How the Portman-McCaskill proposal on sex trafficking could harm online businesses

Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Mo.), along with a bipartisan group of cosponsors, introduced legislation this month that would make it easier to prosecute websites that facilitate sex trafficking. Unfortunately, the Portman-McCaskill bill would have unintended consequences that would threaten free speech online and expose lawful companies to significant legal jeopardy. A better approach would be for the U.S. Department of Justice to take action under current law against sites that facilitate sex trafficking.

The proposed legislation—the Stop Enabling Sex Traffickers Act—would modify Section 230 of the Communication Decency Act to make it easier to prosecute websites that contribute to sex trafficking. Specifically, the bill would allow states to bring criminal cases and individuals to bring civil lawsuits against any online business involved in sex trafficking. The intent is to make it easier for state attorneys general and victims to file lawsuits against sites like Backpage.com, a notorious classified ads website, which, mounting evidence suggests, has knowingly facilitated sex trafficking online. But the risk is that it would unintentionally expose good actors, such as responsible social networks and dating sites, to frivolous lawsuits.

{mosads}It is important to understand the role of Section 230 in encouraging innovation on the Internet. Established in 1996, Section 230 provides online intermediaries with legal immunity for the actions of their users. This means, for example, that a web hosting company cannot be held legally responsible for the content of a blog hosted on its servers, and a blog operator cannot be held responsible for the comments of one of its readers. It is difficult to overstate the significance of this law for the Internet economy. Without it, sites like YouTube, Facebook, and Wikipedia would not exist and the richness of the Internet would be vastly limited.

Unfortunately, the proposed changes to Section 230 would have many negative implications for average Internet users and online platforms. By limiting Section 230 protections, many online hosting platforms would be fair game for civil lawsuits that ordinarily would be dismissed out of hand. Online platforms wanting to shield themselves from this liability would have two options. First, they could crack down on what they allow users to post online, thereby severely curtailing speech. Faced with potential criminal and civil penalties, most online platforms likely will err on the side of removing content rather than risk making the wrong choice.

Second, they could eliminate enforcement of community standards, such as the ability for users to flag inappropriate content, to avoid any knowledge of malicious activity that could implicate their business in a lawsuit. Either option would be bad for Internet users and sex trafficking victims.

If changing Section 230 were the only way to address sex trafficking, perhaps this legislation would be justified. But it is not. Section 230 explicitly states that it does not give immunity to any entity that breaks federal law. This means that the federal government can, and should, bring charges against any company that contributes to sex trafficking.

Indeed, in mid-July, Reps. Ann Wagner (R-Mo.) and Carolyn Maloney (D-N.Y.), co-chairs of the Human Trafficking Task Force, sent a joint letter to Attorney General Jeff Sessions in which they stated that “the U.S. Department of Justice already has the tools it needs to bring a strong criminal case against Backpage.com.” Congress should continue to press the Justice Department to pursue this case and report back on any additional tools it needs to successfully prosecute offenders.

Human trafficking, especially child sex trafficking, is a horrific crime, and Sens. Portman and McCaskill should be commended for their dedication to raising awareness about this problem and finding a solution. However, while clearly well-intentioned, their legislation is not the best path forward. Section 230 is one of the most important U.S. laws for the internet economy, and Congress should avoid weakening it. Instead, it should focus on equipping the Department of Justice with all the resources it needs to investigate and prosecute those who attempt to profit from exploitation and trafficking.

Daniel Castro (@CastroTech) is vice president of the nonprofit Information Technology and Innovation Foundation, and director of the Center for Data Innovation.

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