A new Senate bill with rare bipartisan support seeks to curb online sex trafficking, but some critics of the legislation say the bill is so broadly written that it could open up legal floodgates that could expose social media networks Facebook and Twitter and popular reader-edited sites like reddit to prosecution for content published by users.
Sen. Rob Portman of Ohio introduced the bill [PDF] — the Stop Enabling Sex Traffickers Act of 2017 — earlier this week. The legislation is the result of a two-year Permanent Subcommittee on Investigations inquiry into online sex trafficking, and in particular into sites like Backpage.com that have profited from ads for escorts and similar services.
What has some — including the internet’s biggest content companies — concerned isn’t the goal of the legislation, but the way it goes about trying to combat trafficking.
Sec. 230 of the Communications Decency Act is an incredibly important law to any website that allows the public to upload content, whether it’s comments on stories, social media updates, or videos on YouTube. What Sec. 230 does is provide a shield to those websites against liability for the stupid things users publish.
So if someone goes on reddit and posts an entire copyrighted script for a TV show, the producers of that show can’t just sue reddit for copyright violation. More appropriate to the issue of the Portman bill, if an escort uses Instagram to market their services, you’d currently have a difficult time holding Instagram accountable because it didn’t publish that content.
What the Portman bill does is amend Sec. 230 to clarify that this “safe harbor” provision can’t be used to inhibit the criminal prosecution or civil enforcement of state and federal trafficking laws.
Additionally, the proposed legislation seeks to expand the definition of who could be held responsible for trafficking under the federal child trafficking statute.
If passed, it’s possible that state attorneys general or federal prosecutors could then bring charges against websites and social media networks that host trafficking-related content, even if those sites did not publish it and even if they have policies prohibiting such content. Also, victims of sex trafficking could be allowed to bring civil cases against these sites.
Which explains why the Internet Association — a trade group whose members include Amazon, Facebook, Google, reddit, Twitter, and Yelp — has expressed concern about what this bill could mean for future of the internet.
While agreeing that “Sex trafficking is abhorrent and illegal,” the IA calls Portman’s bill “overly broad” and “counterproductive in the fight to combat human trafficking.”
“While not the intention of the bill, it would create a new wave of frivolous and unpredictable actions against legitimate companies rather than addressing underlying criminal behavior,” explains the IA, adding that the bill “jeopardizes bedrock principles of a free and open internet, with serious economic and speech implications well beyond its intended scope.”
Sen. Ron Wyden of Oregon echoed many of these concerns, saying in a statement on Tuesday that the bill “takes a wrecking ball” to the solid foundation established by Sec. 230.
“This bill is so broad, there would be virtually no way for companies to avoid endless lawsuits, no matter how actively they police their platform,” says the senator. “It would create a perverse incentive, discouraging companies interested in investing in new tools for identifying illegal activity on their services.”
In a statement sent to Consumerist, the Electronic Frontier described Portman’s proposal as “profoundly misguided response to a horrifying and real problem.”
“The bill claims to combat sex trafficking, but it would do nothing to support victims or to punish sex traffickers,” argues EFF. “What it would do instead is jeopardize crucial protections for free speech online, costing American jobs and chilling innovation.”
Last year, California charged the CEO of Backpage with conspiracy to commit pimping and pimping a minor under the age of 16 because of escort ads placed on the website.
The court ultimately dismissed the charges, finding that Sec. 230 did indeed shield the company and its executives from liability for content they did not publish.