Congressperson's Sex Trafficking Bill Looks To Carve Holes In Section 230 Immunity

from the first-they-came-for-the-worst-of-the-worst... dept

Law prof Eric Goldman -- who's covered numerous internet-related cases over the years -- is sounding the alarm about a draft bill [PDF] circulating Congress which could do some very serious damage to the internet itself. The bill aims to undercut Section 230 protections in the name of preventing sex trafficking.

The draft bill is called the “No Immunity for Sex Traffickers Online Act of 2017.” It’s authored by Rep. Ann Wagner (R-Mo.). The bill would amend Section 230 in two main ways:

1) it would add a new statement to Section 230’s purpose: “to ensure vigorous enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking of children, including through the availability of a civil remedy for victims of sex trafficking of children”

2) it would exclude the following claims from Section 230’s immunity:

– “any State criminal statute relating to sexual exploitation of children or sex trafficking of children” from the immunity

18 USC 1595, which has a civil remedy for sex trafficking

– “any other Federal or State law (to the extent such law does not impose criminal penalties) relating to sexual exploitation of children or sex trafficking of children”

As Goldman points out, Wagner's bill is clearly aimed at Backpage. If it ever makes its way into law, it will arrive far too late to wield it against Backpage and its owners, but it could be used to initiate prosecutions against other site owners for content posted by their users.

Maybe Rep. Wagner was just waiting for a like-minded legislator to come along and help push some bad ideas towards the president's desk. The recent arrival of former California attorney general Kamala Harris (a newly-elected Senator) should ensure lousy, internet-damaging bills aren't limited to the House. It's a chance to make earlier complaints become debilitating statutes. Goldman notes the bill not only duplicates Rep. Wagner's previous human trafficking law (which was passed), but echoes a "Let's Blame Backpage!" letter sent to Congress back in 2013.

[I]n 2013, 47 state AGs (including California’s then-AG and now-Senator Kamala Harris) sent a letter to Congress complaining that Section 230 prevented them from squashing Backpage and requesting that Congress amend Section 230 to exclude all “federal *and state* crimes.” Congress never responded to the letter–until now. Consistent with the AGs’ request, Rep. Wagner’s bill would open up Section 230 to state crimes, but only if the crimes relate “to sexual exploitation of children or sex trafficking of children”–a smaller universe than the AGs’ request to open up *all* state crimes.

The same idea -- a "narrow" exception to Section 230 immunity -- has been floated as a way to tackle the revenge porn problem. It's almost always easier to locate and serve/prosecute site owners than it is to go after those actually violating laws. The problem for most prosecutors (and plaintiffs) is they're prevented from doing so by Section 230 immunity. This is the way it should be. The target of prosecution/litigation should be the person causing the harm or breaking the law, not the person(s) easier to locate and punish.

What proposals like this do -- if they become law -- is create small fractures in Section 230 protections. These will eventually become actual holes as prosecutors, politicians, and courts carve out more and more exceptions as the activity they're trying to prevent moves to other platforms either to escape scrutiny or because site owners and service providers are unwilling to host anything that might see them being held responsible for users' content.

The strict liability rule might run into First Amendment concerns, but we won’t know that until the court challenge. As we know, if there’s not a single home for them, online prostitution ads migrate into other topics. So any classified ad or message board service–even those that are completely free–would need to prescreen most/all user postings to screen out the possibly-small percentage of those postings that violate the new law. The overall cost imposition on publishers, and associated chilling effect, attributable to the law would be huge.

The most serious problem Goldman sees -- and his reason for even bothering to discuss a draft bill -- is this is the sort of thing that could actually pass in the current political climate. The California AG who engaged in a personal vendetta against Backpage is now a US senator. The author of this bill is a Republican sitting in a Republican-controlled house. The bill targets child sex trafficking, which is of course the worst kind of sex trafficking. And who's going to stand up in the House or Senate and claim they're against preventing the trafficking of children for sex? Clearly no one wants to take that public stance, even if they know the bill would do harm to the First Amendment while having almost no effect on eliminating sex trafficking.

Then there's the internet service providers themselves. As Goldman notes, they weren't exactly rallying around Backpage as politicians and prosecutors used it for a punching bag and a useful analogue for everything that's wrong with the internet.

[I]t’s unclear that the major Internet companies will oppose the bill. They’ve frequently stayed on the sidelines during Backpage’s battles, content to let Backpage carry the water for everyone. With Backpage out of the industry, they no longer get the free ride. This draft bill will force a decision: acquiesce or fight. I don’t know what they will choose.

Small exceptions become huge problems. Mission creep, combined with most politicians' innate ability to make bad things even worse, means this proposed exception to Section 230 protections won't stay narrow and limited for long. Fortunately, the bill's a long way off from a president's signature. But the opposition to legislative ideas like this needs to remain loud and constant.


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  • identicon
    Anonymous Coward, 29 Mar 2017 @ 11:14am

    What proposals like this do -- if they become law -- is create small fractures in Section 230 protections

    Thes laws totally obliterate the purpose of section 230, which is you need not review user posts because you cannot be held liable. If you can be held liable for one post, then you have to review all posts, lest that one is posted to your site.

    reply to this | link to this | view in chronology ]

    • icon
      TKnarr (profile), 29 Mar 2017 @ 11:40am

      Re:

      Start fighting it by asking the prosecutors one pointed question: "Which ads have resulted in successful prosecutions where the providers were in fact under-age? Be specific please, I don't want just numbers I want to see the actual ads and to hear you state the ages of the minors involved.". Then let them fumble but keep them on-point: actual ads, not their guesses. And when they try to wiggle out with a plea that they need this law because they can't find the actual criminals, reply with "Then how do you propose to prove that the site was hosting child-trafficking posts if you admit you don't know and can't prove that the posts were trafficking minors? This isn't the Wild West where we tolerate vigilantes, you know, we expect crimes to be proven in court before we punish people for them.".

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Mar 2017 @ 11:56am

        Re: Re:

        But that costs money, is not guaranteed to work. My point is that you are either have the protection of section 230, or you have to gate keep all user posts before they are posted on the site. Any exception to that protection eliminates it usefulness, as it only takes one post to make you liable.

        As to the FBI etc., they are very good at giving people an opportunity to break the law, and could make such posts to trap those who do not do a good job of preventing illegal content.

        reply to this | link to this | view in chronology ]

        • icon
          TKnarr (profile), 29 Mar 2017 @ 2:24pm

          Re: Re: Re:

          This wouldn't be to the prosecutors when they come to enforce an order. It'd be to the supporters of this bill and the prosecutors when they testify to needing it in Congress when it's debated. Lay the groundwork for taking child trafficking out of the debate entirely by making them show that it actually exists on these platforms. My estimation is that they won't be able to respond because they won't have anything to show.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Mar 2017 @ 4:05am

        Re: Re:

        Well most of these cases are done as sting operations in response to ads or by backtracing a known under-age victim. So in a lot of cases they DO know the ad that was involved in the prosecution.

        The real question should be "here is a set of 1 million ads, which ones are related to child sex trafficking. PS you must identify with 100% accuracy or be subject to a lawsuit either from a legitimate business or from prosecutors under this law"

        reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 29 Mar 2017 @ 6:41pm

      Re:

      If the mere presence of child porn on a server is a strict liability offense for the owner of the server -- even if the owner is unaware that a third party put it there -- then you could use the law as a weapon against anyone you dislike.

      Just email them an encrypted illegal image and don't provide the key to them. Then give the feds an anonymous tip. The feds will easily crack the encryption an end user cannot, and discover the incriminating contraband.

      Strict liability then kicks in.

      A group like Anonymous could even (in theory) get all of Congress imprisoned by defacing Congressional websites in specific ways, given how strict liability laws work.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 29 Mar 2017 @ 11:42am

    "The End-Of-The-Internet" watch has been set to 11:58 p.m.

    All hail unidirectional broadcasting network (the new Internet).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2017 @ 11:52am

    If a website can be held liable for something one of its users did. Can the people who propose and vote for this bill be held liable for all the sex trafficking that is not caught as a result of various listings and contacts going even further underground?

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 29 Mar 2017 @ 12:17pm

    what GOOD WILL THIS DO?

    Been said many times by M<ANY people..

    1. What about news papers?
    2. Private News papers like the old days with ADULT CONTENT? thats only sent to specific people and handed 1to 1..
    3. personal ad's are ALL OVER the net, and if you know what to look for, and WHERE..

    WHY? WHY do this..all it will do is make them HIDE. change ways and locations, MORE. Newspapers Was/is/could be a way to STILL do this. WHy isnt he persecuting THEM?
    Why is EVERYTHING the NETS FAULT.

    Even in the old days, the newspaper was a way to Look for what was happening.. Those PRIVATE newspapers were hard to get and were DIRECT mailed or hand off's. Or hidden in Dating sections of the Paper..and ENCODED.. Even with the net its abit hard to find this stuff.

    Anyone notice that a FEW groups are wondering the net, with FAKE CHILDREN, going to chat groups and looking for Child molesters?? Think about it, and inserting FAKE data in Location LIKE backpage..
    Its one of the ONLY ways to find a THREAD of these people..

    Lets REVERSE this..
    What would happen if this passed, and it FORCED more people to go MORE underground and use MORE private services/programs to HIDE deeper.

    Hmm..This sounds more LIKE HE WANTS THEM TO go hide.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Mar 2017 @ 1:44pm

      Re: what GOOD WILL THIS DO?

      Something must be done. This is something. Therefore, we must do it.

      reply to this | link to this | view in chronology ]

    • icon
      Mike-2 Alpha (profile), 31 Mar 2017 @ 12:04am

      Re: what GOOD WILL THIS DO?

      This is the good that it will do:

      If the bill passes, then one of two things happens.

      The first possibility is that services like Backpage shut down in order to avoid the attendant penalties that would come with not being able to play Whac-A-Mole while blindfolded. If that happens, the legislators and prosecutors get to point to their great victory in shutting down such wretched hives of scum and villainy. Never mind that they just moved somewhere else.

      The second is that services like Backpage stay open, but scramble like mad in their attempts to police their ads. The responsibility for tracking down predators and human traffickers gets pushed off onto these private entities instead of resting on the shoulders of the prosecutors.

      As a result, the prosecutors aren't responsible if it doesn't work - clearly, the proprietors of Backpage and the like aren't working hard enough. And any time they need an easy win - say, around reelection time - they can charge one of these personal ad sites with not having done enough to do law enforcement's job for them.

      If it doesn't go through, on the other hand, then anyone who backed it gets to campaign for reelection on the premise that they tried to protect the children. If only their dastardly, decadent opposition hadn't stopped them. See, dear citizen? You need more people like them in office in order to protect your family.

      And responsibility for hunting down predators and human traffickers still comes off the shoulders of law enforcement. After all, they wanted to, but the government keeps tying their hands.

      How does this help abused children? Simple: it doesn't. This is about the legislators and prosecutors. The well-being of the children doesn't actually enter into it.

      reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 29 Mar 2017 @ 1:44pm

    "Narrow exception"????

    The only thing the government views as "narrow exceptions" are the rights of the people. Everything else is fair game...just look at how the narrow exceptions of the FOIA are being applied.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2017 @ 2:25pm

    I bet that the
    “No Immunity for Sex Traffickers Online Act of 2017.”
    excludes members of congress.

    Because why not? They routinely exclude themselves from the laws they approve. Notice I did not say laws that they write, because they do not write laws, they only rubber stamp what their overlords write for them to approve. - and we know there are some of them that are perverts.

    reply to this | link to this | view in chronology ]

  • identicon
    Professor Ronny, 29 Mar 2017 @ 3:07pm

    I'm not a lawyer. But if this passed, couldn't Backpage just move to Canada or Mexico and thumb their nose at Congress?

    reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 29 Mar 2017 @ 3:28pm

    And yet as a society overall, we very much oppose conscientious and thorough sex education at all, never mind during children's formative years when such a thing might do serious good for even things like this horribly misdirected sort of sexual attraction and practice.

    And heaven forbid LEOs use the information posted in these supposed ads for their investigative potential. (No, just shut everything down and let us spy on _everyone's_ private communications and their devices.)

    reply to this | link to this | view in chronology ]

  • identicon
    Median Wilfred, 29 Mar 2017 @ 7:45pm

    Missouri Legislators - The "Florida Man" of State Legislatures

    I believe that they've found the "Fountain of Stupid" in Missouri, and gotten all legislators (who were already card-carrying nitwits) to drink from it.

    On a more serious note, isn't stuff like this indicative that conservatives have just become rigid, dogmatic cultists? They'll sacrifice *anything* for the cause, because Conservatism Can't Fail, You Can Only Fail Conservatism, and It's not Right and Left, It's Right and Wrong. When you descend as far into dogmatism as Republicans have, you can't allow dissent or deviance.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 30 Mar 2017 @ 7:30am

      Re: Missouri Legislators - The "Florida Man" of State Legislatures

      At which point they fail to be conservative, which used to effectively mean "Designated driver."

      I'm conservative, by which I mean I stand for an orderly society that balances the demands and needs of the individual with the community, hence the Twofold Principle: The individual must be free to act and the will of the people must be respected. I believe in the rule of law and in upholding and promoting traditional values. I also believe in being personally and socially responsible, the value of altruism, the dignity of labour, and the necessity of a cautiously pragmatic approach to new or unusual situations.

      What you've actually got running the show at the moment isn't a bunch of conservatives, they're a motley crew of anarchic and authoritarian right wingers. This isn't even "apples or oranges," it's "chalk or cheese."

      reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 31 Mar 2017 @ 5:41am

        Re: Re: Missouri Legislators - The "Florida Man" of State Legislatures

        I recently came to an interesting realization about how the words "conservative" and "liberal" came to be applied to the political factions.

        If you look at historical usages of the word "liberal" outside of a political context, you run into usages like "he poured out the drinks with a liberal hand", where the intended meaning is clearly something like "generous" or "open-handed" or "unstinting" (or, for something less positive, the near-archaic "spendthrift").

        It's not hard to see how that description could have been applied to a political faction which could then have developed into today's "liberal" faction.

        And looking at it in that context, the label "conservative" for the opposing view makes perfect sense too; it reflects a perspective of "conserve your resources, don't spend them freely!". (I've had trouble finding single adjectives other than "conservative" to reflect this which don't sound derogatory; aside from things like "stingy" and "tight-fisted" and so forth, the only things I've come up with are "restrained" or "responsible".)

        At a glance, I think the viewpoint to which that version of the "conservative" label would apply seems like a fairly good match for the conservatism you're describing yourself as subscribing to.

        Unfortunately, much of that sense of the term - and the historical context which would make it seem appropriate and natural - has been lost in modern discourse...

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 4 Apr 2017 @ 2:31am

          Re: Re: Re: Missouri Legislators - The "Florida Man" of State Legislatures

          If only those who call themselves conservative actually were restrained and responsible! That shower in the GOP appear to be mainly anarchists, racists, religious authoritarians, and neocons. Selfish bullies. Is selfishness, bullying, and mocking labour a traditional community value? I think not!

          reply to this | link to this | view in chronology ]

  • icon
    Advocate (profile), 30 Mar 2017 @ 1:30pm

    When there's no sense in which sex traffickers have immunity, that pretty much sums up the validity of the act.

    reply to this | link to this | view in chronology ]


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