On Wednesday, the Senate passed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). This law revokes the complete immunity for websites and apps which knowingly enable and profit from sex trafficking that these sites had previously enjoyed under Section 230 of the Communications Decency Act (CDA). The House passed the bill in February and President Donald Trump has indicated he will sign it. While the law should be common sense, its passage required overcoming a sustained lobbying campaign by tech giants like Microsoft and Google. Rather than oppose the legislation out in the open, they worked behind the scenes to surreptitiously kill the bills by funding third parties to do their dirty work for them.
When the Internet Association (which represents Microsoft, Google and most other tech giants) opposed the bill last September, it qualified that “criminal actors and facilitators of human trafficking – including rogue operators like Backpage.com” should be held responsible. The Association argued it supported the law’s aims, but it was too vague and could create a slippery slope.
However, the bill only became necessary because tech titans helped protect Backpage from liability. Superficially, Backpage is a general classified ad site. Its design and categories mirror Craigslist. However, in practice, it makes 93% of its revenue from “adult services.” When sex trafficking victims and local law enforcement have tried to hold Backpage responsible for enabling child prostitution on its site, the courts have held that the CDA’s Section 230 gives online platforms like Backpage immunity for everything posted on their sites.
In numerous legal cases, the Electronic Freedom Foundation (EFF) and Center for Democracy and Technology (CDT) filed amicus briefs in support of Backpage and against child victims. In one brief, they argued that Backpage should keep its immunity even if it had acted in “bad faith,” and had wanted illegal prostitution ads on the site. The two organizations argued the website should only lose its privilege if it had “required or forced traffickers to post certain content within their advertisements for underage sex.”
Both groups have extensive ties to big tech, particularly Microsoft and Google. The companies have given millions of dollars to CDT and have seats on the non-profit’s board. Microsoft’s deputy general counsel Julie Brill is a CDT board member, for example, while Microsoft’s head lobbyist Fred Humphries and Google’s public policy chief Adam Kovacevich serve on CDT’s advisory council.
The Stop Enabling Sex Trafficking Act (SESTA) was introduced last year explicitly to overcome the Backpage immunity problem. Initially, Google quietly lobbied against the bill. Microsoft filed lobbying disclosure on the bill, but did not indicate whether they supported or opposed it, and they did not make any public statements. Then, in November, the Internet Association supported a revised version of the bill which became FOSTA. Google independently endorsed the Internet Association’s position.
Yet while the companies claimed to support FOSTA, EFF and CDT led the lobbying fight against both SESTA and FOSTA. The STOP SESTA coalition was led by EFF, CDT and a number of other Google and Microsoft-funded non-profits, notably Engine, Access Now, and New America’s Open Technology Institute. Three of Engine’s founders are former Google employees, and it shares board members and lobbyists with the search giant. Google executive Eric Schmidt was New America’s chairman until 2016, while both Microsoft and Google are major New America supporters. Last year, New America fired several Google critics, with its president, Ann Marie Slaughter, telling them, “we are in the process of trying to expand our relationship with Google. . . just THINK about how you are imperiling funding for others.”
Why do these companies defend Backpage? One could point to the trend of “tech bros” getting caught up in online sex trafficking stings themselves. A 2015 sting in Washington netted high-level Microsoft and Amazon employees using their work emails to communicate with Seattle pimps for the purpose of buying trafficked Asian women. But more likely, they simply do not want to be held accountable for profiting from illegal activity. While these sites devote enormous resources to silencing conservatives—using Section 230 to justify their censorship—they want to avoid any responsibility for openly criminal activity, even forced child sex trafficking that occurs on their platforms.
FOSTA passing the House and Senate is an enormous victory for victims of sex trafficking. While this is the most important reason to celebrate its passage, we should also applaud Congress for finally overcoming Big Tech’s secretive influence.
Noah Peters is an attorney in Washington, D.C.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.