A coalition of civil liberties, publishing, and online commerce groups are asking Congress to oppose a piece of anti-speech, anti-sex work legislation known as as the "Stop Advertising Victims of Exploitation" (SAVE) Act. The bill is allegedly aimed at thwarting human trafficking but in reality would create harsh new criminal liabilities for websites and publishers, allow federal agents to censor online ads, make it harder for adult sex workers of all sorts to safely connect with clients, drive traffickers further underground, and potentially expose anyone advertising online to new privacy infringements.
Introduced by Sens. Dianne Feinstein (D-Calif.) and Mark Steven Kirk (R-Ill.) in June, the bill could prove tempting to the incoming Senate. With its ostensible focus on helping child "victims of exploitation"—particularly child sex trafficking victims—the SAVE Act (S. 2536) is another bit of legislation ripe for displaying bipartisanship.
In a November 12 letter to the U.S. Senate, nine organizations—including the American Civil Liberties Union, the Internet Commerce Coalition, the Electronic Frontier Foundation, the Association of Alternative News Media, and the National Coalition Against Censorship—wrote to convey "strong opposition" to the SAVE Act. Though they "share the vital goal of ending human trafficking", the groups humbly suggest the government use tools already at its disposable—such as "the strong federal law that already criminalizes such activity online"—to combat trafficking, rather than placing broad, unconstitutional restrictions on everyone's free speech and privacy rights.
The SAVE Act would do several things: 1) create extensive record-keeping requirements for any website, online services, and print publication that hosts adult advertisements, 2) require anyone posting an adult ad to submit photo identification, 3) enable the Department of Justice (DOJ) to ban certain "euphemisms" or "code words" from online advertising entirely, and 4) make websites that host user-generated ads criminally liable should any of those ads wind up promoting the sexual exploitation or abuse of a minor. Under the law, the operator of a website such as Craigslist that hosts thousands of new user-uploaded ads daily could could face up to 10 years prison if any one of these is eventually linked to child sex trafficking.
"While existing aiding and abetting crimes should certainly reach someone who knowingly hosts a child trafficking ad with the intent to further the trafficking venture," the groups note,
S.2536 would mean that websites and services hosting user-generated content could be held criminally liable even if they do not have actual knowledge that an ad for illegal activity appears on their sites.
Consequently, virtually any user-generated content host—like Facebook, Twitter, eBay, Amazon or various online dating sites—will have every incentive to prohibit content that falls under the bill's broad definition of "adult advertisements," which includes communications that are wholly or only partially devoted to proposing lawful commercial exchange for lawful services–in other words, speech that is unquestionably protected by the First Amendment. At best, user-generated content sites will default to taking down content that is flagged as an "adult advertisement" as soon as a complaint is lodged, regardless of whether the content appears to be related to child trafficking or state child exploitation crimes, or even fits the bill's definition of "adult advertisement" at all.
(…) And given the vague definitions and broad scope of the new crime, S.2536 would create a situation ripe for selective enforcement against sites and services that host disfavored – but wholly lawful – speech.
In addition, any website, online service, or print publication that hosts any content falling under the bill's definition as an "adult advertisement" would be required to obtain photo identification from anyone posting the content. This requirement manages to threaten ample people's privacy while creating additional regulatory burden for websites and publishers. Non-compliance could result in up to five years in jail—and noncompliance doesn't even have to be intentional:
S. 2536 does not require that the website operator, online service, or publication know or intend to host "adult advertising" content before imposing liability. If one of a site's millions (or billions) of users were to upload a post or an image that fell under the bill's broad definition and that site operator had not already collected a copy of the user's driver's license, the site operator would face a mandatory minimum penalty of $250,000 and up to 5 years in prison. The effects would be felt the hardest by smaller businesses, both online and print, for whom one single violation triggering the mandatory minimum penalty could very well mean bankruptcy, and would serve as a disincentive to new start-ups
Rather than risk inadvertantly hosting an illegal ad without having obtained the proper identification, many sites would simply start requiring a government-issued photo ID in order to post an ad. Don't have one or don't want to share that info? You can't sell your washer or advertise your pet-sitting services. Submit your ID? Add your personal info into another insecure database. And the terribleness of this bill doesn't even end there…
Further, because the recordkeeping requirement would also apply to those who "place" advertisements as well as those who host them, individuals who upload lawful content that falls under the bill's broad definition of "adult advertisement" would be likely to violate the law en masse simply because they are not aware of it. These individuals could become easy targets for prosecution for failure to comply with the recordkeeping requirement, diverting attention away from pursuing traffickers and those engaged in the actual victimization of children.
And perhaps most egregiously of all, the SAVE Act would empower the DOJ to ban the use of certain words in all online advertising. If the agency determined that something was a potential euphemism or "code word" for trafficking, web operators, publishers, and digital ad networks would be forced to censor ads containing these words or phrases. "Such a requirement is unworkable in practice," states the ACLU et al.'s letter, "would give the Department of Justice an enormous amount of discretion to censor online speech, and would not withstand scrutiny under the First Amendment."