FOSTA-SESTA is now law. The legislation, a combination of the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA), makes websites liable for knowingly facilitating sex trafficking or intentionally promoting the prostitution of others (pimping).
Since its passage (and the closure of Backpage.com by federal authorities on charges not related to FOSTA-SESTA), according to ChildSafe.AI, one major market showed that sex buyer responses to ads on web-based platforms that promote prostitution and facilitate sex trafficking declined nearly 60% from February 2018 to March 2019. This translates into fewer people being bought and sold in the online prostitution market.
Passage of this landmark legislation constitutes the most significant legislative victory in the fight to end sex trafficking in nearly twenty years, and represents the culmination of years of advocacy led by NCOSE, survivors, NGO partners, and others against the kingpins of sex trafficking.
When we helped pass this legislation, known as FOSTA-SESTA, we were overjoyed!
Except, now, we’re battling big tech again.
Internet-based bulletin board-type advertising forums have contributed to an explosion in prostitution advertising and sex trafficking. The reasons why are twofold.
First, like any other “commodity,” the trading of people for sex operates on principles of supply and demand. Those who are bought and sold for sex constitute the “supply,” those who “distribute” the supply are sex traffickers (a.k.a. pimps), and those who make up the “demand” are the men who purchase people in the prostitution marketplace for their personal sexual use. Websites that accept prostitution advertising enable men who are looking to buy someone for sex to do so from the the privacy of their home, office, hotel room, or cell phone. It’s “prostitution shopping” made easy: like shopping for a used car, these websites make it possible for buyers to easily pick the “color, make, model” of those being offered as public sexual commodities, and to even post reviews regarding “customer satisfaction.”
Most notorious among websites serving as Internet-based, red-light districts was Backpage.com. Reports indicate at its height Backpage had 943 location sites on six continents, and operated in 97 countries and in 17 languages. Its business model was built almost entirely on the facilitation of prostitution and sex trafficking. 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.
Backpage’s success inspired copycat “entrepreneurs” who also wanted to get in on the online sex trade bonanza. Illustrating this point, law enforcement identified more than 130 websites offering people for sex in the Seattle area alone. One of those websites was averaging 34,000 ads a month in 2017. This demonstrates staggering demand for commercial sex acts. As demand outstrips supply, more and more women and children are sexually trafficked to meet that burgeoning demand.
Second, websites that serve as prostitution/sex trafficking hubs on the Internet were shielded from state law enforcement and civil prosecution due to a provision in the Communication Decency Act (CDA) known as Section 230. Congress passed the CDA in 1996 with the intent of protecting children from Internet pornography. Much of this law was later overturned by the Supreme Court, but Section 230 still stands. It gives civil immunity to interactive computer service providers who publish information posted by others.
There are some benefits to Section 230. It allows the free exchange of things and information. For instance, section 230 will protect a classifieds site from liability if a person sells you a broken bicycle. You can’t sue the website about the broken bike. You can only go after the person who sold it to you. However, with websites that provide prostitution advertising we move from the marketplace of things, to the trade in human beings.
Ironically, in a tragic series of court cases favoring Backpage, the courts interpreted the Section 230 of the CDA to give websites posting third-party content immunity for criminal activity facilitated via their sites and denied victims of sex trafficking the right to sue the companies that facilitated and profited from their exploitation. As stated in one court ruling, “[i]f and until Congress sees fit to amend the law, the broad reach of section 230 of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking.” Such egregious legal interpretations created a special, elite class of sex traffickers—those who provided the organizational superstructure on which most of modern sex trafficking occurs—who could operate with impunity because their operations were Internet-based.
Despite investigations by the U.S. Congress and several court cases, websites like Backpage.com continued to get away with their role in facilitating sex trafficking. For this reason the National Center on Sexual Exploitation (NCOSE), along with survivors and their families, anti-trafficking advocates, law enforcement officials, and concerned citizens called on the U.S. Congress to amend the CDA.
On February 27, 2018, the U.S. House of Representatives passed historic legislation known as FOSTA-SESTA by a vote of 388 to 25; on March 21, 2018, the Senate passed this same legislation by a vote of 97-2. The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA/H.R. 1865), was sponsored by Rep. Ann Wagner, and an amendment offered by Rep. Mimi Walters added in the language of the Stop Enabling Sex Traffickers Act (SESTA/S. 1693). SESTA, sponsored by Senators Portman, Blumenthal, and McCaskill, made the vital changes to the CDA that survivors of sex trafficking and advocates were seeking: the right to pursue civil rights of action is restored to sex trafficking victims and state Attorneys General are empowered to bring prosecutions against. Without the Walters amendment, these long sought-after changes to the CDA would not have passed since these provisions had been previously gutted from FOSTA by the House Judiciary Committee. FOSTA amends what is commonly known as the Mann Act to criminalize those who own, manage, or operate websites with the intent of promoting or facilitating the prostitution of others.
This was the most important anti-trafficking legislation in a generation and sends the strong message that people are not objects to be bought and sold online.
In the digital age, sex trafficking of children and adults flourishes online. Why? In large part because Section 230 of the Communications Decency Act (CDA) has been interpreted by federal and state courts to 1): prevent sex trafficking victims from suing websites that advertised them as for sale under either state or federal laws, and 2): 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 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.
47 USC 230 was enacted in response to two court cases. In Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), CompuServe’s motion for a summary judgment was granted because the court determined that CompuServe was a distributor and not a publisher of libelous comments posted on a “computerized database” and because it had not been shown that CompuServe knew or should have known of the libelous comments. In Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995), the court granted plaintiffs motion for partial summary judgement after determining that Prodigy was a publisher of libelous comments posted on its computer bulletin board because Prodigy had held itself out to the public and its members as controlling content and had implemented this control through its software screening program and “Guidelines” which “Board Leaders” were required to enforce.
The import of these court decisions was clear: if an online service did little or nothing to curb defamatory content, it would not 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, since such providers/users are not acting in good faith.
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. . . .
In 2017, two bills were introduced in Congress (S. 1693 and H.R. 1865) to amend 47 USC 230. While NCOSE has reservations about the language of these bills and hopes improvements will be made during the legislative process, we laud the bill’s sponsors and support their efforts.
Unfortunately, some in the technology community, including Google, are fighting any changes to Section 230–even if the changes would lead to a drastic reduction in online sex trafficking.
Google has blitzed congressional offices with this email asking your Senators and Representatives to oppose S. 1693 and H.R. 1865. For Google and other tech industry titans, corporate profits are more important than the lives of children and adults who are victims of online sex trafficking.
A coalition of groups headed by Consumer Watchdog recently released a report, entitled How Google’s Backing of Backpage Protects Child Sex Trafficking, which states in part, “An analysis of public records, tax documents and legal filings and other publicly-available documents shows Google has financed and supported a broad array of groups and individuals who have fought aggressively to thwart legal challenges to Backpage’s business model.”
Moreover, a Harvard professor alleges that Google earned over a billion dollars in revenue from unlawful advertising that Google failed to block, which included ads for child sex trafficking.
Reportedly, lobbyists for Google also helped eliminate a version of a bill that would have required firms to determine the age of people appearing in their online adult ads.
As if this isn’t bad enough, a recent news report now suggests that Internet companies are even seeking to incorporate language similar to Section 230 of the CDA into the North American Free Trade Agreement (NAFTA), which would extend the hedge of protection for websites that facilitate sex trafficking across the North American continent.
Backpage.com brings the seedy street corners of America’s red-light districts to home computers. A classified advertising website known as “the hub” for prostitution advertising, Backpage.com serves as a virtual auction block where sex buyers can shop for human beings for sex from the privacy of their home, office, hotel room, or cell phone. Many of those bought and sold via the website are sexually trafficked women and children. The website facilitates this activity by editing ads to conceal the illegality of underlying criminal activity.
For years, a quick scan of the “adult services” section on Backpage.com revealed dozens of pornographic photos used as advertisements promoting the buying and selling of women and children for sex in cities across the country. The National Center on Missing and Exploited Children has reported that 73% of all child sex trafficking cases its handled involved Backpage.com. With operations in 97 countries and 943 locations worldwide, Backpage is likely the largest facilitator of sex trafficking in the world.
Backpage has come under tough scrutiny from activists and law enforcement officials in the U.S. for serving as the platform for the open buying and selling of human beings for sex. One prominent example is this letter from 51 state Attorneys General (including Guam and American Samoa), explaining that many cases of sexual trafficking involving children are directly related to the posting of ads on Backpage.com.
In October 2016, as a result of a three-year investigation spearheaded by the California Attorney General’s office, authorities in Texas arrested Backpage.com CEO Carl Ferrer on felony charges of pimping a minor, pimping, and conspiracy to commit pimping. Controlling shareholders Michael Lacey and James Larkin were also charged with conspiracy to commit pimping. A judge later threw out the case, but in December 2016, California’s Attorney General announced new charges including 13 counts of pimping and conspiracy to commit pimping, and 26 counts of money laundering against the men.
The California Attorney General’s office reported that during the period of January 2013 to March 2015, 99% of Backpage’s worldwide income was directly attributable to its ads selling people for sex. With sites in cities around the world, Backpage ads in California alone are reported to have generated $2.5 million per month and more than $51 million during the 29-month period. Additionally, Ferrer created similar sites such as EvilEmpire.com and BigCity.com with related content to expand the company’s market share of the sexual exploitation industry.
Concurrently, Backpage.com has been under investigation by members of the U.S. Congress. During this process Backpage CEO Carl Ferrer refused to comply with a subpoena to appear before the U.S. Senate. As a result, Ferrer was issued the first civil contempt action authorized by the Senate in more than twenty years.
On January 9, 2017, Backpage.com “blocked” its prostitution advertising in America. Its prostitution advertising pages now greet visitors with the message: “The government has unconstitutionally censored this content.” This change occurred the night before Backpage CEO Carl Ferrer and founders, Michael Lacey and James Larkin, were scheduled to testify to the U.S. Senate’s Permanent Subcommittee on Homeland Security and Governmental Affairs in their investigation into sex trafficking occurring via their website. At the hearing, Backpage executives refused to testify.
The public should not fall for Backpage’s theatrical attempt to portray itself as the victim of government persecution or censorship. The only people under attack are those used as human fodder in Backpage’s gristmill of sexual exploitation. While Backpage likes to wrap itself in the First Amendment, free speech is not a license to orchestrate sexual exploitation. Moreover, the prostitution advertising occurring on Backpage.com simply migrated to other sections of the website.
On January 9, 2017, the U.S. Senate’s Permanent Subcommittee on Investigations issued its report entitled, “Backpage.com’s Knowing Facilitation of Online Sex Trafficking.” For nearly two years the Committee investigated Backpage’s involvement with sex trafficking, and found that, “The internal company documents obtained by the Subcommittee conclusively show that Backpage’s public defense is a fiction.”
Among the report’s finding is evidence that Backpage knowingly concealed evidence of criminality by systematically editing prostitution ads. Using a special filter, terms indicative of sexual exploitation, such as Lolita, teenage, rape, young, amber alert, little girl, teen, fresh, innocent, and school girl, were deleted from prostitution ads. The report also stated that the company was editing 70 to 80% of ads in the adult (i.e., prostitution) section.
Nevertheless, Backpage executives have thus far escaped criminal conviction and civil liabilities for their role in sex trafficking due to a provision in the Communication Decency Act (CDA) known as Section 230. Congress passed the CDA in 1996 with the intent of protecting children from Internet pornography. Much of this law was later overturned by the Supreme Court, but Section 230 still stands.
Several survivors of sex trafficking have pursued courts cases against Backpage.com for its role in facilitating their sexual exploitation, but their cases have been dismissed as courts have consistently misinterpreted the very plain meaning of Section 230. The actual, plain meaning of the CDA offers interactive computer service providers (ICSPs) (e.g., Backpage.com) a limited defense to civil suits not derived from criminal actions. However, the courts have consistently chosen to ignore the plain language of the CDA, misinterpret phrases they claim to be ambiguous, thereby offering ICSPs complete immunity from all criminal and civil liability.
The result is a lawless Internet. Crimes that are not permissible offline are allowed to flourish as long as they are facilitated via the Internet. People operating as pimps are allowed to continue their role as organizers of sexual exploitation as long as they do so behind the veil of an ICSP.
Therefore, we call on the U.S. Congress to take swift and strong action to amend the CDA so that ICSPs not acting in good faith no longer have de facto immunity for facilitating egregious sex exploitation on a global scale.
This is not a complete list of supporting organizations, however it shows the breadth and depth of groups speaking out about this need. We will try to update this regularly.
National District Attorneys Association;
National Association of Police Organizations;
Major Cities Chiefs Association;
Fraternal Order of Police;
National Organization for Victim Assistance;
National Association of Women Law Enforcement Executives (NAWLEE);
WIFLE Foundation Inc. (Women in Federal Law Enforcement);
National Center on Sexual Exploitation;
Shared Hope International;
Coalition Against Trafficking In Women;
Missouri Police Chiefs Association;
Missouri Attorney General Josh Hawley;
Missouri Association of Prosecuting Attorneys;
St. Louis Police Officers Association;
Airline Ambassadors International;
The Covering House;
Missouri Juvenile Justice Association;
Faith & Freedom Coalition;
Ethics and Religious Liberty Commission, Southern Baptist Convention;
Focus on the Family;
Coalition Against Trafficking and Exploitation-CATE;
Friends Committee on National Legislation;
Faith & Action in the Nation’s Capital;
Cornerstones of Care;
Louisiana Association of Chiefs of Police;
Center for Family and Human Rights (C-FAM);
Crisis Aid International;
Ambassador Swanee Hunt;
Concerned Women for America;
National Organization for Women;
Skagit County Coalition Against Trafficking;
Missouri Coalition Against Domestic and Sexual Violence;
Eastern NC Stop Human Trafficking Now;
Foundation for a Slavery Free World;
Church of Scientology;
She is Rising;
Innocents at Risk;
Artists for Human Rights;
Enough is Enough;
- How Google’s Backing of Backpage Protects Child Sex Trafficking [Consumer Watchdog Report]
- Backpage.com’s Knowing Facilitation of Online Sex Trafficking [Senate Report]
- I Am Jane Doe [Documentary]
- Joint Statement of Groups Supporting CDA Amendment
- Backpage Has Always Claimed It Doesn’t Control Sex-Related Ads. New Documents Show Otherwise
- War Over Backpage Moves to a New Battlefield
- Mother Who Found Daughter’s Pictures on Backpage Speaks Out
- Local Sex Trafficking Survivor Discusses Being Marketed and Sold Online
- 114 Arrested in Polk Undercover Human Trafficking Investigation [Craigslist, Backpage, and Social Media Sites]
- 104 Men Busted Trying to ‘Purchase Prostituted Children’: Cops
- 5 Creepy Things You Didn’t Know about Facebook
- UNBRANDED Investigation: Sex Trafficking in Missippi [Ads on Craigslist and Backpage]
- Las Vegas Man Used Craigslist to Lure Sex Trafficking Victims, Police Say
- Alabama Sex Trafficking Survivor Sues Backpage.com, Choice Hotels, Dothan Hotel Owner
- Whitefield Man Charged with Sex Trafficking [Craigslist]
- Woman’s Prostitution Nightmare Starts with Romance, Backpage Ad
- Global Sex Trafficking Ring Busted in One of America’s ‘Happiest,’ ‘Safest’ Cities
- New Study Shows Homeless Youth Targets for Sex Traffickers [some sold on Backpage]
- Prostitution Busts Stem from Website
Contact U.S. Senate
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Free speech is not a license to facilitate or commit criminal acts. Historically we’ve seen this affirmed by the courts over and over again, for example in cases of blackmail (e.g., “Pay me $5,000 or I’ll burn your house down) or defamation (i.e., laws which protect people from untrue claims). In other words, freedom of speech is not an absolute right, but like other liberties is constrained from on infringing on the safety and well-being of the general public (e.g., yelling “Fire!” in a public venue when there is no fire).
The status quo is unacceptable. Tragically, US federal courts have actually interpreted the CDA to give sweeping immunity to Backpage.com, a website with a business model built on sexual exploitation and sex trafficking. Web-based businesses have an ethical responsibility to ensure they operate within the confines of the law. Similar to a brick and mortar store owner that knowingly allows sex trafficking to occur on its premises, websites that knowingly (or with reckless disregard) facilitate sex trafficking and prostitution cannot be given broad immunity that absolves them from any responsibility. Websites that conduct due diligence to keep sexual exploitation off of their platforms will not be threatened by an amendment to the CDA, any more than a store owner operating in good conscience will be threatened by laws against illegal business practices.
Further, it’s important to note that websites are companies or owned-platforms that do not shoulder a burden to display every post or form of speech. Websites all around the world constantly make editorial decisions about what kind of content they want on their site—and they are not guilty of “censoring free speech” when they remove unwanted content from their platforms.
This is a specious argument because Internet companies are in the advertising/data mining business. Thus, constant and meticulous monitoring of third-party content is actually their business model.
Additionally, the technology industry has made dramatic innovations in the past several years in the application of algorithms, blocking, and filtering. While some large platforms may not be able to monitor every third-party post, they can institute algorithms, filtering, and moderation practices that will catch a large portion of content facilitating sex trafficking. They can also improve by responding quickly and effectively to any reports of suspected commercial sexual exploitation on their site. Such efforts are the markers of corporations acting in “good faith.” The safe harbor accorded to websites which “filter in good faith” will remain and be protective of content-neutral sites. The proposed amendments to the Communications Decency Act specifically target bad actors who are engaged in the crime of sex trafficking.