exploitation—it's because Google "supports sex traffickers," as does anyone else opposing the legislation.

Of course no one—not me, nor Google (which contributes to and partakes in a slew of anti-trafficking initiatives), nor The Internet Association (a trade group that includes members such as Twitter, Microsoft, AirBNB, Amazon, Yelp, Reddit, and Snapchat), nor the myriad think tanks, lawyers, and tech writers opposed to the bill—is arguing in favor of forced or underage prostitution. No one is arguing that companies have a right to knowingly profit off of sexual exploitation, nor that free speech includes a right to advertise sex trafficking.

But we already have a host of remedies (criminal and civil) for punishing such activities. Federal law already bans sex trafficking, conspiracies to commit sex trafficking, and knowingly facilitating it in any way.

"The problem today is not a lack of legal remedies but under-enforcement (or slow enforcement) by the U.S. Justice Department," suggested a group of tech scholars this week in a letter to senators. And under-enforcement is a problem the new bill would do nothing to address. Instead, it would actually "discourage online platform operators from policing their sites," by making doing so increase the likelihood of liability, "and generally undermine America's uniquely innovative online ecosystem."

The new measure covers much of the same ground as legislation that attracted 98 co-sponsors earlier this year. (Law professor Eric Goldman: "it's pretty clear Congress is on the cusp of gutting Section 230.") It's being sold as a way to hold the classified ad site Backpage "accountable" for its supposed role in facilitating sex trafficking.

But as I explain at the Beast, "the underlying reason why no one's been able to pin criminal charges on Backpage isn't a 'loophole' in federal law that lets Backpage knowingly profit from human trafficking but the fact that the evidence doesn't support claims that it does so." And while politicians and activists say that a sex-trafficking exception to Section 230 is a narrowly crafted solution, this falls apart in the face of the way U.S. sex trafficking laws are enforced in practice.

Authorities already go after all sorts of consensual adult activity…under the guise of stopping sex trafficking. And Backpage is far from the only site where this sort of activity is advertised and negotiated. As it stands, cops are already chasing down prostitution and sex trafficking cases that originate on Facebook, Snapchat, random dating apps, and more.

As web-policy folks note, the new law would mean "online platforms could be accused of participating in sex trafficking that occurs through ordinary, non-advertising use of their sites," such as when two people arrange to meet through Facebook messenger.

With broader power to target web platforms, the financial incentives for abuse would be huge. Most of the people prosecuted for trafficking-related crimes are small-time pimps or sex workers themselves, working in a small-scale and relatively low-end manner. Their pockets are not deep. But Backpage? Facebook? Google? There's money there, for cops with civil asset forfeiture dreams and civil-lawsuit payouts….

It seems folks like Portman and Cruz won't rest until sex workers—and sex trafficking victims—are forced back out onto the streets and the social web as we know it is destroyed. But the only thing this grandstanding gesture might help is their political careers. Victims of sexual exploitation won't be one iota safer when lawmakers shut down Backpage. And they won't stop at Backpage.

Read the whole thing here.