Pending Senate Vote on CDA a Critical Test of Movement’s Power
While it may feel like old news now, the revelations about sexual harassment and abuse perpetrated against dozens of women by Harvey Weinstein have had important and far-reaching ripple effects. Suddenly, an ocean of women’s narratives about sexual injustice and abuse long held back by walls of apathy, power, and collusion seemed to give way to powerful collective shouts of #MeToo. The ensuing tidal waves of remonstration toppled a long list of media and political elites from their perches of power; protests were staged; TV shows born; task forces launched; and corporate policy shifted.
Yet, this is a fragile hope and a test of its survival currently faces the U.S. Senate.
If there is a single legislative test of the strength of our national resolve to deliver on the promise of #MeToo, then surely it is the battle over passage of the much needed FOSTA-SESTA legislative package that would amend the Communications Decency Act to fight online sex trafficking.
With such a virtuous sounding name, some may wonder what the Communications Decency Act (CDA) has to do with sexual exploitation and trafficking. The answer is, quite a lot.
In 1996, when the Internet had yet to dominate our daily existence, Congress was already wrestling with concerns that the Internet would become a major vehicle for making obscene material easily accessible to children. At the time, Nebraska Senator Jim Exon, who introduced the bill, said “the information superhighway should not become a red-light district.” A concern that, given today’s XXX Internet bonanza, was undoubtedly prescient.
So, like the responsible individuals we elected them to be, Congress passed the CDA in an attempt to preserve the wellbeing of the nation’s children, and indeed, the common decency of its adults. But as anyone alive today can attest, we’re swimming neck deep in Internet pornography swill and websites offering people for sex are legion. Clearly something has gone terribly amiss.
That’s where the ACLU v Reno comes in, the Supreme Court case which in 1997 struck down the entirety of CDA — all, that is, except for a provision known as Section 230. Herein lies the current challenge before the U.S. Senate and our country.
It is this provision, Section 230 of the CDA, which protects websites hosting third-party content from lawsuits based on the actions of those third-parties. This was and continues to be an important provision of the CDA. For instance, if Bob sells Taisha a stolen vehicle via a classified advertising website, Taisha can’t sue the website for damages. Importantly, the website wasn’t acting in bad faith by hosting the ad, because it couldn’t know that Bob was selling stolen property.
But, what if the website owners and operators themselves see a way to profit from criminal activity? What if they aren’t benign actors, but actually construct business models that facilitate criminal activity, enabling them to get rich in the process? What if that activity involves promoting prostitution and facilitating sex trafficking of women and children?
Today, this is not a “what if” scenario. For thousands of victims in the U.S. and beyond, sexual exploitation via classified advertising websites is a nightmare lived.
The most infamous of these websites is Backpage.com. The men at its helm, Carl Ferrer, James Larkin, and Michael Lacey, represent a corporate class of sex traffickers who sit at the apex of the global supply chain of sexual exploitation.
As a “business” that helps arrange prostitution transactions and derives earnings from them, there can be no doubt that Backpage, and ergo its executives and owners, are the functional equivalents of sex traffickers (i.e. pimps in common parlance). Illustrating this point, from the period of January 2013 to March 2015, 99% of Backpage’s global revenue was attributable to prostitution advertising. During this same period, Backpage made nearly $51 million in revenue from prostitution ads in California alone.
Low level sex traffickers who post ads on websites for the purpose of marketing the women and girls they monger may easily be arrested and prosecuted. But that’s not so for Ferrer and company. Apparently stronger than Teflon, the 1st Circuit Court of Appeals has ruled that Section 230 of the CDA shields Backpage’s activities even if they knowingly facilitate sex trafficking.
Inspired by Backpage’s success, others have flocked to the Internet to start up their own prostitution advertising platforms. Thus, the Internet now hosts a thriving and ever expanding virtual, open marketplace for the marketing and purchase of human beings for sex.
Which brings us back to #MeToo. If there was ever a time to for our country to say we value women and children too much to see them traded like public sexual commodities on the Internet, surely this is the moment.
The U.S. Senate could do just that by passing the legislative package known as FOSTA-SESTA, which last month was passed by the U.S. House of Representatives 388 to 25. The underlying bill, the Enable States and Victims to Fight Online Sex Trafficking Act (FOSTA), was sponsored by Rep. Ann Wagner. An amendment offered by Rep. Mimi Walters added in the provisions of the Stop Enabling Sex Traffickers Act (SESTA), sponsored by Sens. Rob Portman and Richard Blumenthal. This legislation restores civil rights of action to victims of sex trafficking and empowers states Attorneys General to prosecute the corporate kings of sex trafficking.
I wish I could say that without a shadow of a doubt that the Senate will pass FOSTA-SESTA. Tragically, that is not the case. FOSTA-SESTA has powerful opponents. Those opponents generally fall into three camps: 1) those who see the sex trade as just another business sector, 2) those who believe that any amendment to the CDA whatsoever imperils the technology sector, and 3) those who claim that amending the CDA fatally wounds freedom of speech.
These are specious arguments.
People are not products to be sold online. The lives of women and children are not a sacrifice to make on the altar of corporate self-interest. The victims of sex trafficking need more free speech, not less.
Members of the U.S. Senate this is your moment to decide: does the spirit of #MeToo that has swept our country include victims of the sexual exploitation and sex trafficking or not.