Criminal Justice

Senators Feinstein, Portman Want to Expand Wiretapping Authority to Combat Sex Trafficking

Another anti-sex trafficking bill from Sen. Dianne Feinstein that uses inflated fears about the issue to push unconstitutional expansions of federal law enforcement power

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Human Trafficking and Sexual Violence Awareness/Facebook

Sen. Dianne Feinstein (D-Calif.) is once again attempting to swell federal power and erode civil liberties by preying on fears about sexual exploitation. Today, she and Sen. Rob Portman (R-Ohio) introduced the Combat Human Trafficking Act, a bill that would expand federal and state wiretapping authority, mandate that the Department of Justice (DOJ) spend more time investigating and prosecuting buyers of sex acts from trafficking victims, and increase criminal penalties for buyers by legally defining them as human traffickers.  

What could be so bad about going after those who buy sex from trafficked individuals, especially sex-trafficked minors? For one, the bill doesn't require a buyer to know that an individual has been trafficked or is under 18 years of age to be criminally liable. But, more broadly, the bill seems largely aimed at additional encroachments on American privacy and expansion of federal law enforcement power. 

Sen. Portman said the legislation "sends a clear message to those who victimize children that we will prosecute you to the full extent of the law." But we already have plenty of laws available to prosecute those who sexually victimize children. Purchasing sex from a minor should absolutely be illegal—and it is! But what do we gain by now defining all individuals who do so as sex traffickers?

We'll get more people in prison, I guess—if anyone who purchases sex from a 16-year-old is now a human trafficker, not just a statutory rapist, they'll be subject to a 10 year mandatory minimum sentence. Somehow this seems more punitive than public safety-oriented. (Also, expensive.) 

We'll also get the DOJ poking around more in the affairs of anyone involved in buying or selling sexual services. Under the bill, "the Attorney General shall ensure that Federal law enforcement officers are engaged in activities, programs, or operations involving the detection, investigation, and prosecution of individuals" who "obtain, patronize, or solicit a commercial sex act involving a person" who has been trafficked.

Under the best of circumstances, this is going to lead to increased harassment of (willing) sex workers and enhanced monitoring of any space where they congregate. But by playing a little loose with the definition of trafficking (as anti-prostitution crusaders are wont to do), the bill also provides a potential direct mandate for DOJ to target sex workers and their clients. 

But isn't arresting child sex traffickers and rescuing trafficking victims worth it? It's a worthy endeavor, certainly. It's also one that DOJ is already empowered to do. This bill doesn't make it more possible for DOJ to fight traffickers, it uses fighting trafficking as a guise for giving federal and state law enforcement more power. 

Here's a more detailed look at what the Combat Human Trafficking Act would do, from a Feinstein press release:

  • Clarify that a buyer of a commercial sex act from a trafficking victim can be prosecuted under the commercial sex trafficking statute (18 U.S.C. § 1591)
  • Make a seller or buyer of a sex act strictly liable, with respect to the victim's age, if the victim is under the age of 18, thereby sparing child victims from having to testify and be re-traumatized
  • Establish a minimum period of five years of supervised release for a person who conspires to violate the commercial sex trafficking statute (§ 1591), thereby making conspirators subject to the same term of supervised release as those convicted of attempting to violate the statute or of violating the statute.
  • Require the Bureau of Justice Statistics to prepare an annual report on the number of arrests, prosecutions, convictions and lengths of sentences regarding sex trafficking offenses prosecuted in state courts.
  • Direct the Department of Justice to ensure that each anti-human trafficking training program it offers includes training on effective methods for investigating and prosecuting the buyers of sex acts, and to ensure that federal law enforcement officers investigate and prosecute such individuals.
  • Expand federal and state wiretapping authority to cover all human trafficking offenses, specifically peonage, involuntary servitude, forced labor, child sexual exploitation, child pornography production, slavery and involuntary servitude.

Feinstein's press release justifies these moves thusly: 

Human trafficking is a $32 billion industry worldwide, making it the second largest criminal industry behind the drug trade. The U.S. Department of Justice estimates that up to 83 percent of sex trafficking victims are American citizens, and the average victim is first trafficked between ages 12 and 14. According to the California Department of Justice, California is one of the top four destination states for trafficking victims.

Yes, they're actually claiming that American citizens make up all but 13 percent of global sex trafficking victims. It's a bold move even within the typically-dubious realm of sex-trafficking statistics (the idea that the average victim is first-trafficked at 12-years-old is also suspect). None of these stats are sourced. 

Unfortunately, this is the latest in a string of dreadful bipartisan efforts from Feinstein, who earlier this year introduced the "Stop Advertising Victims of Exploitation" (SAVE) Act with Republican Sen. Mark Steven Kirk. (Ill.). That bill also exploits sexually-abused children to push unconstitutional expansion of federal law enforcement power. A wide range of trade and activist organizations oppose the SAVE Act, which they describe as creating "new and draconian federal criminal liability for websites and other online services that host content created by third parties," while raising "serious free speech and privacy concerns", driving "truly bad actors—the traffickers—underground and overseas", and "subjecting wholly innocent individuals to potential criminal liability for unknowingly running afoul of this sweeping law."