WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230

I rarely blog about draft bills that have not yet been introduced. Sometimes those drafts never get introduced at all; other times, the draft bills are revised in key ways before introduction. This particular draft has been circulating for a month, which increases the likelihood that I’m commenting on a draft that isn’t the final version. Still, because this draft bill has the potential to profoundly impact the Internet community, I’m suspending my normal caution and blogging it anyway. Indeed, I believe for the first time ever, I’m adding the Drudge Siren to this post to emphasize my concerns:

What the Bill Says

The draft bill is called the “No Immunity for Sex Traffickers Online Act of 2017.” It’s authored by Rep. Ann Wagner (R-Mo.). The bill would amend Section 230 in two main ways:

1) it would add a new statement to Section 230’s purpose: “to ensure vigorous enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking of children, including through the availability of a civil remedy for victims of sex trafficking of children”

2) it would exclude the following claims from Section 230’s immunity:

– “any State criminal statute relating to sexual exploitation of children or sex trafficking of children” from the immunity
– 18 USC 1595, which has a civil remedy for sex trafficking
– “any other Federal or State law (to the extent such law does not impose criminal penalties) relating to sexual exploitation of children or sex trafficking of children”

What’s the Goal?

The draft bill does not mention Backpage, but its objective couldn’t be clearer. This is a bill you’d push if you believed Backpage was profiting from sex trafficking, and you wanted to give carte blanche to the state AGs and private plaintiff to destroy them.

But…sorry to state the obvious…Backpage already got the memo. In January, Backpage exited the online prostitution ad industry DESPITE SECTION 230’S IMMUNITY. (To clarify timing, Backpage shut down the relevant ad categories a month before the date of this draft). As far as I know, no one has filled the void left by Backpage’s departure. So it’s not clear what current publishers the bill seeks to restrict or what existing behavior the bill wants to stop. I have more to say on Backpage’s demise in the linkwrap below.

Even more confusingly, this is not Rep. Wagner’s first effort to stop online sex trafficking ads. She also sponsored the 2015 SAVE Act (folded into the Justice for Victims of Trafficking Act of 2015), which created a new federal crime for publishing online prostitution ads. Backpage’s proactive attempt to invalidate the law failed, but the court’s opinion identified some important First Amendment limits to the law; and those First Amendment concerns pervade all regulation in this area. But the fact Rep. Wagner is circling back to the same topic, less than 2 years after enacting a major new federal crime, raises some questions. Did we really need the SAVE Act? Why isn’t it sufficient? Why hasn’t the SAVE Act solved the problems she’s concerned about? Why would this bill would do a better job than the SAVE Act, and at what cost?

This Amendment Would Be Bad for the Internet

As you may recall, in 2013, 47 state AGs (including California’s then-AG and now-Senator Kamala Harris) sent a letter to Congress complaining that Section 230 prevented them from squashing Backpage and requesting that Congress amend Section 230 to exclude all “federal *and state* crimes.” Congress never responded to the letter–until now. Consistent with the AGs’ request, Rep. Wagner’s bill would open up Section 230 to state crimes, but only if the crimes relate “to sexual exploitation of children or sex trafficking of children”–a smaller universe than the AGs’ request to open up *all* state crimes.

In 2013, I wrote an essay explaining the problems with the state AGs’ proposal to exclude state crimes from Section 230. Most of my analysis applies to the proposed bill, so I strongly commend that you read the whole essay. Some of the main points I made in the essay:

* State Criminal Laws Are Numerous and Broadly Worded
* States Create New Stupid Anti-Internet Laws All the Time
* States Aren’t the Right Regulators of the Internet
* State AGs are Provincial
* State AGs Are Elected

The essay also gave some examples of how expansive criminal laws can chill Internet entrepreneurship by making entrepreneurs fear for their liberty. Given how the Backpage executives have already been (wrongfully) thrown into jail despite Section 230, this is highly salient risk in this context. The bill would expose Internet entrepreneurs to additional unclear criminal risk, and that would chill socially beneficial entrepreneurship well outside the bill’s target zone.

That essay concluded: “The amendment would unleash hordes of provincial headline-seeking prosecutors using countless broadly worded and possibly antiquated laws to go after Internet companies outside their states. It’s easy to see how this massive expansion of prosecutorial activity could undercut the legal reliability and certainty that Section 230 currently provides to UGC entrepreneurs, leaving all of us much poorer.”

But the bill would also go much further than the AGs’ request to loosen up criminal enforcement. The bill would also open up Section 230 to civil claims “relating to sexual exploitation of children or sex trafficking of children.” What does that mean? I’m not sure, but I expect crafty plaintiffs’ lawyers could find dozens or hundreds of tort claims that they could argue, consistent with Rule 11, relate to this exclusion. If so, it will be open season on defendants who think Section 230 protects them.

Plus, the door would be open for states to enact new laws that could get around Section 230. For example, imagine a state currently has, or newly enacts, an existing strict liability crime, with a bonus civil cause of action, against publication of online prostitution ads. The strict liability rule might run into First Amendment concerns, but we won’t know that until the court challenge. As we know, if there’s not a single home for them, online prostitution ads migrate into other topics. So any classified ad or message board service–even those that are completely free–would need to prescreen most/all user postings to screen out the possibly-small percentage of those postings that violate the new law. The overall cost imposition on publishers, and associated chilling effect, attributable to the law would be huge. Note that the law doesn’t limit itself to ads, so new crimes and torts could reach even non-commercial activity related to child sex trafficking (whatever that means).

This scope creep is exactly why I’ve previously argued that “small” exceptions to Section 230 rarely remain small in practice. Any exclusion to Section 230 becomes a key crack that plaintiffs can drive wedges into; and these wedges will cause the crack to expand over time. No doubt, this proposed bill would provide a very exploitable crack for plaintiffs to pursue.

I Fear A Bill Like This Could Possibly Pass

In its 20+ years, Section 230 has been amended–directly or indirectly–relatively few times and in ways that more often helped Section 230 rather than hurt it. The amendments that come to mind:

* the 1998 amendment to add Section 230(d), a useless and anachronistic mandatory disclosure about the availability of filtering software. Many websites ignore this obligation.
* the Unlawful Internet Gambling Enforcement Act of 2006, which created an exclusion to Section 230 for civil orders against gambling sites. I’m not sure if or when that law’s exclusion to Section 230 has ever been used.
* the SPEECH Act, which extended Section 230’s protection to overseas court orders.
* the SAVE Act, intentionally designed to add a new federal crime for publishing online prostitution ads to take advantage of Section 230’s federal crimes exclusion.
* the Defend Trade Secrets Act, which preserved the Ninth Circuit’s ccBill ruling that applies Section 230 to state IP claims.

As this list shows, Congress hasn’t changed Section 230’s core immunity since the beginning. In contrast, this bill would dramatically reshape Section 230’s contours. That makes the proposed bill a much more significant, and troubling, endeavor than prior Section 230 reforms.

Worse, a bill like this could very well find support in today’s Congress:

1) Rep. Wagner is a Republican, so this bill could advance through the Republican-controlled Congress on that basis alone.
2) The draft bill positions itself as a child protection measure, putting opponents in a potentially awkward position. That may be enough to dissuade the major Internet players from speaking out publicly.
3) I doubt either Senator (nominally) representing Silicon Valley will oppose this bill. Indeed, Sen. Harris signed the 2013 AG letter and authorized the misguided and likely lawless prosecution of Backpage, so I would anticipate her to be an active supporter of the bill despite its potentially devastating effect on her state’s technology community.
4) Beyond point #2, it’s unclear that the major Internet companies will oppose the bill. They’ve frequently stayed on the sidelines during Backpage’s battles, content to let Backpage carry the water for everyone. With Backpage out of the industry, they no longer get the free ride. This draft bill will force a decision: acquiesce or fight. I don’t know what they will choose.

The bill’s scope sets up a major battle for Section 230’s soul. Combined with Section 230’s shitty 2016, it’s a reminder of how fragile Section 230’s immunity is–and how much we need to invest to keep it. What steps will you take to advance that goal?

BONUS: Linkwrap about Backpage’s Demise

Backpage boldly moved into the online prostitution ad industry after Craigslist exited that industry. Like Craigslist, Backpage routinely won court battles defending its right to be in the industry. That includes the First Circuit’s Doe v. Backpage ruling, perhaps the most important Section 230 ruling since the Ninth Circuit’s en banc Roommates.com ruling. Yet, ironically, Backpage’s departure from the industry virtually mirrored Craigslist’s exit: each of them, frustrated by endless enforcement actions seemingly beyond the law’s scope, gave up by displaying an angry “censored” statement over their adult categories. The identical denouements are a cautionary tale for the next entrepreneur who wants to build a business around online prostitution ads.

Backpage’s exit came immediately following the release of a staff report by the Senate Permanent Subcommittee on Investigations, with the give-away-the-ending title: Backpage.com’s Knowing Facilitation of Online Sex Trafficking. The report rehashes many of the facts and arguments that the People v. Ferrer ruling rejected, so it’s one of those government documents that looks really damning if you don’t know what the law actually says. See Backpage’s statement plus coverage from Reason, the Phoenix New Times, the Washington Post and Techdirt.

If Backpage thought its exit would stop the legal fire being directed against it, it misjudged. In addition to Rep. Wagner’s proposal to eviscerate Section 230 to kill Backpage’s corpse, California’s new state AG still hasn’t stopped the second round of criminal prosecutions of Backpage’s executives, despite the fact that it’s largely built on facts and arguments that didn’t work in the first prosecution. There have also been new civil lawsuits filed against it based on the Senate reports.

In the meantime, we are still wondering the only question that really matters: is the world better off with or without Backpage publishing online prostitution ads? The sex trafficking advocates have routinely assumed without proof that Backpage’s exit would make things better for victims of sex trafficking, even though the lessons from Craigslist’s exit made those assumptions dubious. Similarly, the early data from Backpage’s departure doesn’t look great for the sex trafficking advocates:

* AP: REALLY? SHUTTERING ONLINE BROTHEL COULD HURT LAW ENFORCEMENT
* NY Times: Backpage’s Sex Ads Are Gone. Child Trafficking? Hardly.
* Miami Herald: The ‘adult’ section might be closed but Miami sex workers still on the job

People v. Ferrer Case library:

* Defendant’s motion to enforce dismissal and alternative demurrer; prosecutors’ opposition.
* Complaint for the second set of felony criminal charges
* Trial court’s final ruling granting the demurrer. Blog post.
* California’s Supplemental Brief in Opposition to Defendants’ Demurrer to Felony Complaint and defendants’ response
* Trial court’s tentative ruling dismissing the charges
* Reply to the opposition to the demurrer
* California’s opposition to the demurrer
* Demurrer, statement of Lacey and Larkin, and letter to AG Harris
* Criminal Complaint
* Declaration in support of arrest warrant and warrant
* Press Release, Attorney General Kamala D. Harris Announces Criminal Charges Against Senior Corporate Officers of Backpage.com for Profiting from Prostitution and Arrest of Carl Ferrer, CEO
* Press Release, AG Paxton: Arrest of Backpage.com CEO Shows Texas Doesn’t Tolerate Human Trafficking
* My blog post: Some Comments on the CA/TX Attorneys’ General Prosecution of Backpage’s Executives