March 16, 2018

H.R. 1865, Allow States and Victims to Fight Online Sex Trafficking Act

NOTEWORTHY

Background: H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act, passed the House by a vote of 388–25 on February 27, 2018. The legislation incorporates several provisions from S. 1693, the Stop Enabling Sex Traffickers Act, or SESTA, which was introduced by Senator Rob Portman on August 1, 2017. S. 1693 was reported favorably out of the Commerce, Science, and Transportation Committee on November 8, 2017, by voice vote.

Floor Situation: On March 14, 2018, Majority Leader Mitch McConnell filed for cloture on the motion to proceed to H.R. 1865. The Senate is expected to consider the legislation the week of March 19, 2018.

Executive Summary: The legislation clarifies that Section 230 of the Communications Decency Act does not provide immunity for violations of sex- and human-trafficking laws. It creates a new federal crime of promoting or facilitating prostitution or sex trafficking over the internet and specifically authorizes state attorneys general to bring civil actions against perpetrators of sex trafficking.

OVERVIEW OF THE ISSUE

Section 230 of the Communications Decency Act provides that no “provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Although the precise parameters of the activities and providers protected by Section 230 are highly litigated, most courts have interpreted the provision as effectively immunizing websites from liability for third-party and user-created content. Some legal scholars have asserted that companies that rely on third-party content, including Google, Facebook, and Twitter, would not exist without Section 230’s liability protections. Others, including several state attorneys general, argue that Section 230 in its current form allows harassing, illegal, and defamatory internet content to proliferate and should be amended.

Senator Portman, who chairs the Committee on Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations, introduced the Stop Enabling Sex Traffickers Act in August 2017. The bill was prompted by the subcommittee’s investigation of Backpage.com, an online classified-advertisement service, for facilitating sex trafficking. The investigation found that Backpage was aware that its site facilitated sex trafficking and that it actually created content by editing advertisements to conceal illegal activity conducted over the site. 

Section 230 makes clear that the grant of immunity “shall [not] be construed to impair the enforcement of” federal obscenity laws, child-exploitation laws, “or any other Federal criminal statute.” A number of courts have held that the civil and criminal prosecution of Backpage and its employees for these activities is precluded by Section 230. For instance, a First Circuit panel, holding that Section 230 barred a victim’s sex-trafficking suit against Backpage, credited the premise “that Backpage has tailored its website to make sex trafficking easier.” But Congress, in enacting Section 230, “chose to grant broad protections to internet publishers.” So showing “that a website operates through a meretricious business model is not enough to strip away those protections.” The court noted that the remedy for the “evils” identified in the litigation was “through legislation, not through litigation.”

Additionally, while states may enforce their laws “consistent with Section 230,” no “cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent” with the statute. Courts have interpreted this grant of immunity as applying broadly to state prosecution. In its report, the subcommittee noted that a California state court dismissed felony pimping and conspiracy charges against the Backpage CEO and founders based on Section 230 and that “Backpage has also successfully invoked Section 230 in federal-preemption challenges to state laws in Washington, Tennessee, and New Jersey criminalizing the advertisement of minors for sex.” A California state court decision issued after the release of the subcommittee’s report again threw out felony pimping charges against Backpage under Section 230.

H.R. 1865, as passed by the House, would amend Section 230 to clarify that the section provides no immunity for civil actions for sex-trafficking and state criminal prosecutions for sex-trafficking criminal prosecutions and aggravated sexual abuse. The legislation would also create new federal crimes of promoting or facilitating prostitution or sex-trafficking over the internet. It amends the current sex-trafficking law to make clear that it prohibits knowingly assisting, supporting, or facilitating a sex-trafficking violation. It additionally authorizes state attorneys general to bring civil actions against perpetrators of sex trafficking.

Provisions included in H.R. 1865 have received significant support from law-enforcement organizations, anti-trafficking advocates, and faith-based groups. The White House and many members of the technology community have also conveyed their support for the legislation. Other members of the technology community, however, have raised concerns about revising Section 230.

Additionally, the Department of Justice has expressed doubts on the constitutionality of the provision applying Section 230 revisions retroactively. A Congressional Research Service memorandum disagrees with this conclusion because the amendments to Section 230 “would create no new federal crime or enhance punishment for any pre-existing federal crime.”

NOTABLE BILL PROVISIONS

Section 3 – Promotion or facilitation of prostitution and reckless disregard of sex trafficking

Establishes a new federal crime for anyone who “owns, manages, or operates an interactive computer service ... with the intent to promote or facilitate the prostitution of another person.” It also makes it an aggravated violation to engage in the new crime and either promote or facilitate the prostitution of five or more people or act in “reckless disregard” that the conduct contributed to “sex trafficking” of children or by force, fraud, or coercion.

The new provision creates a private right of action for victims of aggravated violations to seek damages for their injuries. It provides an affirmative defense to charges based on facilitating and promoting prostitution – not involving sex trafficking – if those activities were legal in the jurisdiction where the promotion or facilitation was targeted.

Section 4 – Ensuring ability to enforce federal state criminal and civil law relating to sex trafficking

Amends Section 230 of the Communications Decency Act to clarify that it should not be construed to impair or limit civil actions brought for violations of federal human-trafficking and sex-trafficking laws, state prosecutions for conduct that would be a violation of federal sex-trafficking law, and state prosecutions for conduct that would be a violation of the prohibitions created by Section 3 of this legislation. It provides that the amendments “apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after [the] date of enactment.”

Section 230 currently provides that it should not “be construed to impair the enforcement” of any federal criminal statute or to prevent any state from enforcing any state law “that is consistent” with the section.

Section 5 – Ensuring federal liability for publishing information designed to facilitate sex trafficking or otherwise facilitating sex trafficking

Clarifies that participating in a sex-trafficking venture includes “knowingly assisting, supporting, or facilitating” the sex trafficking of children or sex trafficking by force, fraud, or coercion.

The federal sex-trafficking law prohibits anyone from recruiting, harboring, transporting, providing, advertising, or patronizing a person while knowing or being in reckless disregard of either of two circumstances: either the fact that the person is under 18 years old and will engage in a commercial sex act; or that force, fraud, or coercion will be used to cause the person to engage in a commercial sex act. It extends this prohibition to benefitting from “participation in a venture” that has engaged in such sex trafficking.

Section 6 – Actions by state attorneys general

Authorizes a state attorney general to sue violators of the federal sex-trafficking law if he or she “has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected” by the violators.

Current law allows victims of human trafficking and sex trafficking to sue the perpetrators in their cases.

Section 7 – Savings clause

Provides that the legislation should not be construed to limit or preempt any federal or state civil action or criminal prosecution that was not previously limited or preempted by Section 230.

Section 8 – GAO study

Directs the GAO to report to Congress in three years on civil actions authorized by Section 3 of the legislation.

ADMINISTRATION POSITION

The administration has expressed support for the passage of the bill but has not yet issued a statement of administration policy.

COST

CBO has estimated that H.R. 1865 would have insignificant effects on direct spending and revenues.