What just happened?
Last week, the U.S. Senate passed the Stop Enabling Sex Traffickers Act (SESTA), legislation intended to limit online sex trafficking. A similar bill, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), was passed last month in the House, and President Trump is expected to sign it into law.
What does the new law do?
Content on the internet remained almost wholly unregulated until the passage of the the Telecommunications Act of 1996. This act created the first major changes to the Communications Act of 1934, a law that allows the federal government to regulate wire and radio communication. Included in the Telecommunications Act is the Communications Decency Act of 1996, which attempted to regulate the exposure of indecent and obscene material directed toward children.
The effectiveness of the Decency Act, though, has been undermined because the law has been interpreted to say that “operators of internet services” (such as websites) are not to be legally liable for the words of third parties who use their services.
The new legislation amends that law to specify that the Decency Act does not prevent websites from being subjected to civil action or criminal prosecution under state or federal criminal or civil laws relating to sex trafficking of children or sex trafficking by force, fraud, or coercion (hereafter, “sex trafficking”).
Additionally, the legislation amends the federal criminal code to specify that the violation for benefiting from “participation in a venture” engaged in sex trafficking includes knowingly assisting, supporting, or facilitating the violation. The bill also allows state attorneys general to bring civil actions in U.S. district courts on behalf of the state’s residents if the attorney general believes an interest of the residents has been or is threatened or adversely affected by any person who knowingly participates in sex trafficking.
Why is this law needed?
For the past few decades, websites that post classified ads have been allowed to advertise prostitution with near impunity. This has been especially true of Backpage.com, the world’s largest classified ad company, “Many assume sex trafficking is restricted to the darkest corners of the internet,” Gaye Clarke wrotes in 2016. “The online classified ad company ‘Backpage,’ however, has become the Walmart of sex trafficking and prostitution. For a modest fee, traffickers can post sex ads of women and children they control with force or fraud.”
According to Dawn Hawkins, executive director for the National Center on Sexual Exploitation, Backpage posts 1 million sex ads a day. And the National Center for Missing and Exploited Children (NCMEC) told a Senate subcommittee that 71 percent of all suspected child sex trafficking cases have a link to Backpage.
When challenged in state courts, Backpage has repeatedly prevailed based on the interpretation that the Decency Act protects them from prosecution for the criminal wrongdoing of their customers. The new law will expose companies like Backpage to criminal and civil liability, thus encouraging them to refrain from accepting ads and other content related to sex trafficking.
What are the arguments against the new law?
There are three primary arguments made by critics of the law. The first is that it will hinder a “free and open internet” by “encouraging platforms to implement censorship tools that will almost certainly end up shutting down some protected speech as collateral damage.” As the Electronic Frontier Foundation says, the law will make the Internet a “less inclusive place.”
While this may be true, it’s hard to see what is gained by making the web more inclusive of pimps, pedophiles, and slave traders. The benefit of protecting vulnerable children and women from exploitation far outweighs any concerns about limiting obscene speech.
The second argument is that the law will make it more difficult for “non-trafficked” prostitutes to vet their johns. But with the exception of 12 counties in Nevada, prostitution is illegal throughout the United States. Why should we hinder our efforts to protect thousands from sexual slavery in order to make it marginally safer for a small group to engage in illegal activity?
The third and most reasonable argument against the law is that, as Alexandra F. Levy, a professor at the University of Notre Dame who specializes in anti-trafficking, says, it will “force sites like Backpage to censor their content, taking the crimes underground and making it harder to find victims.” But this criticism overestimates the effectiveness of having sites like Backpage keep trafficking in the “open.”
As law enforcement has often testified, Gaye Clarke notes, Backpage frequently takes action to hinder the police, such as removing ads posted in connection with sting operations. The company has also encouraged their customers to use anonymous payment methods, making it virtually impossible to trace to traffickers. Law enforcement is also only able to rescue a handful of victims advertised on sites like Backpage while thousands are allowed to remain on the public auction block each day.
Will the new law be effective?
Even though President Trump has not signed the bill into law, it’s already encouraging websites to change their policies.
Reddit—known as the “front page” of the internet—barred several prostitution-related forums hours after the Senate passed the bill. And on Friday, Craigslist shut down the portion of its website that allows individuals to seek encounters with strangers. Over the next few weeks, we are likely to see many other websites that facilitated trafficking make similar changes.