Human Rights Groups Ask Senate To Reject Proposed Sex Trafficking Law That Strips Long-Held Protections For Website Owners
from the government-would-rather-create-new-crimes-than-stamp-out-the-old-ones dept
Various members of the US government are hoping to repeat the dubious success of shutting down Craiglist’s adult ads by targeting Backpages.com. This has gone on for a few years at this point, with states’ attorneys general and various legislators laying the blame for sex trafficking at the feet of the online classified ad service.
Rather than realize the service could be an ally in the fight against these criminals, law enforcement agencies — along with like-minded government officials — have spent a lot of time and money pursuing a total shutdown of the service.
Now, the Senate is considering the “SAVE Act” (Stop Advertising Victims of Exploitation Act)[pdf link], which was passed out of the House by a 392-19 vote earlier this year. The bill expands the definition of “trafficking” to include “advertising,” amending the definition of this federal crime.
Worse, it strips away protections website owners who host third-party content have enjoyed for years. The summary provided by Congress.gov highlights proposed changes that will do damage to many more entities than its intended targets.
Shields from liability under such prohibition an Internet access service provider, browser provider, common carrier, telecommunications carrier, or other generic search or utility provider solely based on providing generic search or utility services.
Notably, website owners are excluded from these liability protections, basically eliminating Section 230 immunity for anything the government considers to be an “adult advertisement.”
Requires anyone selling, commercially promoting, or placing an adult advertisement to: (1) verify the identity of each person purchasing advertisement space for, and each person depicted in, such advertisement; (2) verify that each person whose goods or services are advertised is not under age 18; (3) create and maintain individually identifiable records pertaining to each such person for at least seven years; and (4) affix to each adult advertisement a statement describing where such records may be located.
Not only will website owners now be held accountable for third-party content, they’ll also be expected to police it to ensure nothing runs afoul of this broadly-worded law. Failure to do so could result in a five-year prison sentence.
We of course share the vital goal of ending human trafficking, of all kinds. Trafficking is an egregious crime. Congress should provide additional funding for desperately needed victims services, counseling, and community outreach as well as prosecutions under the strong federal law that already criminalizes the conduct of those who knowingly advertise such activity online.
However, the unfortunate fact is that this bill is overbroad, counterproductive, and would place unconstitutional burdens on the free speech and privacy rights of millions of Americans who have nothing to do with trafficking. S.2536 creates new and draconian federal criminal liability for websites and other online services that host content created by third parties, including both online and print publications, many of which are small businesses. Furthermore, not only does this raise serious free speech and privacy concerns, it will drive the truly bad actors – the traffickers – underground and overseas, while subjecting wholly innocent individuals to potential criminal liability for unknowingly running afoul of this sweeping law.
The letter also points out how the addition of new recordkeeping requirements will only serve to turn more law-abiding citizens into criminals — and easy targets for cops and prosecutors who love easy “wins.”
S.2536 does not require that the website operator, online service, or publication know or intend to host “adult advertising” content before imposing liability. If one of a site’s millions (or billions) of users were to upload a post or an image that fell under the bill’s broad definition and that site operator had not already collected a copy of the user’s driver’s license, the site operator would face a mandatory minimum penalty of $250,000 and up to 5 years in prison. The effects would be felt the hardest by smaller businesses, both online and print, for whom one single violation triggering the mandatory minimum penalty could very well mean bankruptcy, and would serve as a disincentive to new start-ups.
Thus, S.2536 would create obvious privacy concerns, as any reasonable operator would feel immense pressure to collect the government-issued photo ID of each of their users to guard against the potential that one of them might one day post lawful content covered by the bill.
The end result of this legislation won’t be less trafficking, but rather, more criminals. Law enforcement resources will be diverted to investigate and prosecute site owners and third-party contributors, neither of which may be aware of the new regulations, much less what the government will decide is covered by the term “adult advertising” on any particular day, in any particular jurisdiction. Rather than contribute to the elimination of trafficking, this legislation will simply dump more people in prison and run more small companies out of business.
Will the Senate listen? Considering that opposing this bill puts you on the side of sex traffickers and child exploitation, the odds of this bill being rejected are very low. Hopefully, some sanity will be amended into the proposed bill before it goes up for a vote. But the previous margin of victory (392-19) suggests this will sail right through the Senate as well, possibly before anyone notices the numerous problems inherent in the legislation.