In Deal To Get Loretta Lynch Confirmed As Attorney General, Senate Agrees To Undermine Free Speech On The Internet

from the to-save-victims,-we-must-destroy-the-innocent dept

Two versions of bills aimed at sex trafficking are being kicked around by legislators. The SAVE Act (Stop Advertising Victims of Exploitation) passed out of the House last year. The Senate version -- the much-less-acronymically-catchy JVTA (Justice for Victims of Trafficking Act) is looking to be no better than the House's version, thanks to a last-minute proposed amendment from Senator Mark Kirk, who's been dying to kill off Backpages.com's adult advertising for quite some time now. And Kirk was able to get this terrible amendment added as part of the "Senate deal" to finally confirm Loretta Lynch as our new Attorney General.

Unfortunately, part of the deal to move the bill forward appears to include a version of the SAVE Act which will amend existing federal anti-trafficking law in vague ways that will be used to prosecute online content hosts for third-party content. This bill, Amendment 273 to the JVTA, closely parallels a version of the SAVE Act that passed the House in January.
As can be clearly seen by the House bill's title, advertising is being targeted. Kirk's amendment adds "advertising" to the list of forbidden activities, which obviously will have repercussions for website owners should this pass with the amendment attached. It would effectively wipe out Section 230 for many websites, if any content on their sites is seen as "advertising sex trafficking."

Obviously, no one here is supporting "sex trafficking," but the focus should be on going after the actual people engaged in sex trafficking -- not allowing criminal charges to be placed against any website that didn't magically block someone putting up such ads. In an age of user generated content, such "advertising" content could potentially show up anywhere -- and any website operator who doesn't magically find and delete all of it faces criminal charges (that our incoming Attorney General can then use to go after them).

This would put website owners in the line of fire, should they fail to immediately delete advertising that falls under the purview of this law. ISPs, search engines and carriers are exempted from the SAVE Act, but site owners are not. Not only that, but if more of the SAVE Act gets folded into the JVTA, site owners will be given the burden of acquiring proof that every affected ad only pertains to adults over the age of 18. Failure to do so could result in a five-year prison sentence.

In a perfect world, illegal ads would be easy to spot. But it isn't a perfect world and those advertising illicit services are highly unlikely to hand over the information site owners need to have on hand to avoid being held responsible for third-party postings. It's a quick evisceration of Section 230 protections being performed by a very broad blade.

The bill's sponsors are more than happy to admit they're trying to attack Backpages and Craigslist. This is questionable enough, but they're apparently unconcerned if other site owners -- ones who don't specialize in advertising -- get caught in the crossfire.
This vagueness and the resulting uncertainty it brings for hosts of third-party content will create a chilling effect on hosts’ willingness to allow users to upload content to their platforms. The specter of facing federal criminal trafficking charges over content created by someone else will make content hosts extremely wary and will encourage over-blocking of wholly lawful, constitutionally protected speech.
Worse -- at least from the perspective of trying to eliminate trafficking ads -- the wording of the bill suggests the best way for site owners to win is not to play.
One thing is clear: by creating a situation where a host is vulnerable to liability if it has knowledge of trafficking-related content on its servers, Amendment 273 will actually discourage proactive filtering and screening mechanisms that many platforms currently employ.
If this appears to be the safest route for site owners to take, this law will result in more trafficking ads, rather than less.

Even further on this point, right now, sites like Craigslist and Backpages are great tools for law enforcement to find and track down actual sex traffickers. Putting the liability on them to stop the advertisements or face criminal charges doesn't stop the sex trafficking at all, it just makes it that much harder for law enforcement to find it. Does Senator Kirk really want to go down as the Senator who made it more difficult for law enforcement to find and arrest sex traffickers?

This language also suggests a certain amount of laziness on the part of those pushing the bills, as well as those charged with enforcing it. It's a whole lot easier to track down site owners and punish them than it is to find out who's behind the posting of illicit ads. By dumping the burden of proof -- as well as a certain amount of liability -- on site owners, law enforcement agencies will be encouraged to harvest the low-hanging fruit first. And while they do, those touting these laws will praise their efforts, despite the paucity of actual traffickers arrested or indicted.

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Filed Under: free speech, intermediary liability, liability, loretta lynch, mark kirk, save act, section 230, sex trafficking
Companies: backpages, craigslist


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  1. identicon
    David, 24 Apr 2015 @ 12:17pm

    A new way to attack speech/sites you don't like

    Forget abusing the DCMA. Just post an "ad" in the comments section and call the cops. The fact that you placed the ad isn't relevant, that the ad isn't immediately deleted is.

    Could you effectively shut down YouTube, by just posting comments or videos? Or how about Facebook? Just create a page or account with enough suggestible content. Or twitter? Advertise away and you can take out almost anyone.

    Who do you want to silence?

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