Senate's Latest Attack On Backpage Will Be Massively Counterproductive, Create Tremendous Harm

Legal Issues

from the this-is-a-bad-approach dept

It’s no secret that there are a bunch of folks in the Senate who really, really, really dislike the fact that the site Backpage has been abused by some users for sex trafficking. They should be happy that through a lot of public pressure, Backpage has shut down its adult section.

For reasons that are not entirely clear, many people seem to blame Section 230 of the CDA for the fact that sex traffickers have used Backpage.com. This is… weird and doesn’t make much sense. After all, Section 230 doesn’t apply to federal crimes around sex trafficking. So, if the platform itself is violating the law, the DOJ has the power and every right to go after the platform. Furthermore, as we’ve noted time and time again, these platforms have actually been tremendously helpful in allowing law enforcement to track down those responsible for trafficking and to help victims of trafficking. Still, because of this misplaced focus on CDA 230, earlier today, a bunch of Senators released a counterproductive and dangerous bill that would blow a massive hole through CDA 230, and it’s clearly written 100% to focus on Backpage. Nearly all of the quotes about the bill from the Senate co-sponsors mention Backpage.

And that’s… odd. Because just two years ago, Congress passed, and President Obama signed, another anti-trafficking bill that had provisions that were similarly designed solely to target Backpage. So why aren’t those actually being used if Backpage is such a problem (and, again, the DOJ could easily go after Backpage for violating trafficking laws if it actually did so). It’s especially odd that none of the supporters of this new bill even mention the fact that they passed a similar “kill Backpage” bill just two years ago and no one’s tried to use it.

And even worse, the approach in this new bill, dubbed the Stop Enabling Sex Traffickers Act, will be massively counterproductive to the goal of stopping sex trafficking. While the bill’s supporters claim it is “narrowly focused,” it is anything but that. It opens up a giant hole in CDA 230 — the law that protects internet platforms from being blamed for the actions of their users — saying that if federal sex trafficking violations (which, again, are already NOT covered by CDA 230) are involved, state Attorneys General and private individuals can now sue platforms — especially if the platforms have “knowledge” of how they’re being used for trafficking.

Law professor Eric Goldman has a thorough description of the problems with the bill.

what online services will be regulated other than Backpage? The press release accompanying the Senate bill draft references Backpage a half-dozen times. Is this law only about making sure a single company, Backpage, is dead dead dead? Or will the bill reach other online services? If so, who? The most likely answer is that this law potentially implicates every online service that deals with user-generated content, which would make this an unusually wide-ranging bill.

what about the SAVE Act, the law (sponsored by Rep. Wagner) that Congress passed in 2015 to kill Backpage? The bill?s press release doesn?t mention the SAVE Act once, even though it was designed to accomplish the same policy goals. Why not? Did Congress misjudge the policy efficacy of that law? Or perhaps it?s too early to judge the SAVE Act?s efficacy? A federal grand jury in Phoenix is considering indicting Backpage or its executives, and the odds are that the SAVE Act would be key ground for such an indictment. So perhaps Congress has already enacted all of the legislation it needs to kill Backpage?? If so, a new and major exclusion to Section 230 would not add any new policy benefits but would come with substantial policy costs.

does the elimination of a centralized online prostitution ad venue actually improve the situation for victims of sex trafficking? This is the fundamental policy objective of the bill, but I have yet to see any good evidence demonstrating this outcome. Maybe it?s so intuitive (shut down Backpage, victims are better) that members of Congress don?t expect to see any proof, but this is hardly intuitive to me. We?ve seen over and over again that anti-prostitution regulations redirect the demand for prostitution elsewhere. If this bill accomplishes its goal, where will that demand get redirected, and how will that affect victims? We?ve also seen many successful victim protection efforts by law enforcement using the public ads as leads/evidence. What will happen to those enforcement efforts, and what does that mean for the overall protection of victims?

what existing laws will be newly excluded from Section 230, and how will plaintiffs use those laws? I am extremely confident that none of the bill co-sponsors have comprehensively inventoried the existing state laws that will have tenable causes of action against online intermediaries once Section 230?s immunity is lifted. It could be zero laws (unlikely); it could be hundreds or thousands of new laws. Shouldn?t we model these effects before unleashing those laws?

I’d argue there are even bigger problems with the bill as well, focused on this: the end result will almost certainly be seriously counterproductive to the goal of ending trafficking. CDA 230 has two provisions that work together in unison: one that protects platforms from liability for actions of their users and a second one that is equally important (but often forgotten) that says that if a platform does moderate content, that moderation does not introduce new liability. The combination of these two provisions actually encourages platforms to monitor and police themselves, without adding a risk of new liability.

However, this new law completely undermines that. It includes a provision that says “knowing conduct” makes you liable for assisting, supporting or facilitating trafficking. And how might one “know” of such conduct? If you know how your platform is being used. Thus, the end result of this bill would be the exact opposite of what its sponsors are seeking. It will encourage platforms to turn a blind eye to what’s happening on their platform, out of fear that reviewng or moderating content might be used as evidence of “knowledge.” Yikes!

Even worse, this will undermine a bunch of ongoing projects that the tech industry has put together to help stop trafficking already. If you look at what programs are actually effective, they tend to involve tech companies actively working on solutions and information sharing. But, now, if a tech company works on one of those programs, that could be used as evidence by grandstanding state Attorneys General or trial lawyers as “evidence” of “knowledge” of their platforms facilitating trafficking! Why would any tech company continue working on these effective programs when the “thanks” they’ll end up getting are a bunch of lawsuits?

And, we’ve already seen years of state AGs grandstanding on issues by blaming tech companies for things their users do, as well as hundreds, if not thousands, of frivolous lawsuits where private individuals and companies sue platforms over actions of their users, all trying to find holes in CDA 230. And this bill opens up a wide one. Just make some halfway credible claim that someone somehow engaged in trafficking uses the platform and voila. The liability for platforms is going to be amazing, and the end result is… what? Backpage has already shut down its adult section, and sex trafficking has just moved elsewhere. The bill doesn’t target the actual perpetrators at all. It will just make them harder to find.

Tech companies who currently help catch traffickers will now be told not to do that out of a fear of liability. Platforms that already cut off traffickers from using the platform will now have the incentive to turn a blind eye (and certainly not to help law enforcement). And a ton of frivolous lawsuits will likely be filed. And it’s all to “stop” Backpage — a company that has already decided to stop accepting such ads.

Sex trafficking is a real and serious problem. But this weird sledge hammer approach directed at one particular company — Backpage — is misguided on so many levels. It doesn’t provide the DOJ with any more tools than it already had to go after Backpage, if the company violated the law. It only provides more tools to state AGs and trial lawyers to bring frivolous lawsuits and fishing expeditions against tons of other companies, many of whom have actively helped to attack the problem of trafficking. And, the bill is designed in a way that encourages them to stop helping.

And make no mistake, those who speak up against this bill will be unfairly attacked with a broad brush, with claims that they’re “supporting” trafficking by opposing this bill. But the opposite is true. This bill will not help stop trafficking. In all likelihood it will make the problem worse.

Filed Under: bob portman, cda 230, claire mccaskill, good samaritan, richard blumenthal, section 230, sex trafficking, trafficking
Companies: backpage