Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)

By guest blogger Alex Levy

[Eric’s introduction: Human trafficking expert Alex Levy is back, and this time, she busts some myths about the Stop Enabling Sex Traffickers Act of 2017 (“SESTA”). Like my post this morning, her post was written before last week’s Senate hearing, and some of the intervening developments and articles have partially impacted the post’s points. Still, I thought it would be helpful to have Alex’s thoughts all in one place.]

Myth #1: Without SESTA, Backpage (and similar websites) can enable human trafficking without any legal repercussions.

This is false under the black-letter law. 47 U.S.C. 230(e)(1) states:

Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

This provision make clear that bad actors can be prosecuted under Federal criminal law, and it specifically emphasizes that Section 230 cannot stand in the way of Federal prosecutions relating to the sexual exploitation of children. In other words, Congress went out of its way to show that Section 230 was not at odds with the overall goal of protecting children. Then, two years ago, Congress amended the Federal human trafficking statute to add penalties for knowingly advertising trafficked sex in the 2015 SAVE Act. To summarize: nothing about Section 230 stands in the way of criminal enforcement of any Federal statute, especially statutes relating to sexual exploitation of children.

Myth #2: The First Circuit’s 2016 Ruling in Doe v. Backpage lets Backpage get away with sex trafficking.

SESTA’s advocates often point to a recent First Circuit case, Doe v. Backpage.com, 817 F.3d 12 (1st Cir. 2016), in support of their claim that Backpage operates in some kind of legal loophole. But that interpretation misconstrues both the case and the statute. The Doe plaintiffs sought money damages from Backpage for harms they suffered as a result of ads that their traffickers had created and published on the website. Though Backpage couldn’t be held civilly liable as publisher of those ads, the court made clear that if Backpage had directly participated in sex trafficking, Section 230 would not shield it from liability. The reason the court dismissed the case was because the plaintiffs’ facts simply didn’t show that to be true. In the court’s words, “[t]hough a website conceivably might display a degree of involvement sufficient to render its operator both a publisher and a participant in a sex trafficking venture…the facts pleaded in the second amended complaint do not appear to achieve this duality.” (17-18).

Moreover, the limitation on Backpage as a publisher doesn’t apply to Federal criminal prosecutions. The fact that the Federal government can prosecute Backpage is written into the law (and is not in dispute). The issue presented in Doe v. Backpage was whether Backpage could be held accountable by civil litigants for its actions as a publisher. But Federal criminal prosecutors can hold it to account for material it publishes, but does not create — and both civil and criminal parties can hold it to account if it directly participates in sex trafficking. Backpage’s immunity to suit ends where its own speech begins — and even this immunity is limited to civil suits.

Myth #3: SESTA’s carveout to Section 230 would not broadly affect free speech on the Internet.

SESTA’s effects would not be limited to just Backpage, nor to websites that allow paid advertisements. Indeed, SESTA’s proposed alterations to Section 230 would open any website that allows users to post anything – comments, questions, thoughts, ads, pictures, reviews – to liability for sex trafficking.

SESTA’s supporters seem to think that its effects can be limited to “bad actors,” and that the additional liability it creates will be borne only by guilty parties. But that’s not how liability works, and it’s certainly not how SESTA would bear out. In fact, SESTA would affect every website that relies on Section 230 protections – websites ranging from Facebook to www.maestronet.com to www.discoveringlabradoodles.com.

Consider the following scenario. Imagine that a trafficker decides to post an ad for his victim’s sexual services online. Bored with the usual websites, he decides to hijack the comments section of his favorite knitting blog, and posts an ad there. Another knitting aficionado sees the ad and accepts the trafficker’s offer, eventually raping the victim. Following her recovery, the victim sues the knitting forum.

Under Section 230, the lawsuit would be dismissed: the knitting forum merely allowed the trafficker to post the ad, and, in so doing, it was not responsible for her exploitation. This makes intuitive sense from the standpoint of accountability. Besides being fundamentally unfair, if the lawsuit were allowed to go forward, knitting forums everywhere would shut down, for fear of what random criminals might post.

But with SESTA in place, this lawsuit could at the very least survive an initial motion to dismiss. The forum engaged in “knowing conduct” when it allowed the trafficker to post – no matter that the conduct was simply to act as a publisher. The knowledge requirement under SESTA is extremely unclear — does the forum need to have actual knowledge that the poster was engaged in trafficking? Under what circumstances can it be said that a forum should have known about posters’ actions? Arguably, just the fact that the forum knew it was allowing a user to post – without knowing about the trafficking — would suffice to allow recovery. The knitting forum – just like all user forums, not to mention most social networks, blogs, and restaurant review websites – could potentially be on the hook for millions of dollars of damages without Section 230’s protections.

The fact that a website is actually not guilty doesn’t mean that it won’t bear the cost of the additional liability imposed by SESTA. SESTA exposes all websites to liability – not just “bad actors.” As a result, it would affect all speech.

Myth #4: Shutting down Backpage would be good for trafficking victims.

To the exact same extent as Backpage acts as a channel for traffickers, it also acts as a point of connection between victims and law enforcement, family, good samaritans, and NGOs. Countless news reports and court documents bear out this connection. A quick perusal of news stories shows that last month, a mother found and recovered her daughter thanks to information in an ad on Backpage; a brother found his sister the same way; and a family alerted police to a missing girl on Backpage, leading to her recovery. As I have written elsewhere, NGOs routinely comb the website to find victims. Nicholas Kristof of the New York Times famously “pulled out [his] laptop, opened up Backpage and quickly found seminude advertisements for [a victim], who turned out to be in a hotel room with an armed pimp,” all from the victim’s family’s living room. He emailed the link to law enforcement, which staged a raid and recovered the victim.

Many people ask: wouldn’t shutting down Backpage make trafficking harder overall (and thus reduce it)? The answer is, perhaps unsatisfyingly, we have no reason to think so. All Backpage is is a channel — like a phone line or a sidewalk, it can be used for good and for bad. The only sure way to make sure it does more good than harm is to empower and encourage advocates to put it to good use — to keep reaching out to loved ones, vulnerable individuals, and missing people; to continue to apprehend criminals and would-be exploiters. Figuring out how to navigate this terrain is hard work, as all true advocacy is. SESTA, on the other hand, is a blunt approach. It might be satisfying to shut down a space in which ugly things are revealed. But doing so would be a mistake, especially when it’s a space that often serves as a lifeline between victims and recovery.

SESTA-Related Links:

* Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
* Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
* How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them)
* Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
* Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
* The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
* WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
* The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity