Anti-online sex trafficking bill gets crushed under Big Tech’s lobbying

A bill that purports to disrupt online child sex trafficking authored by Rep. Ann Wagner (R-Mo.) and amended by Rep. Bob Goodlatte (R-Va.) was rushed through the House Judiciary Committee last week and now heads over to the House Commerce Committee for consideration.

It should be a time of celebration. And yet, survivors, victims, and their non-profits could not be more distressed.

Why? Because several weeks ago, H.R. 1865 (the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” or “FOSTA”) was hijacked in the dead of night. Rep. Wagner, unbeknownst to the survivor and NGO community, caved in to the demands of certain tech lobby organizations, allowing the bill to be stripped of its heart and soul. FOSTA, originally an amendment to Section 230 of the Communications Decency Act, was quietly gutted, leaving nothing behind for victims or survivors. Despite its name, the bill no longer “allows victims to fight online trafficking.”

{mosads}H.R. 1865 was first conceived earlier this year on the heels of “I AM JANE DOE,” our documentary film which chronicled several Jane Doe children (and their families) who were waging a legal battle against Backpage.com to determine whether Backpage had facilitated the crime of child sex trafficking on its site. These children were 13, 14, and 15 years old when they were sold for sex via Backpage. Or, more bluntly put, repeatedly raped.

Many of the children who sued Backpage lost their cases because of Section 230 of the Communications Decency Act, which was enacted at the dawn of the internet. Section 230, originally intended to shield website bulletin boards from lawsuits related to third party content, has been, over the years, liberally expanded by federal courts.

Last year, the 1st Circuit Court of Appeals, in Doe v Backpage, radically stretched the protective shield of Section 230 to cover Backpage, even if it was engaged in facilitating the crime of sex trafficking (in violation of another federal statute). The 1st Circuit court also, perhaps wringing their collective hands, advised the children to seek a legislative solution to this conflict of laws.

The children have done just that.

After the release of “I AM JANE DOE,” a Congressional briefing was held where the Jane Doe children, their families and attorneys spoke about the urgency to amend Section 230. Wagner and Sen. Richard Blumenthal (D-Conn.) appeared at the briefing, both vowing to work on legislation to amend Section 230 so that criminal conduct by a website could no longer be shielded in cases of trafficking.

Wagner filed H.R. 1865 shortly thereafter, and began making public appearances with both the film and the Jane Doe families. Meanwhile, Sens. Blumenthal, Rob Portman (R-Ohio), John McCain (R-Ariz.), Claire McCaskill (D-Mo.), and Heidi Heitkamp (D-N.D.) followed suit in the Senate, introducing a companion bill to clarify Section 230 to remedy the 1st Circuit ruling.

The Senate bill, S.R. 1693 (The “Stop Enabling Sex Traffickers Act of 2017” or “SESTA”) made rapid progress, after early opposition from the tech community. Garnering support from a wide range of stakeholders (including Facebook, the Internet Association, advocates, victims, NGOs, Oracle, Disney, CoStar, HP and other Fortune 500 companies, the National Urban League, The National District Attorneys Association, and many others), SESTA was passed unanimously by the Senate Commerce Committee last month. Victims, survivors, and their non-profits were heartened.

And that is precisely when things took a dark turn in the House. Word began seeping out that FOSTA was to be entirely replaced with a bill that would not amend Section 230 at all. The replacement was apparently predicated on a submission to the House Judiciary Committee presented by Chris Cox, a former congressman and outside counsel for NetChoice, a bill supported by the Internet Association, SIIA, CCIA (all of whom count Google among their funders), and other powerful tech lobbying organizations. Cox had, only weeks earlier, testified against FOSTA before the House Judiciary Committee.

This full replacement of FOSTA was done under cover of darkness, quickly and quietly, with no input on the specific language from the NGO community, victims or survivors. The bill, which now amends the Mann Act, fails to address the Section 230 problem identified in the 1st Circuit, and worse, strips away civil remedies from survivors as well as states attorneys general. The language also appears to permanently foreclose all private rights of action which victims currently have under the federal trafficking statute.

In addition, some prosecutors are worried about the high standard of proof (specific intent to facilitate prostitution) and whether this new bill now requires specific intent to facilitate interstate prostitution. The net result is a new bill which genuflects to the altar of business practices and profitability where children and trafficking victims are collateral damage.

Section 230, which conferred a protective shield back in 1996 when it was first enacted, allowed an innovative and thriving online economy to grow and prosper. But, interpreted to remove all responsibility for third party content, Section 230 fostered an anything goes, unruly, largely unregulated online world where human trafficking has exploded. It is simply time to recalibrate. Outdated laws that serve to protect business models which facilitate crime need to be updated.

Clarifying Section 230 so that it does not cover bad actors who knowingly facilitate sex trafficking is a minor tweak to this decades-old-statute, and is long overdue. Yet, the strategy of powerful tech lobby forces to derail this legislation exposes these companies and organizations for exactly what they are. Complicit. Soulless. Exhibiting a stunning lack of integrity and a shocking lack of moral compass.

We ask that the co-sponsors of FOSTA hear the voices of the children, the victims, survivors and larger NGO community, and withdraw your co-sponsorship. FOSTA, as now drafted, does more harm than good. We also ask, since Rep. Wagner no longer appears to be our champion, that a new leader introduce SESTA, a bill that all stakeholders have reviewed and support, and pass it in the House.

Every day of delay is another day where a child is exploited online.

Mary Mazzio is the writer and director of “I AM JANE DOE.” Follow her on Twitter @marymazzio.