How A Law That Will Allegedly Help Stop Online Sex Trafficking May Undermine The Internet

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Eric Lieberman Managing Editor
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Craigslist, one of the world’s favorite virtual flea markets, announced Friday it is taking down its oft-appreciated personals page in direct response to a new law recently passed by both chambers of Congress.

With the prospective swipe of a pen from President Donald Trump — the imminence of which is not clear — websites could soon be held liable to any activity or content that is found on the platforms. Law enforcement could even make sites retroactively responsible for failing to comply with the law before its possible passage.

“Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline,” Craigslist wrote in a simple blog post. “Hopefully we can bring them back some day. To the millions of spouses, partners, and couples who met through craigslist, we wish you every happiness!”

The Senate passed the Fight Online Sex Trafficking Act (FOSTA) on Wednesday in a landslide 97-2 vote. The only two to vote against the bill were Republican Sen. Rand Paul of Kentucky and Democratic Sen. Ron Wyden of Oregon.

“History shows that politicians have been remarkably bad at solving technological problems,” Wyden wrote in February. “I take a backseat to no one when it comes to fighting sex trafficking and locking up the monsters who prey on the defenseless. However, the bill … will make it harder to catch bad actors and protect victims by driving this vile crime to shadowy corners of society that are harder for law enforcement to reach.”

The House passed the pending bill in late February in similar fashion, with 388 representatives for, and only 25 against. (RELATED: House Passes Bill Trying To Stop Sex Trafficking, But Some Tech Companies Worry About Potential Censorship)

“Online trafficking is flourishing because there are no serious, legal consequences for the websites that profit from the exploitation of our most vulnerable,” Republican Congresswoman Ann Wagner of Missouri, who introduced the first version of the legislation, said before it was set to hit the floor for debate.

Not all federal institutions were originally enthusiastic about the legislation. The U.S. Department of Justice sent a letter to Republican Rep. Bob Goodlatte of Virginia, chairman of the House Judiciary Committee, in late February arguing that a provision, Section 2421A of title 18, in FOSTA is counterproductive “because it would extend to situations where there is a minimal federal interest, such as to instances in which an individual person uses a cell phone to manage local commercial sex transactions involving consenting adults.”

That language was altered to only include operators of an “interactive computer service” — in all likelihood to appease the larger law enforcement community.

Still overall supportive of the legislative effort, the DOJ also stated that while “well intentioned,” Section 4 includes “new language” that creates “additional elements that prosecutors must prove at trial,” therefore making it more difficult to hold perpetrators accountable. That language, which defines “participation in a venture,” is unnecessary, according to the DOJ, because there are already portions of the bill that purportedly set “an appropriately high burden of proof.”

Furthermore, the DOJ expressed a “serious constitutional concern” with Section 4, namely the aforementioned stipulation of the looming law that says offenses transpired before official enactment are still chargeable.

“This bill would ‘impose a punishment for an act which was not punishable at the time it was committed’ or ‘impose additional punishment to that then prescribed’ it would violate the Constitution’s Ex Post Facto Clause,” wrote Stephen E. Boyd, the U.S. assistant attorney general. “The Department objects to this provision because it is unconstitutional.”

The Electronic Frontier Foundation (EFF), a well-known digital privacy rights group, along with several other advocacy organizations in a similar sphere of interest, indirectly agree with the DOJ’s sentiment.

Equating it to censorship of the internet, EFF argues that while FOSTA “might sound noble” due to its name, it would “do nothing to stop sex traffickers” and will only lead to state-sanctioned, heavy-handed oversight by private companies.

“It’s difficult for a human to distinguish between a legitimate post and one that supports sex trafficking; a computer certainly could not do it with anything approaching 100% accuracy,” EFF activist Elliot Harmon wrote in a February blog post. “Instead, platforms would have to calibrate their filters to over-censor. When web platforms rely too heavily on automated filters, it often puts marginalized voices at a disadvantage.” (RELATED: Are Faulty Algorithms, Not Liberal Bias, To Blame For Google’s Fact-Checking Mess?)

The bill, if passed, would undermine — or properly update, depending on perspective — Section 230 of the Communications Decency Act (CDA) of 1996. This law is how the internet and economy have been able to flourish, according to the EFF and other privacy-focused nonprofits.

“The failure to understand the technological side effects of this bill — specifically that it will become harder to expose sex-traffickers, while hamstringing innovation — will be something that this congress will regret,” said Wyden.

Several tech companies originally opposed FOSTA and other similar legislative proposals, but eventually compromised over apparent fears of even stricter regulations. Google, for example, has been peppered with accusations that it helps aid sex trafficking by offering certain manipulative and nefarious users extensive freedom to operate.

“We are thrilled to see the Senate close a loophole and take steps to stop the purchase and sales of women and girls for sex over the internet and urge the President to sign this bill into law without delay,” said Shelby Quast, director of EqualityNow, a human rights organization that focuses on female genital mutilation issues, among several other concerns. “We will stand with survivors in holding companies that knowingly sell women and girls’ bodies online for sex accountable under the law.”

There are approximately 20.9 million victims of human trafficking around the world, according to 2012 estimates from the International Labour Organization. Roughly 26 percent are children, and 55 percent female. There were 4,460 reported cases of human trafficking in the U.S. in 2017, with at least 3,186 cases (or 71.4 percent) related to sex. There were hundreds of other cases either not specified or that included both sex and labor trafficking, so statistics may be understated.

Google declined to respond to The Daily Caller News Foundation’s request for on-the-record comment, but pointed to official remarks made by the CEO of the Internet Association, a trade organization that represents many of the biggest tech companies.

“The internet industry is committed to ending trafficking online,” Internet Association President Michael Beckerman stated in a press release. “It is, at the same time, important to protect the laws that allow the internet to thrive and empower online platforms to foster a legal and safe environment. CDA 230 continues to be integral to the success of the internet. It enables free speech, digital commerce, startup formation, and virtually all user-generated content online.”

Changing Section 230 of CDA through FOSTA may make it almost impossible for certain online platforms to operate without almost always violating the law. For example, there were lawsuits stemming from the Orlando, Fla., nightclub shooting in June, 2016. Families of victims filed a federal civil suit against Twitter, Facebook and Google several months after, reportedly contending that the three web platforms “provided the terrorist group ISIS with accounts they use to spread extremist propaganda, raise funds, and attract new recruits.”

“Without Defendants Twitter, Facebook, and Google (YouTube), the explosive growth of ISIS over the last few years into the most feared terrorist group in the world would not have been possible,” the lawsuit states, according to Fox News.

Several legal experts and lawyers at the time told TheDCNF that suing these tech companies would be an almost certainly futile endeavor.

“The primary obstacle to this suit is Section 230 of the Communications Decency Act, which provides a safeharbor for an ‘interactive computer service,’ such as Twitter or Facebook,” Josh Blackman, an associate professor at the South Texas College of Law in Houston, told TheDCNF many months ago. “Beyond Section 230, the First Amendment serves as a significant barrier.”

“Those lawsuits are going nowhere. Service providers can’t be held liable just for providing accounts to bad speakers who would use the accounts to convey bad messages. See, e.g., Fields v. Twitter,” Eugene Volokh, professor at the UCLA School of Law in California, told TheDCNF in December 2016.

Daniel Lyons, associate professor at Boston College Law School, agrees with Blackman and Volokh.

“This isn’t the first time that victims have tried to sue social media sites for facilitating communication among terrorists,” said Lyons. “But U.S. law pretty clearly insulates them from liability.”

That may not be so anymore.

Craigslist did not respond to TheDCNF’s request for further details in time of publication. The White House also failed to respond to TheDCNF’s inquiry into if Trump plans on signing the bill into law.

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