Understanding Online Sex Trafficking and the Communications Decency Act
In this digital age, sex trafficking of children and adults flourishes online. Why?
In large part because the law 47 USC 230 has been interpreted by federal and state courts to prevent victims of sex trafficking from suing these websites under either state or federal laws and to prevent States from enforcing criminal laws against websites that carry ads for sex trafficking.
Congress enacted the Communications Decency Act of 1996 (CDA) in the early days of the Internet and included provisions to protect children from online exposure to indecent content. In Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court struck down the Internet indecency provisions of the CDA but did not strike down the provisions that became 47 USC 230.
This law was enacted in response to two court cases: Cubby, Inc. v. CompuServe, Inc., and Stratton Oakmont, Inc. v. Prodigy Services Co. In the Cubby case, an online service provider was not penalized for libelous comments on its website because there was no evidence the website knew about the comments. But in Stratton, the online service provider was penalized for libelous comments on its website because it had attempted to screen out any illegal comments.
The import of these court decisions was clear: if an online service did little or nothing to curb defamatory content, it wouldn’t be held liable; if it tried to curb such content it could be liable.
In response to Stratton Oakmont, Representatives Chris Cox (R-CA) and Ron Wyden (D-OR) introduced an amendment to the CDA which became 47 USC 230. Subsection 230(c)(1) states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” What (c)(1) does not say is that no provider or user of an interactive computer service may be treated as a distributor of information provided by another, but that is how most courts interpreted it. For a good argument that 230(c)(1) was not intended to eliminate the difference between distributors and publishers, see Barrett v. Rosenthal, 114 Cal.App.4th 1379 (Cal. Ct. App. 2004).
Congress provided additional protection for providers and users of an interactive computer services in 230(c)(2)(A) by ensuring that no provider or user is held civilly liable on account of any action voluntarily taken in good faith to restrict access to or availability of objectionable material. The efforts of Prodigy when owned by IBM and Sears to make its service family friendly is a good place to begin to determine what is a good faith effort.
Furthermore, 230(c) is entitle “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material;” and Subsection (c) is part of a law (47 U.S.C. 230) which was intended to provide “Protection for private blocking and screening of offensive material.”
How then did a law intended to protect providers or users of interactive computer services who act voluntarily and in good faith to restrict access to or availability of objectionable material become a protection against civil liability for those who accept payment to carry ads for sex trafficking knowing or having reason to know the ads are for sex trafficking?
Surely this was not the intent of members of Congress who voted to add Section 230 to Title 47.
Subsection 230(e)(3) makes clear that States cannot in a civil action treat a provider or user of an interactive computer service as the publisher or speaker of information provided by another and cannot hold a provider or user civilly liable on account of action voluntarily taken in good faith to restrict access to or availability of objectionable material. But 230(e)(3) was not intended to prevent a State from criminally prosecuting a provider or user for facilitating sex trafficking.
In a letter to members of Congress dated August 16, 2017 and signed by Attorneys General from 48 states, the National Association of Attorneys General had this to say:
In 2013, Attorneys General from 49 states and territories wrote to Congress, informing it that some courts have interpreted the Communications Decency Act of 1996 (“CDA”) to render state and local authorities unable to take action against companies that actively profit from the promotion and facilitation of sex trafficking and crimes against children… The undersigned Attorneys General once again respectfully request. . . . Congress amend the CDA to affirm that state, territorial, and local authorities retain their traditional jurisdiction to investigate and prosecute those who facilitate illicit acts . . . .
. . . . Backpage.com is facilitating — and profiting from — these illegal activities. However, certain interpretations of the CDA have resulted in companies like Backpage.com remaining outside the reach of state and local law enforcement …We do not believe that was Congress’s intent in passing the CDA, and . . . do not believe that is Congress’s intent now. . . .
Federal enforcement alone has proved insufficient to stem the growth in online promotion of child sex trafficking. Those on the front lines of the battle against the sexual exploitation of children — state and local law enforcement — must have the clear authority to investigate and prosecute facilitators of these and other horrible crimes. . . .