Congressional Hearings
S. 1693, THE STOP ENABLING SEX TRAFFICKERS ACT OF 2017
Congressional Hearings
SuDoc ClassNumber: Y 4.C 73/7
Congress: Senate
CHRG-115shrg36159
| AUTHORITYID | CHAMBER | TYPE | COMMITTEENAME |
|---|---|---|---|
| sscm00 | S | S | Committee on Commerce, Science, and Transportation |
[Senate Hearing 115-590]
[From the U.S. Government Publishing Office]
S. Hrg. 115-590
S. 1693, THE STOP ENABLING SEX
TRAFFICKERS ACT OF 2017
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 19, 2017
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
36-159 PDF WASHINGTON : 2019
-----------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).E-mail,
gpo@custhelp.com.
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
DEAN HELLER, Nevada CORY BOOKER, New Jersey
JAMES INHOFE, Oklahoma TOM UDALL, New Mexico
MIKE LEE, Utah GARY PETERS, Michigan
RON JOHNSON, Wisconsin TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois
CORY GARDNER, Colorado MAGGIE HASSAN, New Hampshire
TODD YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Renae Black, Senior Counsel
C O N T E N T S
----------
Page
Hearing held on September 19, 2017............................... 1
Statement of Senator Thune....................................... 1
Prepared statement of Hon. John McCain, U.S. Senator from
Arizona.................................................... 3
Statement of Senator Nelson...................................... 4
Statement of Senator Blumenthal.................................. 8
Statement of Senator Blunt....................................... 38
Statement of Senator Duckworth................................... 39
Statement of Senator Schatz...................................... 41
Statement of Senator Hassan...................................... 43
Statement of Senator Booker...................................... 45
Statement of Senator Cortez Masto................................ 47
Statement of Senator Cantwell.................................... 49
Statement of Senator Young....................................... 52
Statement of Senator Markey...................................... 54
Statement of Senator Sullivan.................................... 56
Report entitled, ``Labor and Sex Trafficking Among Homeless
Youth'' by Laura T. Murphy, Anchorage, Alaska.............. 57
Report entitled, ``Labor and Sex Trafficking Among Homeless
Youth--A Ten-City Study, Executive Summary'' by Laura T.
Murphy..................................................... 65
Witnesses
Hon. Rob Portman, U.S. Senator from Ohio......................... 5
Hon. Ron Wyden, U.S. Senator from Oregon......................... 9
Yvonne Ambrose, Mother of Desiree Robinson....................... 12
Hon. Xavier Becerra, Attorney General, State of California....... 14
Prepared statement........................................... 15
Eric Goldman, Professor, Santa Clara University of Law........... 18
Prepared statement........................................... 20
Yiota G. Souras, Senior Vice President and General Counsel, The
National Center for Missing and Exploited Children............. 25
Prepared statement........................................... 27
Abigail Slater, General Counsel, Internet Association............ 30
Prepared statement........................................... 32
Appendix
Nicole S., Mother of a Child Sex Trafficking Victim, prepared
statement...................................................... 77
Love146, prepared statement...................................... 78
Letter dated July 27, 2017 to Hon. Richard Blumenthal from
William J. Johnson, Esq., Executive Director, National
Association of Police Organizations, Inc....................... 79
Letter dated August 1, 2017 to Senator Portman and Senator
Blumenthal from Shared Hope International; PROTECT;
Rights4Girls; National Children's Alliance; 50 Eggs Films;
Exodus Cry; and Coalition Against Trafficking in Women (CATW).. 80
Letter dated August 16, 2017 to Hon. Roger Wicker, Hon. Brian
Schatz, Hon. Marsha Blackburn and Hon. Michael Doyle from
Attorneys Generals from 49 states and territories.............. 81
Letter dated August 30 2017 to Senators Portman, Blumenthal and
McCaskill from Andy Florance, CEO, CoStar Group, Inc........... 84
Letter dated September 5, 2017 to Hon. Rob Portman and Hon.
Richard Blumenthal from Kenneth Glueck, Senior Vice President,
Office of the CEO, Oracle...................................... 84
Letter dated September 14, 2017 to Hon. Rob Portman and Hon.
Richard Blumenthal from Tresa E. Zielinski, DNP, RN, APN-NP,
CPNP-PC, President, National Association of Pediatric Nurse
Practitioners.................................................. 85
Letter dated September 15, 2017 to Hon. Richard Blumenthal from
Brian K. Sibley, Sr., Senior Assistant State's Attorney, New
Haven State's Attorney's Office................................ 86
Letter dated September 18, 2017 to Hon. Richard Blumenthal from
Vanessa Sinders, Senior Vice President, American Hotel &
Lodging Association............................................ 87
Letter dated September 18, 2017 to Hon. Rob Portman from Nathan
Diament, Executive Director; and Jerry Wolasky, Chairman,
Advocacy; Union of Orthodox Jewish Congregations of America.... 88
Letter dated September 18, 2017 to Hon. Rob Portman and Hon.
Richard Blumenthal from John F. Schultz, Executive Vice
President, General Counsel and Corporate Secretary, Hewlett
Packard Enterprise............................................. 88
Letter dated September 18, 2017 to Hon. Rob Portman and Hon.
Richard Blumenthal from Richard M. Bates, Senior Vice
President, Government Relations, The Walt Disney Company....... 89
Letter of support dated September 18, 2017 to Hon. John Thune and
Hon. Bill Nelson from an alliance of survivors of sex
traffickers and commercial sexual exploitation................. 89
Response to written questions submitted by Hon. Catherine Cortez
Masto to:
Abigail Slater............................................... 93
Eric Goldman................................................. 93
Hon. Xavier Becerra.......................................... 94
Yiota G. Souras.............................................. 95
S. 1693, THE STOP ENABLING SEX TRAFFICKERS ACT OF 2017
----------
TUESDAY, SEPTEMBER 19, 2017
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:30 a.m. in
room SR-253, Russell Senate Office Building, Hon. John Thune,
Chairman of the Committee, presiding.
Present: Senators Thune [presiding], Nelson, Schatz,
Wicker, Cantwell, Blunt, Cortez Masto, Inhofe, Klobuchar, Lee,
Blumenthal, Cruz, Markey, Fischer, Booker, Udall, Sullivan,
Heller, Peters, Gardner, Duckworth, Young, Hassan, Capito, and
Johnson.
OPENING STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
The Chairman. Good morning. Thank you for joining us today
for our hearing on S. 1693, the Stop Enabling Sex Traffickers
Act of 2017, our second Committee hearing on human trafficking
this year.
I'm particularly thankful that we will have the benefit of
hearing from Yvonne Ambrose, who very courageously will share
her heartbreaking family story with us.
We'll also hear from Senators Portman, Blumenthal, and
Wyden, who will offer their perspectives about the current
state of the law and the proposed changes.
We'll then have the opportunity to hear from our panel of
expert witnesses, who will share their views on this
legislation, which has garnered significant support, but also
raised some questions.
Last month, Senators Portman and Blumenthal introduced the
Stop Enabling Sex Traffickers Act of 2017 with a bipartisan
group of more than 20 cosponsors, a number that has grown since
then, and which includes eight members of this Committee.
As many already know, this bill would amend Section 230 of
the Communications Decency Act to enable victims, as well as
State and Federal law enforcement to bring to justice websites
that knowingly facilitate sex trafficking.
Sex trafficking is an evil that affects every community
across America. I think everyone agrees that more must be done
to address this horrendous problem. That's why the conversation
that we're having today is so important.
As I mentioned, earlier this year, this Committee held a
hearing to examine ways that our Nation's transportation
providers and supply chains can fight the growth of sex
trafficking in the United States and slave labor in the global
economy. That same week, Senators Klobuchar, Nelson, and I
introduced two bills to address human trafficking prevention
and enforcement in transportation. I am proud that both bills
passed the full Senate last week, and I'm hopeful that the
House of Representatives will act soon to send these bills to
the President's desk.
There is, however, more that can be done. And that brings
us to the legislation before us today. I want to be clear: the
website Backpage.com has been the impetus for much of the
discussion around Section 230, and nearly everyone agrees that
the website should be held accountable. But this is not the
``Anti-Backpage.com Act of 2017.'' This legislation is intended
to address a larger problem, not a specific website.
Backpage may have suspended its ``adult services'' section
amid pressure from the Senate Permanent Subcommittee on
Investigations, but what about the next online haven for such
activity?
At the same time, some argue that because we frequently
know exactly where this sort of activity is taking place
online, that law enforcement can better monitor it and fight
it. Such observers caution that if our legislative solution is
too broad, it could have the opposite of its intended effect.
Given this challenge, I believe the cooperation of the tech
industry will be critical to any effective solution this
Committee and our Senate colleagues might hope to forge. There
are many positive stories to be told about how Internet
companies work with law enforcement and victim's rights
organizations to fight sex trafficking, but I believe that
these companies, like the rest of us, have an obligation to do
more.
I look forward to hearing more from Ms. Abigail Slater, who
is here today representing the Internet Association, and who
will tell us more about the specific work the association's
member companies do, and will do, to fight those who would use
their platforms for evil.
We will also hear from California Attorney General Becerra,
who will offer testimony from his perspective as the chief law
enforcement officer of the State of California. Attorney
General Becerra is currently prosecuting a case against
Backpage.com, and can offer insight into the legal history of
such cases. He can also speak to the recent request by 50 state
and territorial attorneys general to be allowed to enforce
their respective criminal laws pertaining to sex trafficking in
this arena.
Ms. Souras is here today representing the National Center
for Missing and Exploited Children, which serves as the
national clearinghouse for reports relating to child sex
trafficking, and as the coordinator of the national response to
problems relating to missing and exploited children.
Finally, Mr. Goldman is a law professor at the Santa Clara
University School of Law, who has devoted much of his
professional life to analyzing laws and their impact on the
Internet, and will be able to speak about the potential legal
consequences of the proposed changes contemplated by this
legislation.
I want to thank all of you for being here and for the
advocacy and work that you're engaged in. These are issues that
are often difficult to discuss, but I believe that this
Committee provides an appropriate venue for serious
consideration of difficult matters, and I appreciate your
participation in our discussion.
Finally, before I turn to Ranking Member Nelson for his
opening statement, I just want to acknowledge that our
colleague Senator McCain had also hoped to join us today, given
his long leadership on efforts to combat human trafficking, but
he had an unavoidable conflict at the Armed Services Committee,
which he chairs. Without objection, Senator McCain's statement
will be included in the record.
[The information referred to follows:]
Prepared Statement of Hon. John McCain, U.S. Senator From Arizona
I would like to thank Chairman Thune and Ranking Member Nelson for
allowing this hearing to take place today and all my colleagues for
their bipartisan support in standing up against human trafficking. I
would also like to thank Senator Portman not only for his leadership on
this important issue, but also for defending the vital role of Congress
in addressing the victimization and exploitation of children through
human trafficking.
Congress has a duty to defend the Constitution of the United States
and to uphold the principles for which it stands. We also have a duty
to eliminate all forms of modern-day slavery and human trafficking.
These are appalling crimes that target the most vulnerable individuals
in our society and undermine human dignity and the most basic of human
rights. Sadly, the problem of trafficking is far more severe than most
people realize as it is understated in law enforcement data. I commend
the Committee for its leadership in proceeding with a hearing on the
Stop Enabling Sex Traffickers Act of 2017.
The National Center for Missing and Exploited Children (NCMEC)
recorded an 846 percent increase in reports of suspected child sex
trafficking from 2010-2015, a spike the organization found to be
``directly correlated to the increased use of the Internet to sell
children for sex.'' We are dealing with a $150 billion illicit industry
in the United States, one in which few perpetrators face appropriate
punishment. According to attorneys general and judges across the
country, it will take an act of Congress for victims to obtain justice
for the crimes committed by sites like Backpage.com, which facilitate
child exploitation with impunity due to the immunity Internet service
providers (ISP) receive from Section 230 of the Communications Decency
Act.
Last month, the Superior Court of Sacramento County granted a
motion to dismiss pimping charges against Backpage.com in the The
People of the State of California vs. Carl Ferrer, Michael Lacey, and
James Larkin. Superior Court Judge Lawrence Brown dismissed these
charges against Backpage.com executives Carl Ferrer and Michael Lacey,
explaining that ``If and until Congress sees fit to amend the immunity
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.'' It is clear that until Congress acts, we will
continue to hear horrifying stories of children being bought and sold
for sexual abuse on websites like Backpage.com.
I would like to thank Yvonne Ambrose for her courageous testimony.
Her family's tragic story serves as a reminder that our work on this
issue must continue. I would also like to thank my wife, Cindy McCain,
for her tireless efforts in this field and to those organizations that
have come forward to support the Stop Enabling Sex Trafficking Act of
2017. Your contribution is vitally important.
I am proud to cosponsor the Stop Enabling Sex Traffickers Act of
2017, which would amend Section 230 of the Communications Decency Act
to allow victims of sex trafficking to seek justice against websites
that knowingly or recklessly facilitate their victimization. The
legislation would criminalize commercial activity that assists,
supports, or facilitates a violation of Federal sex trafficking laws
and enables state law enforcement officials--not just the Department of
Justice--to take action against individuals or businesses that violate
Federal sex trafficking laws.
We know that Backpage.com is a market leader in commercial sex
advertising and that the website has been linked to hundreds of human
trafficking cases. We cannot allow these heinous crimes to go
unprosecuted. It is our duty as members of Congress to work tirelessly
to combat human trafficking and aid the victims of this monstrous
crime. I will continue to work vigorously with my friends from both
sides of the aisle on this very important issue. Thank you.
The Chairman. And I would note, however, that we're honored
to have Mrs. Cindy McCain in our audience today, along with a
number of distinguished guests, including Senator Heitkamp.
With that, I will now turn to Senator Nelson for his
opening statement.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Thank you, Mr. Chairman.
As we have this hearing today, there is an untold number of
women and children in the U.S. that are being sold at this
moment, into sexual slavery via the Internet. In just using a
few clicks, victims from all walks of life and all parts of the
country are being forced to endure brutal and unspeakable
crimes. Let me repeat: women and children are being forced into
sex slavery in modern-day America, and it could very well
happen to someone that you know.
Now, if that's not a wakeup call, then I don't know what
is. And, sadly, it's the truth that my fellow Floridians
tragically know all too well. According to the Human
Trafficking Hotline, Florida ranks third in the country for the
number of cases reported last year. The question before us
today is simple: Why aren't we doing everything we can to stop
this heinous practice? After all, we're talking about modern-
day slavery, and our children are the ones that are at risk.
The bill we have before us today would help us shut down
despicable websites that promote sexual trafficking. Don't kid
ourselves, these shady and highly profitable website operators
know full well how their sites are being used. What's more,
they're hiding behind a decades-old legal shield in Federal
communications law to immunize themselves from prosecution.
This bill, by the two Senators here and a host of others
that the Chairman mentioned, would eliminate this safe harbor
for sex traffickers and allow state attorneys general and other
state and local prosecutors and victims to go after the
websites that knowingly provide a platform for sex trafficking.
It would not, as some claim, take a sledgehammer to the
Internet.
We've got to take a stand. Rather, instead of a
sledgehammer, it takes a common sense, responsible, and
targeted approach, one that the courts tell us that we can take
to limit the scope of the current law and help end the scourge
of child sex trafficking on the Internet.
And while some stakeholders have concerns about this bill,
I strongly believe that we cannot sit idly by any longer while
the websites aid and abet child sex traffickers. The cost of
inaction is way too high.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Nelson.
As Senator Nelson mentioned, we're joined today by two of
our colleagues in the Senate, and the lead sponsors of the
SESTA legislation, and so we're very privileged to welcome
Senators Portman and Blumenthal. Senator Blumenthal, of course,
is a member of this Committee. We look forward to hearing from
each of you about your legislation. I'll start on my left, and
your right, with Senator Portman and Senator Blumenthal.
Senator Portman, welcome.
STATEMENT OF HON. ROB PORTMAN,
U.S. SENATOR FROM OHIO
Senator Portman. Thank you, Senator Thune. I appreciate
your holding this hearing and your personal commitment and
Senator Nelson's personal commitment to combating this horrific
crime of sex trafficking.
I want to thank my colleagues around the panel, many of you
who have stepped up early on and cosponsored legislation and
played a critical role in us getting to this point. You know,
we have passed legislation. Senator Thune has been part of that
over the years. This Congress has done more in the last few
years on sex trafficking than we have in our history, but the
reality is it's on the increase, and it's for one reason,
according to all the experts, and that's online sale of girls,
children, women. We've got to face that reality and deal with
it.
And again I appreciate the fact that you're having the
opportunity to hear not just from us--and I appreciate my
colleague being here, Senator Blumenthal and I are cofounders
of the Caucus on Trafficking, and we're partners in this
effort--but you're going to hear from victims, too, as I
understand it. I think Yvonne Ambrose is here, and Yvonne is
going to talk about her tragic personal story, and it's
heartbreaking. And as a father of three, and I see many parents
around the panel here today and behind us, it's unimaginable
this would be going on in the 21st century.
So again thank you to all the witnesses, but particularly
Yvonne for showing the courage to come forward and talk about
the horror that she has experienced and sharing that story with
us.
This increase in sex trafficking is a stain on our national
character. It is. The fact that it's going on in this country
at this time. Based on the information we've received from law
enforcement--and law enforcement, by the way, is strongly
behind this legislation. As you know, they have endorsed it
across the board, the district attorneys, U.S. attorneys, and
the FOP, but they tell us the increase is real and that it's
primarily based on this increase on the Internet.
By the way, the tech community does not deny that. For
example, a Google executive wrote an op-ed earlier this spring
saying, quote, ``Technology's role in human trafficking cannot
be ignored, as the example of Backpage demonstrates. The sad
reality is that three out of four child sex trafficking victims
in the United States have been exploited online, and predators
often make their first connections to victims on the
Internet.'' This is a Google executive. I believe Google wants
to fight back against trafficking, and I think she's right.
I see this reality myself as I visit with survivors, and
I'm sure all of you have had this experience back home in
talking to victims and survivors. Repeatedly, they tell you the
same thing, the trafficking is on Backpage. Usually drugs are
involved as well.
As traffickers have told me, or sex trafficking victims
have told me, and, you know, this comes from probably a half
dozen different victims, the same thing, which is that,
``Senator, this has moved from the street corner or the street
to the smart phone.'' That's where it's moved, and that's where
there is this ruthless efficiency.
Last month, I spoke to some victims in Youngstown, Ohio,
and, of course, Backpage came up because they said that's how
they were trafficked. A young woman told me she was first sold
on Backpage at age 9. She told me tearfully that her father
would take her from city to city for major sporting events and
sell her up to 20 times a day. Ruthlessly efficient.
With Ranking Member Claire McCaskill, the Permanent
Subcommittee on Investigations, which I chair, has spent the
last couple of years investigating Backpage. We took a deep
dive. We found, unfortunately, that the website is far more
complicit in these crimes than anyone previously thought. We
were able to show Backpage was actively and knowingly involved
in illegal sex trafficking, and it covered up evidence of its
crimes in order to increase its profits.
Thank you, every member of this panel, for voting with us
to hold them in contempt when they refused to testify. When
they refused to provide information, we took it all the way to
the Supreme Court. Thanks to the Senate, for the first time in
21 years, holding a private actor in contempt of Congress, and
we were successful in getting a million documents that showed
clearly that they were actively and knowingly involved in
illegal sex trafficking.
Despite these facts, efforts by trafficking survivors and
law enforcement to hold Backpage accountable have failed
repeatedly. Why? Because courts around the country have ruled
that Backpage has brought immunity under a Federal law, the
Communications Decency Act. It's a 1996 law that has not kept
up with the times. When Congress enacted the law, I do not
believe it intended to shield anyone for responsibility for
serious Federal crimes, much less sex trafficking. Looking at
the legislative history, I believe the goal was to protect
website operators who were acting in good faith, and that made
sense, who lacked knowledge that third parties were posting
harmful or illegal content on their sites.
We all believe in free speech. I think everyone on this
panel believes that we ought to have Internet freedom, but the
Communications Decency Act was never intended to protect those
that engage in illegal conduct, and it was certainly never
intended to protect online predators and sex traffickers. In
fact, nothing in the original text of this law suggests that
there should be an all-encompassing immunity for websites like
Backpage that knowingly engage in sex trafficking.
Judges across the country, by the way, have made it clear
that it is Congress' responsibility to fix this law. They have
invited us to fix this law. Last year, the First Circuit Court
of Appeals recognized Backpage's role in the horrific crime of
sex trafficking, but the court ruled that its hands were tied
stating the remedy is through legislation, not litigation.
And just last month, a court in Sacramento threw out
pimping charges against Backpage because of the Communications
Decency Act. That court made an even more obvious call to
Congress stating, quote, ``If and until Congress sees fit to
amend the immunity 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.''
It's up to us. Because of this interpretation of the law
over the last 20 years, only the Congress can fix this
injustice. That's why we've introduced this legislation. It's
bipartisan. It's common sense. It's targeted. It's called the
Stop Enabling Sex Traffickers Act. It would do just two things.
First, it would allow sex trafficking victims to get the
justice they deserve against websites that knowingly,
knowingly, facilitate sex trafficking against them. Second, it
would allow state and local law enforcement to prosecute such
websites that violate Federal sex trafficking laws. I know
Xavier Becerra, Attorney General of California, is going to
talk about this.
This knowing standard, by the way, in our legislation is a
high bar, as the lawyers around this panel know. They have to
be proven to have knowingly facilitated, supported, or assisted
in online sex trafficking to be liable in the first place.
Because the standard is so high, our bill protects good tech
actors and targets rogue online traffickers like Backpage.
Our bill also preserves the Good Samaritan provision in the
law that protects good actors who proactively screen for
offensive material. I believe Google, Facebook, and other
legitimate websites do that, and they should have that Good
Samaritan protection, and that's in the law.
Support is growing for the legislation. As I mentioned,
we've got lots of support from the law enforcement community,
also dozens of survivor groups, some are here today, anti-
trafficking coalitions, faith-based groups.
We appreciate the encouragement from some prominent members
of the tech community, by the way. Oracle has endorsed the
legislation. 21st Century Fox endorsed it last week. Just
yesterday, Hewlett Packard Enterprise endorsed the legislation,
as did Walt Disney Company. They've all joined in this mission
to stop this criminal sex trafficking online.
Fifty attorneys general from across the United States
recently urged Congress to support this legislation. Again,
we'll hear from California Attorney General, our former
colleague, Xavier Becerra.
But let me say this, the fact that instances of human
trafficking and sex trafficking are actually increasing in this
country in this century is an outrage. It's a disgrace. And I
believe history is going to judge us on how we respond to it.
Silicon Valley, Mr. Chairman, holds itself out as being
more than just another industry, but, rather, a movement to
make the world a better place. In so many ways the Internet has
contributed positively to our world, but the selling of human
beings online is the dark side of the Internet. It can't be the
cost of doing business, and it doesn't make the world a better
place.
And there's something we can do about it. This legislation
will help. This Committee can act to stop criminal sex
trafficking online.
Thank you for allowing me to testify today, Mr. Chairman.
The Chairman. Thank you, Senator Portman.
Senator Blumenthal.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks very much, Mr. Chairman. Thanks
to you and the Ranking Member for bringing us together today on
this very important subject. And I want to thank both of you
for your personal commitment to action on this important topic.
And I also want to thank Senator McCain. I just left him at
the Armed Services Committee, which he chairs, and there's a
very important hearing going on there now, so I know he will
try to be here if he can. But Cindy McCain is with us today,
and she has been a tireless and tenacious advocate on this
subject, so I want to thank her as well.
I particularly want to thank our colleagues, nearly a third
of the Senate, many members of this Committee, who have
cosponsored this bill. Senator Hassan and Senator Duckworth
have just cosponsored it, joining Senator Nelson, Senators
Klobuchar, Blunt, Sullivan, Cruz, Lee, and Capito. And I want
to thank others who have not yet joined it. We are talking very
diligently with Senator Harris, for example, as well as Senator
Cortez Masto, Senator Booker, Senator Schatz, others who are
helping us to clarify and make this legislation even more
precise. And I look forward to continuing our work with this
group to make sure that the language achieves our goal without
any unintended or unforeseen consequences.
And I want to finally join the survivors who are with us
today, Yvonne Ambrose. We are here in large part because of
three incredibly courageous young women. These three women were
each 15 years old when they were first sold for sex. They were
sold invisibly, but in plain sight. The ads that sold them used
coded language to indicate that they were, in fact, underage.
Over the course of roughly 4 years, they were raped thousands
of times.
In 2014, these three young women had the courage to go to
court. They brought a lawsuit against Backpage for facilitating
sex trafficking. The First Circuit reviewed their case, and as
Senator Portman has said, they called this an outrage. They
used that word, ``outrage,'' but they said that there were no
remedies, there were no legal claims that could be recognized
in court because of this section in the law, Section 230 of the
Communications Decency Act. Nothing could be done for them.
The court in effect said to us, the Congress of the United
States, You made this mess, now fix it. These women are in a
legal black hole without justice. Congress must fix it. That's
why we're here.
This problem is hardly new or novel. My efforts against sex
trafficking in fact began almost a decade ago, exactly this
problem, when I led a coalition of 39 states investigating the
online classified company Craigslist for facilitating and
profiting from sex trafficking. In 2010, Craigslist voluntarily
took down its adult services section. We won the battle, but
the war was far from won.
As purchasers of sex moved away from Craigslist, they went
to Backpage.com. In fact, the National Center for Missing and
Exploited Children, which I should note is represented here
today, reported an 846 percent increase in reports of suspected
sex trafficking between 2010 and 2015. In other words, after
Craigslist settled, there was an 846 percent increase in sex
trafficking over those 5 years, and it was directly correlated
to the increased use of the Internet to sell children for sex.
In 2016 alone, the National Human Trafficking Hotline
received 5,551 reports of sex trafficking incidents. Shutting
down one website is not enough. Shutting down Backpage, even if
it would occur, is not enough. We need to pass this measure. If
we fail to do so, if we fail to close this gap and fill this
legal black hole, we become complicit.
And those numbers, by the way, underestimate this problem.
Think of it for a moment. Those reports require the same
courage that these young women demonstrated to come forward and
brave the stigma and shame of acknowledging that they have been
sold for sex.
So when the critics of this legislation say there will be a
deluge of lawsuits, that there will be frivolous or unfounded
claims, think of it for a moment. Survivors have to come
forward and establish their standing under the law by making
the case that they have been sold for sex. There will be no
deluge of frivolous lawsuits as a result of this measure.
It's time to say, ``No more.'' Congress must stop allowing
websites to promote and profit from sex trafficking. Senator
Portman has outlined the provisions of this bill. They are
narrowly targeted and carefully crafted. We are working to make
them even clearer and more precise to avoid unintended
consequences.
I understand that some of the companies may wish to
continue the shield from liability that they have. Companies
rarely welcome additional legal accountability. I understand
that point. But this is about social and moral responsibility
as well as giving survivors and victims a day in court. It is
time to open the courthouse doors to victims of sex trafficking
who have been sold into slavery as a result of ads that right
now can enjoy absolute immunity for sites that knowingly
facilitate, support, or assist--knowingly facilitate, support,
or assist. It's a high bar. These companies should be compelled
to meet it.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Blumenthal. And again
thank you to both you and Senator Portman and the cosponsors of
your legislation for your strong advocacy and for the
conversations that you have entered into with members of this
Committee and others in the Senate to try and make sure that we
get this right. But certainly we all recognize the need to act,
and we appreciate your leadership on this. Thank you for being
here.
I will now recognize another colleague of ours, Senator
Wyden, the great State of Oregon. And we appreciate you,
Senator Wyden, being here and sharing your perspective.
STATEMENT OF HON. RON WYDEN,
U.S. SENATOR FROM OREGON
Senator Wyden. Thank you very much, Mr. Chairman, and
Senator Nelson. And I also come as an alum of this Committee,
and as one of the coauthors of Section 230 of the
Communications Decency Act.
Numerous experts obviously have pointed out that Section
230 was absolutely necessary to bring our legal system into the
21st century. It has been the legal foundation for the growth
of the Internet, particularly in areas like education, jobs,
and a platform for free speech around the world, and I believe
it ought to be kept intact.
Now, when I wrote Section 230 more than 20 years ago, it
was in recognition of the fact that the Internet was just going
to change everything, the way we interact with each other, the
way we do business. It would change virtually every corner of
our lives and our society. And we understood that no amount of
legislation and political bloviating could stop the change, but
we could influence how it came about.
And the key question, Mr. Chairman and colleagues, was,
Would there be an Internet dominated by private networks with
the worst impulses of human beings going on in impenetrable
dark corners, or would the Internet be a platform open to the
world where such impulses would be exposed to sunlight and the
law? That's why we made it crystal clear that absolutely
nothing in the 230 statute protects against violation of
Federal criminal law, and, more importantly, nothing in the
statute protects individuals from the full force of the law
when they commit and leave evidence of their crimes online.
The Net has exposed much about human behavior that we might
prefer to remain hidden. It's exposed much that many,
particularly those in law enforcement, already knew about, but
it's exposed them. And the question now is--and you've touched
on this, Mr. Chairman--is, How do you respond? Do we react like
politicians, mindlessly bludgeoning deep pockets, driving away
innovation, and utterly failing to stop the worst behavior, but
simply just drive it underground? Or does the Congress react
with resolution and purpose, providing law enforcement with the
resources to effectively attack this horrible scourge that is
far older than the Internet and we end up actually aiding the
victims of this horrendous crime?
So the issues to be addressed are not whether to eliminate
the freedom that makes the Net a place of innovation and
opportunity; the issue is how to address, how to identify, and
lock up these horrible criminals who use the Net, as they've
abused a thousand tools before them, to create victims and
destroy lives. If law enforcement needs more resources,
colleagues, or the tools to crack down in crime-laden Internet
neighborhoods like Backpage, let's give them what they've got
to have, and that includes a change in law to hold responsible
those who might cynically design to profit from illegal
behavior under the guise of providing a legal service.
And I have fought alongside many of you on this panel, in
this Senate, to end sex trafficking at home and abroad and
support survivors of trafficking by getting those resources to
the key enforcement officials who are on the front lines to
fight this modern-day slavery. And I'm going to continue to do
whatever it takes to provide strong protections and bring
support to survivors to stop this kind of exploitation.
Mr. Chairman and colleagues, I take a back seat to no one,
no one, in this Senate in the fight against sex trafficking.
That's a matter of public record. I just believe that the
legislation being considered today is the wrong answer to an
important question. It wasn't very long ago that Members of the
Congress were calling the Net a series of tubes. When it comes
to legislation, we've had the most success when protecting
Americans' rights and protecting incumbent industries from
smothering the innovators.
Now, I don't think anybody on the Committee today says,
``Hey, let's undermine this thing that created a trillion
dollars' worth of economic value.'' That is part of the
question being considered today. America may have played the
biggest role in creating the Net, but important to the
discussion today, the barriers to entry are very, very low.
The reason another nation with more people, including more
computer users, like China or India, that had a functioning
interactive network before us, like, say, France, have failed
to dominate the Net is our foundation of Internet laws that
kept lawyers and politicians and tax collectors from hobbling
innovation and hobbling growth. Those forces never give up, and
I'm sad to say they're at work right now.
When I helped author Section 230, I didn't know all the
effects it would have, but I did know three things.
First--and I'll wrap up with this, Mr. Chairman--I wanted
to help the gutsy startup by allowing them to hire engineers
and developers and designers before they went out and hired a
team of lawyers.
Second, I wanted to protect good actors by allowing them to
take down some material without being liable for everything. I
think we all can agree that's a better scenario than having
websites hide their heads in the sand.
And, third, it was absolutely essential to me, my bottom
line, is making sure that bad actors would still be subject to
Federal law. People who commit crimes can and ought to be
prosecuted, whether they're online or whether they're on a
street corner. Protecting that startup from discriminatory
state law is vital, but it is equally important to make sure
criminals of all kinds are held accountable.
So as you consider making changes to Section 230, I hope
you keep looking out for that person we were talking about 20
years ago, the little guy, the person who has taken a big risk.
Technology has been important for the last 20 years, and we
need to make sure that we have policies like Section 230 in
place to make sure it stays that way.
And I think this Committee, in its tradition, has always
been to pursue the regular order when it considers changes. And
I look forward to having the opportunity to talk with you, our
friend Senator Nelson, all of our colleagues, as this debate
goes forward.
The Chairman. Thank you, Senator Wyden.
I want to thank our colleagues all for being here this
morning and inform everybody that a vote has been called. And
so we're going to keep rolling here, and we'll try and figure
out a way to juggle the chairs so that we can continue to hear
from the people that are here.
And I want to invite up now to share her very personal
experience with this, Ms. Yvonne Ambrose. And she'll be next.
Ms. Ambrose, welcome to the Committee. Thank you for your
willingness to share your personal story with us. We look
forward to hearing from you.
STATEMENT OF YVONNE AMBROSE,
MOTHER OF DESIREE ROBINSON
Ms. Ambrose. Thank you so much, Senator Thune and Ranking
Member Nelson and members of the Committee for holding this
hearing today and inviting me to come and testify.
When you have your first child, it changes your life. You
become a different person. Your whole world revolves around
them. You get butterflies every time you kiss their little
feet, every time you hold their hand. Their smile brightens
your whole life. Your life revolves around this person, and you
would give them the world if you could. You think you will have
forever with them, so you start planning for their future.
My daughter, Desiree Robinson, was born March 29, 2000, at
2:52 p.m. She was the light of my life, my firstborn, my only
daughter, my heart, my world. And Desiree made me a better
person because she was a beautiful person. She had the
brightest smile that could light up a room. And with your
permission, I would like to share a photo of her with the
Committee.
During her grammar school years, she made friends
everywhere she went, whether it was on vacation, at school, at
church, the Boys and Girls Club, or walking around the mall.
Everyone wanted to be her friend. She was loved by all, and
everyone she encountered, she loved as well. She was a bright
student, great athlete, and took joy in helping others.
Throughout grammar school, she won numerous awards for her
academics, citizenship, athletics, and volunteered within the
community.
Desiree had dreams of one day becoming a physician in the
U.S. Air Force. She attended Air Force Academy High School on
the South Side of Chicago with hopes of graduating and going to
captains school in Colorado to help further her dream. Her
future was very bright.
Desiree was a good person who just wanted to be loved and
accepted by all. Desiree struggled in the last year of her
life. She was bullied for her diverse racial background, and
always tried to fit in with her friends, like a lot of other
teenagers. She knew she was loved by her family and friends,
but she looked for love and acceptance anywhere she could find
it. She was only 16 years old and just wanted to make friends.
We now know that adult men found Desiree on social media,
reached out to her, pressured her, and used her to make money.
She was preyed on and sold online by pimps who took advantage
of her. Desiree didn't know what Backpage.com was or the harm
that would come from this website.
On December 23, 2016, a 32-year-old man by the name of
Antonio Rosales was looking through Backpage.com for a child to
have sex with, just like countless others before him. They knew
that this is a website that they could go to, to engage in sex
with minors. He knew Backpage.com was a site to go to in order
to find young underage girls to have sex with. During his
search, he came upon a picture of my 16-year-old daughter under
the posting, ``New girl in town looking to have fun,'' which
was posted by her pimp. Desiree was driven to Antonio's
residence by the pimp with the intent of having sex with this
32-year-old man, a man twice her age.
This was the last night of my daughter's life, and her
pictures were posted and moderated by Backpage.com, and this
was the reason for her demise. On Christmas Eve, December 24,
2016, Desiree, my baby, was brutally murdered, and now my life
has changed forever. She had been beaten, raped, strangled, and
if that wasn't bad enough, he slit her throat, all because she
said, no, she didn't want to do this again. She screamed for
help, and there was no one around to help her.
Desiree's death should have never happened. The sex
trafficking of minors should not be happening in our country.
Taking advantage of our children on the Internet has become
such a common thing in this country that people turn the other
cheek just because they don't want to believe it's actually
happening right here in our backyards. This is not a race,
gender, or economic problem; this is a people problem, a human
problem.
If there were stricter rules in place for postings on these
websites, my child would still be alive with me today. The
truth is Backpage.com and other sites are making millions of
dollars by exploiting our children and allowing them to be
taken advantage of by predators. If we don't speak up now,
these websites will continue to profit off trafficking our
babies. It could be your child, your niece, your nephew, your
cousins, your friends' children next if you don't stop this.
The tragic death of my baby girl made me take a step back
and think about her life. She was a good person, a good
student, and had a great personality. She gave her all to make
sure that people were happy. She even had a tattoo on her arm
that said, ``Be the change that you would like to see in the
world.''
The day my baby was taken away from me was the worst day of
my life. The hurt and pain that my family continues to endure
is unimaginable. I struggle to believe that a loving and
talented girl such as Desiree is gone from this earth because
an Act such as 230 allowed the Internet to exploit her. And
now, Section 230 is standing in the way of justice for my child
and other Jane Does out there like her. Backpage.com and other
companies like this must be held responsible for what they have
created. I'm sure when this Act was put into place in 1996, the
Internet was in its infancy, and it was not intended to allow
companies to legally sell children on the Internet, but somehow
a dollar has become more important than a human life. If you're
going to fix this problem, fix it.
I was suppose to make this transition from this Earth
before her. Parents are not supposed to bury their children.
All of the plans that we made together for her life will never
happen. I would not wish this pain and hurt on my worst enemy,
and I pray that Desiree's life can make a difference so no one
else has to ever endure this pain again.
I'm asking you, the U.S. Senate, to amend Section 230 and
be the change you want to see in this world, not only for the
justice for Desiree, but for all the countless Jane Does out
here and the other little girls to come who don't have a voice.
We have to be the change now to protect our babies from
websites like Backpage.com that open the door for predators
without any accountability.
My name is Yvonne Ambrose. I am the mother of the late
Desiree Robinson, and I'm asking you, the U.S. Senate, to
change Section 230, and support the bipartisan legislation, the
Stop Enabling Sex Traffickers Act, not only for my baby, but
for the protection of yours and others to come.
The Chairman. Thank you, Ms. Ambrose, for sharing in a very
compelling and powerful way and helping personalize the issue
that we're dealing with for all of us here on this Committee
this morning. Thank you for being here.
Ms. Ambrose. Thank you.
The Chairman. I want to invite our next panel to come
forward. We have the Attorney General of California, Mr. Xavier
Becerra.
Xavier, welcome.
Mr. Eric Goldman is Professor of Law at Santa Clara
University School of Law. And Ms. Abigail Slater, who is
General Counsel at the Internet Association. And Ms. Yiota
Soros--Souras I should I say.
So we want to welcome all of you to the panel and thank you
in advance for the testimony that you're going to share with
us. And we will start on my left, and your right, with Attorney
General Becerra, and we'll proceed from there. And if you can,
as much as possible, confine your oral remarks to 5 minutes, we
will ensure that your entire statement is included as part of
the record, but it will enable members of the Committee to have
time to ask questions.
So General Becerra, welcome back to Congress, and great to
have you here.
STATEMENT OF HON. XAVIER BECERRA, ATTORNEY GENERAL, STATE OF
CALIFORNIA
Mr. Becerra. Mr. Chairman, thank you very much, and to
Ranking Member Nelson and to all the members of the Committee,
thank you for letting me join you today. It's always a pleasure
to be back where I spent more than 24 years of my career.
I want to thank, first of all, Senator Portman and Senator
Blumenthal, the sponsors of this legislation, 1693, for their
hard work and their tenacity. To my Senator, Senator Kamala
Harris, I want to thank her for all the work that she has done
over the years, previously as the Attorney General for the
State of California before she became now our U.S. Senator,
joining Senator Feinstein here in Washington, D.C.
It's important to thank the tech industry. As all of you
know, many in the tech industry have stepped up to be partners
with law enforcement and child advocates to combat human
trafficking. And certainly we have to thank our tireless
advocates, who somehow give hope to so many women and children
and help provide critical services to survivors of sex
trafficking. But most of all, I want to thank the men and women
of law enforcement, who stay in the ring even though we've got
one hand, if not both hands, tied behind our back in this fight
against child sex trafficking.
S. 1693 is a serious effort to balance the virtues of a
free and open Internet with the bedrock American value that our
children are our greatest asset, each one of them, and we must
hold those who exploit them accountable.
Senate Bill 1693 recognizes and balances on one hand the
Communications Decency Act success in promoting and propelling
the Internet and its innovation, and on the other, the swift
and lucrative migration of sex trafficking from the pavement to
the Internet. S. 1693 goes to the heart of one of the critical
concerns 49 state generals and I expressed in a recent letter
to Congress, the need to clarify the Communications Decency Act
so there is no mistake about the authority of state and local
prosecutors to prosecute those involved in online child sex
trafficking.
Human trafficking is one of the fastest growing criminal
enterprises worldwide. The Internet has made it so much easier,
faster, and safer to make big bucks. Pimps use virtual brothels
to sell vulnerable children online on a daily basis. As much as
we've all tried to do our best, whether it's Congress, the tech
community, law enforcement, we are losing the fight against sex
trafficking, which means we're losing our children. Ask Yvonne
Ambrose.
So here's my plea, Mr. Chairman: be thorough, but
courageous, like the kids who overcome their trauma in crossing
the finish line with S. 1693. We're all here ready to help
however we can to get a bill that gets the votes.
Second, don't let sex trafficking or our children believe
that we're going to allow people who traffic in sex with our
kids hide in plain sight on the Internet. And let's not let
ignorance of the law be anyone's excuse.
Three, don't be dissuaded. Regardless of what anyone says,
prosecution for sex trafficking requires criminal intent. No
one can be convicted for acting in good faith.
Four, amending the 21-year-old Communications Decency Act
is not a sin. Even the Constitution was amended within 14 years
of its adoption. And that's, of course, when we accepted the
First Amendment and the remainder of the Bill of Rights to the
Constitution. And I must also mention, having served in this
body for 24 years, that here in the Senate and the House, you
have the power of Congress' legislative record to buttress the
underlying purpose of any changes that you choose to make to
the CDA. Remember that the CDA is older than all of the
children we're fighting to protect. So let's look at the CDA
with fresh, but experienced eyes.
The First Amendment in the CDA will continue to stand the
test of time. But you can't yell, ``Fire!'' in a theater, you
can't sell kids on the street for sex, and you shouldn't be
allowed to traffic children for sex on the Internet. It's time
to clarify the Communications Decency Act so that we can
prosecute those who would sell our children for sex. Senate
Bill 1693 gives us a chance to save our children from the
unspeakable exploitation we can only imagine, and for that
reason, Mr. Chairman, I will work as hard as I can with you and
all those who believe it's time that we finally amended the
Communications Decency Act to protect our children.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Becerra follows:]
Prepared Statement of Hon. Xavier Becerra, Attorney General,
State of California
I. Introduction
Thank you, Chairman Thune, Ranking Member Nelson and all the
Members of the Committee for the opportunity to be here today. It is my
privilege to testify before the Committee on Commerce, Science, and
Transportation on Senators McCaskill and Portman's bipartisan S. 1693,
The Stop Enabling Sex Traffickers Act of 2017.
As the Attorney General of California--our state's top law-
enforcement officer--I have a unique role to play in combating the
heinous crime of human trafficking. Today, I am here to explain why the
Communications Decency Act needs to be clarified so that we can more
effectively do our jobs in enforcing laws that protect children and
help us eradicate this crime for good.
Human trafficking is one of the fastest-growing criminal
enterprises worldwide. All too often, criminals prey on women and
children and profit from sex trafficking without fully facing the
consequences of their crimes. California has more reported cases of
human trafficking than any other state. As Attorney General, I am
committed to doing everything in my power to prosecute traffickers and
disrupt the criminal organizations that profit from the exploitation of
human beings.
The Urban Institute examined the underground economy of sex
trafficking in eight major U.S. Cities, including San Diego, and found
that pimps and traffickers interviewed for the study took home between
$5,000 and $32,833 a week. Notably, in this study, multiple pimp
offenders reported, ``no one actually gets locked up for pimping''. \1\
---------------------------------------------------------------------------
\1\ Urban Institute, https://www.urban.org/research/publication/
estimating-size-and-structure-underground-commercial-sex-economy-eight-
major-us-cities
---------------------------------------------------------------------------
The perpetrators of human trafficking have become more
sophisticated and organized, requiring an equally sophisticated
response from law enforcement and its partners to disrupt and dismantle
their networks.
II. Amending the Communications Decency Act
Section 230 of the Communications Decency Act was passed in 1996.
Unfortunately, some courts have interpreted the Communications
Decency Act as currently written to limit our ability to go after
companies that actively profit from sex trafficking and crimes against
children. We believe that those judicial decisions misconstrued what
Congress intended when it originally enacted the Communications Decency
Act. I therefore applaud the current efforts to make clear that the
Communications Decency Act does not bar states from pursuing these
important prosecutions.
The world was a different place in 1996, the last time this
Congress passed a major telecommunications act--in particular, the
Communications Decency Act--before most of today's victims of sex
trafficking, adults or children, were even born. The modes of
trafficking children are different. The horrendous crime is the same,
but the venue for it has changed. The Internet has caused an explosion
of sex trafficking, where virtual brothels are used by pimps to exploit
and sell vulnerable children on a daily basis.
Maggy Krell is a career prosecutor at the California Department of
Justice who has taken the lead on sex trafficking cases for our office,
including against the owners of Backpage.com. She said that,
``virtually every human trafficking case now involves a website
component. Law enforcement needs to be able to disrupt the criminal
networks.'' This point underscores the importance of amending the
Communications Decency Act.
I therefore support passage of S. 1693 and its amendments to
Section 230 of the Communications Decency Act. It's an important step
we should take to make clear the authority of state and local law
enforcement to protect victims of trafficking from those who promote,
facilitate and benefit from sex trafficking online.
I appreciate the work of Senators McCaskill and Portman and many of
you on this Committee in leading the effort of the United States Senate
on this bipartisan bill. I also want to thank Senator Harris for all
that she has done to combat trafficking in California.
I know that the Internet Association and others have come out
against this bill, but this bill is narrowly crafted to target sex
trafficking. I appreciate the help of many of these companies that are
helping California and other states more effectively target traffickers
and pimps and encourage them to come to the table to work with us on
this bill. I hope they will join us at the table on this bill to
address this critical issue.
This bill is about protecting our most vulnerable. This is not a
Republican or Democratic issue. This is an issue of justice, and
ensuring that our Nation's top cops--my fellow attorneys general across
the country--are able to enforce the law. In fact, recently, 49 of my
colleagues--representing nearly every U.S. state--signed a letter to
this Committee urging Congress to act.\2\
---------------------------------------------------------------------------
\2\ https://www.oag.ca.gov/news/press-releases/attorney-general-
becerra-urges-congress-amend-communications-decency-act-empower
---------------------------------------------------------------------------
In fact, in that letter, my colleagues and I urged Congress to go
broader than S. 1693, and encouraged amendments be applicable to not
only sex trafficking but all criminal enforcement action. I believe
that this action will make the bill even stronger, and protect against
other crimes such as child pornography and other forms of cyber
exploitation. I encourage the Congress to continue thinking about and
working on this bill and issue. California welcomes the opportunity to
be a part of the discussion.
III. California's Experience and Perspective
According to the National Human Trafficking Hotline, 4,460 cases of
human trafficking have already been reported for 2017, 705 of which
were reported in California since the start of the year. In fact, over
the past five years, California has consistently had the most human
trafficking cases reported in the United States.\3\
---------------------------------------------------------------------------
\3\ National Human Trafficking Hotline, https://
humantraffickinghotline.org/states
---------------------------------------------------------------------------
In recent years, transnational criminal organizations and
affiliated domestic gangs have expanded from drug and firearm
trafficking to the trafficking of human beings. From cross-border
tunnels for transporting victims to domestic recruiting of vulnerable
populations in our local communities, these criminal organizations have
set aside traditional rivalries to set up commercial sex rings that
profit from the sale of human beings, in particular, young women and
girls.
California has led the Nation in the fight against human
trafficking--from increasing penalties against traffickers to providing
resources to help survivors heal from the trauma of their experience
and seek and find justice. Our state has passed legislation to finally
treat sexually exploited children as victims, not criminals. We also
have a law in California that requires large companies doing business
here to provide information to consumers about their efforts to fight
human trafficking. And we are continuing to push innovative legislation
aimed at prevention to teach our children in the classroom how to
recognize and avoid predators.
Further, my office runs a Human Trafficking Taskforce with local
law enforcement in San Diego that disrupts and dismantles human
trafficking and child exploitation organizations through a
comprehensive, collaborative and regional law enforcement and
prosecution response. The Taskforce works to identify victims and hold
exploiters accountable; along with promoting community awareness,
expanding the exchange of information, and enhancing law enforcement
resources and training.
The State of California is committed to combatting all human
trafficking and has demonstrated this consistently and will continue to
work with partners across the country on this important issue.
IV. Backpage.com Case
The California Department of Justice brought charges alleging that
the owners of Backpage.com committed conspiracy, money laundering, and
pimping by profiting financially from advertisements used to promote
and solicit the sex-trafficking of teenagers, including victims under
the age of 16.
However, the defendants argued in court that the Communications
Decency Act gave them broad immunity from all of the charges.
Ultimately, the judge allowed us to go forward on the conspiracy and
money laundering charges, but as to the other charges, the Judge said:
``If and until Congress sees fit to amend the immunity 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.''
We are pursuing our prosecution of the conspiracy and money
laundering charges. But regardless of our success in California, the
amendment is aimed to ensure that state and local law enforcement,
across the board, have the unquestioned authority to enforce our laws
and protect our most vulnerable citizens. This bill takes an important
step forward in serving that goal and helping victims.
Although I support the bill as an important step, it is essential
to note for the Committee that the bill can be made even stronger. The
focus of this bill is narrow, in the sense that it specifically
mentions only state prosecutions involving sex trafficking. We believe
that the original intent of Congress in enacting the CDA was to
preserve state prosecutorial authority more generally, just as the
original CDA preserved Federal prosecutorial authority. I understand
and respect that Congress is seeking to strike a balance here in
narrowly crafting this bill. My team at the California Department of
Justice and I would be happy work with Senators Portman, McCaskill and
this Committee to make the bill even stronger.
V. Conclusion
But let's be clear, this discussion today is not just about
tweaking a statute. It's about real lives.
Flip through any newspaper. Countless instances of child sex
trafficking--and its online promotion--occur every day in the United
States. Federal and state law enforcement recently arrested a Chicago
man accused of pimping a 16-year-old girl via an online website,
leading to her murder. The man ``shopped [the girl] around'' online,
delivered her to a customer, and then fell asleep in his car outside a
parking garage. When he awoke, he discovered the girl's body in the
garage, ``her throat slit and her body badly beaten.'' We can, and we
simply must, do better.
I am sure our panelists today will share the degree to which this
crime is plaguing our country.
We can't deny that the Internet plays a significant role in sex
trafficking and has created virtual brothels where victims are bought
and sold online. And we won't turn a blind eye to the biggest
beneficiaries of sex trafficking because they were owners of a website
instead of pimps on a street corner.
Amending the Communications Decency Act is a critical step we can
take in the fight against human trafficking and one that we must take.
To that end, we look forward to working with Congress to on this very
important issue for Americans across the country.
The Chairman. Thank you, General Becerra. Great to have you
back and with us today.
Mr. Goldman is up next. I'm going to go vote, and Senator
Inhofe will have the gavel here.
STATEMENT OF ERIC GOLDMAN, PROFESSOR,
SANTA CLARA UNIVERSITY SCHOOL OF LAW
Mr. Goldman. Chairman Thune, members of the Committee, I
appreciate the opportunity to testify today about the Stop
Enabling Sex Traffickers Act of 2017. As we've heard today, sex
trafficking is a horrific crime, and I applaud Congress'
ongoing efforts to combat it. However, I'm concerned that SESTA
is not the right solution to stop sex trafficking.
Specifically, SESTA will counterproductively lead to more
socially harmful content and more online sex trafficking
promotions. Instead of stopping bad actors, SESTA will help
them proliferate. To understand why, it's helpful to review why
Section 230 has worked so well.
When I started practicing law, Internet law, in 1994,
before Congress enacted Section 230, we advised online services
to handle third-party content and activity in one of two ways.
The service could either: one, accept that it will be fully
liable for third-party content and manage that risk by
exercising editorial control through content prescreening or
other costly and cumbersome editorial procedures; or, two, take
minimal steps to moderate third-party content, and thereby
avoid any knowledge that might lead to liability.
Section 230 mooted that advice. Section 230 instead allows
online services to safely adopt a wide range of moderation
practices between those two extremes. By reducing online
services' moderation costs and liability exposure, Section 230
spurred new innovative services and fostered their growth,
contributing to the Internet's success. Virtually every waking
hour of every day we use online services that owe their
existence to Section 230s protections.
SESTA would reinstate the moderation dilemma that Section
230 eliminated. Because of Section 230, online services today
voluntarily take many steps to suppress socially harmful
content; that could include false and malicious content, sexual
material, and other lawful but unwanted content. And they can
do so without fearing for liability for whatever they miss.
Post-SESTA, some services will conclude that they cannot
achieve this high level of accuracy or that moderation
procedures would make it impossible to serve their community.
In those cases, the services will reduce or eliminate their
current moderation efforts. As more services do less to
moderate third-party content, we will see more socially harmful
content online that would have been moderated today. Indeed,
some online services that are actively suppressing sex
trafficking promotions will stop those efforts, leading to the
unintended consequence that SESTA will foster the expansion of
online sex trafficking promotion.
SESTA tries to avoid this moderation dilemma by focusing
on, quote, ``bad actors'' who promote sex trafficking. This
doesn't work because only some sex trafficking promotions
clearly self-identify as such. Sex trafficking promotions can
take less obvious forms, such as online prostitution ads, ads
for adult services that are legal, and, indeed, every type of
user content ranging from videos to dating profiles to message
board comments to tweets, and they can do so using coded
phrases and euphemisms to mask their promotional objective.
As a result, online services can't magically find and
eradicate only the online sex trafficking promotions. Automated
filters are costly and suffer from high error rates.
Furthermore, if the services decide to moderate their content,
they will have to undertake the larger and harder effort to
review their entire universe of third-party content, even
content that lacks obvious red flags, to find every
impermissible promotion. So SESTA doesn't limit itself to bad
actors; it applies to the entire Internet, and it forces
services to do--that are doing moderation to comprehensively
review all the content they receive.
Finally, SESTA isn't necessary to fight online sex
trafficking promotions. Section 230s immunity expressly does
not apply to Federal criminal prosecutions. Congress has
enacted numerous crimes against sex trafficking and its
promotion, including most recently the SAVE Act that this body
passed just 2 years ago to target sex trafficking promotion on
Backpage. If the Department of Justice prosecutes Backpage or
any other sites for the crimes that they have committed,
whether it's the SAVE Act or based on other crimes, Section 230
will not shield them.
A Federal grand jury is currently investigating Backpage.
Congress should wait for the results of that investigation,
which I hope will come soon, to identify if any gaps exist in
the law and how Congress should best respond.
SESTA is a complex law implicating important social issues.
I'm grateful that this Committee is paying close attention to
it. Thank you for the opportunity to testify.
[The prepared statement of Mr. Goldman follows:]
Prepared Statement of Eric Goldman, Professor,
Santa Clara University School of Law *
---------------------------------------------------------------------------
\*\ Professor of Law, Co-Director of the High Tech Law Institute,
and Co-Supervisor of the Privacy Law Certificate, Santa Clara
University School of Law. I'm testifying on own behalf, not on behalf
of my employer or anyone else. I started practicing Internet Law in
1994, and I started teaching Internet Law in January 1996--in both
cases, before Section 230 was enacted. E-mail: egoldman@gmail.com.
Website: http://www.ericgoldman.org.
---------------------------------------------------------------------------
Members of the Committee:
I appreciate this opportunity to testify about the Stop Enabling
Sex Traffickers Act of 2017. Sex trafficking is a horrific crime, and I
applaud Congress' ongoing efforts to combat it. However, I am concerned
that SESTA is not the right solution to stop sex trafficking.
Specifically, SESTA will counterproductively lead to more socially
harmful content and more online sex trafficking promotions. Instead of
stopping bad actors, SESTA will help them proliferate. To understand
why, it's helpful to review why Section 230 has worked so well.
When I started practicing Internet Law in 1994, before Congress
enacted Section 230, we advised online services to handle third party
content and activity in one of two ways. The service could either: (1)
accept that it will be fully liable for third party content, and manage
that risk by exercising editorial control through content pre-screening
or other costly and cumbersome editorial procedures, or (2) take
minimal steps to moderate third party content and thereby avoid any
knowledge that might lead to liability.
Section 230 mooted that advice. Section 230 instead allows online
services to safely adopt a wide range of moderation practices between
those two extremes. By reducing online services' moderation costs and
liability exposure, Section 230 spurred new innovative services and
fostered their growth, contributing to the Internet's success.
Virtually every waking hour of every day, we use online services that
owe their existence to Section 230s protections.
SESTA would reinstate the moderation dilemma that Section 230
eliminated. Because of Section 230, online services today voluntarily
take many steps to suppress socially harmful content (including false
and malicious content, sexual material, and other lawful but unwanted
content) without fearing liability for whatever they miss. Post-SESTA,
some services will conclude that they cannot achieve this high level of
accuracy, or that moderation procedures would make it impossible to
serve their community. In those cases, the services will reduce or
eliminate their current moderation efforts. As more services do less to
moderate third party content, we will see more socially harmful content
online that would have been moderated today. Indeed, some online
services that are actively suppressing sex trafficking promotions will
stop those efforts, leading to the unintended consequence that SESTA
will foster the expansion of online sex trafficking promotion.
SESTA tries to avoid the moderation dilemma by focusing on ``bad
actors'' who promote sex trafficking. This doesn't work because only
some sex trafficking promotions clearly self-identify as such. Sex
trafficking promotion can take less obvious forms, such as online
prostitution ads, ads for adult services that are legal, and indeed
every type of user content ranging from videos to dating profiles to
message board comments to tweets (and use coded phrases and euphemisms
to mask the promotional objective).
As a result, online services can't magically find and eradicate
only the online sex trafficking promotions. Automated filters are
costly and suffer from high error rates. Furthermore, if the services
decide to moderate their content, they will have to undertake the
larger and harder effort to review their entire universe of third party
content--even content that lacks any obvious ``red flags''--to find
every impermissible promotion. So SESTA doesn't limit itself to bad
actors; it applies to the entire Internet and force services doing
moderation to comprehensively review all content they receive.
Finally, SESTA isn't necessary to fight online sex trafficking
promotions. Section 230s immunity expressly doesn't apply to Federal
criminal prosecutions. Congress has enacted numerous crimes against sex
trafficking and its promotion, including most recently the SAVE Act
passed just two years ago to target sex trafficking promotions on
Backpage. If the Department of Justice prosecutes Backpage for any
crimes Backpage may have committed (whether the SAVE Act or other
crimes), Section 230 will not shield Backpage. A Federal grand jury is
currently investigating Backpage. Congress should wait for the results
of that investigation--which I hope will come soon--to help identify if
any gaps exist in the law and how Congress should best respond.
SESTA is a complex law implicating important social issues. I'm
grateful that this committee is paying close attention to it. Thank you
for the opportunity to testify.
* * *
I supplement my oral remarks with two attachments:
``Congress Is About to Ruin Its Online Free Speech
Masterpiece,'' an essay more fully outlining my concerns about
the bill.
``SESTA Would Eliminate the Good Samaritan Defense,'' an
essay rebutting Sen. Portman's claims that SESTA would not
modify Section 230s ``Good Samaritan'' defense.
______
Attachment 1: Congress Is About To Ruin Its Online Free Speech
Masterpiece *
---------------------------------------------------------------------------
\*\ A version of this was first published as Eric Goldman, Congress
Is About To Eviscerate Its Greatest Online Free Speech Achievement,
ACSblog, Sept. 11, 2017, https://www.acslaw.org/acsblog/congress-is-
about-to-eviscerate-its-greatest-online-free-speech-achievement.
---------------------------------------------------------------------------
In 1996, Congress became concerned that excessive liability would
threaten the free flow of information over the Internet. To protect the
Internet from this risk, Congress passed 47 USC Sec. 230 (Section 230),
which eliminates (with limited exceptions) the liability of online
services for publishing third party content.
By any measure, Section 230 has been a remarkable success. Think
about the Internet services you use daily, such as Google, Facebook,
YouTube, Wikipedia, Twitter, eBay, Snapchat, LinkedIn, and Yelp. All of
them publish third party content, and all of them have flourished
because of Section 230s immunity. Section 230 also promotes competitive
markets by reducing entry costs. New entrants can challenge the
marketplace leaders without having to match the incumbents' editorial
investments or incurring fatal liability risks.
Section 230 is a globally unique policy; no other country has
passed a law similar to it.\1\ As a result, the United States has a
global competitive advantage for online services that republish third
party content. This has helped create trillions of dollars of social
wealth in the U.S.\2\
---------------------------------------------------------------------------
\1\ Eric Goldman, Internet Law: Cases & Materials 330 (July 14,
2017 ed.).
\2\ Christian M. Dippon, Economic Value of Internet Intermediaries
and the Role of Liability Protections, NERA Consulting, June 5, 2017,
https://cdn1.internetassociation.org/wp-content/uploads/2017/06/
Economic-Value-of-Internet-Intermediaries-the-Role-of-Liability-
Protections
.pdf.
---------------------------------------------------------------------------
* * *
Section 230 has remained essentially unchanged since its
passage,\3\ but that could change imminently--in significant and
troubling ways.
---------------------------------------------------------------------------
\3\ Eric Goldman, WARNING: Draft ``No Immunity for Sex Traffickers
Online Act'' Bill Poses Major Threat to Section 230, Tech. & Marketing
L. Blog, Mar. 25, 2017, http://blog.ericgold
man.org/archives/2017/03/warning-draft-no-immunity-for-sex-traffickers-
online-act-bill-poses-major-threat-to-section-230.htm.
---------------------------------------------------------------------------
Backpage is an online classified service that publishes
prostitution ads. Protected by Section 230s immunity, Backpage has
defeated multiple legal challenges. Frustrated by Backpage's continued
existence, and fueled by anti-trafficking advocates who want Backpage
gone, Congress is considering two bills to amend Section 230. The
Senate bill is Stop Enabling Sex Traffickers Act of 2017 (SESTA), S.
1693,\4\ and the House bill is Allow States and Victims to Fight Online
Sex Trafficking Act of 2017, H.R. 1865.\5\ Both bills have many co-
sponsors.
---------------------------------------------------------------------------
\4\ For more discussion about SESTA, see Eric Goldman, Senate's
``Stop Enabling Sex Traffickers Act of 2017''-and Section 230s Imminent
Evisceration, Tech. & Marketing L. Blog, July 31, 2017, http://
blog.ericgoldman.org/archives/2017/07/senates-stop-enabling-sex-traffic
kers-act-of-2017-and-section-230s-imminent-evisceration.htm.
\5\ For more discussion about H.R. 1865, see Eric Goldman, The
``Allow States and Victims to Fight Online Sex Trafficking Act of
2017'' Bill Would Be Bad News for Section 230, Tech. & Marketing L.
Blog, Apr. 10, 2017, http://blog.ericgoldman.org/archives/2017/04/the-
allow-states-and-victims-to-fight-online-sex-trafficking-act-of-2017-
bill-would-be-bad-news-for-section-230.htm.
---------------------------------------------------------------------------
For simplicity, I'll focus on SESTA's provisions. SESTA would make
three major substantive changes to Section 230s immunity. It would:
(1) Exclude state criminal prosecutions related to sex trafficking
from Section 230s immunity. State attorneys general and other
local prosecutors could prosecute online services for
trafficking-related crimes without any Section 230 limits.
(2) Exclude Federal and state civil causes of action related to sex
trafficking from Section 230s immunity. Sex trafficking victims
(and others) could obtain money judgments and injunctions
against online services.
(3) Expand the scope of the existing Federal crime (and associated
civil claims) of sex trafficking. Section 230 expressly does
not restrict Federal criminal prosecutions, so the U.S.
Department of Justice (DOJ) could pursue a wider range of
prosecutions against online services.
I'm glad that Congress is combating sex trafficking, but SESTA is
not the right policy solution for at least six reasons:
(1) SESTA may not help sex trafficking victims. It might hurt them.
Online prostitution ads are evidence of crimes being committed,
providing a roadmap for law enforcement to find and prosecute
criminals. That has occurred countless times. The ads also can
help rescue sex trafficking victims.\6\ By investigating the
ads, law enforcement and victim advocates have found and
rescued many victims.\7\ SESTA might reduce the visibility of
online prostitution ads; but sex trafficking will still occur,
and so will the marketing of sex with trafficked victims via
less visible means (such as ``walking the streets''). SESTA
will make it harder to find--and rescue--those victims.
---------------------------------------------------------------------------
\6\ Alex F. Levy, How Section 230 Helps Sex Trafficking Victims
(and SESTA Would Hurt Them), Tech. & Marketing L. Blog, Aug. 15, 2017,
http://blog.ericgoldman.org/archives/2017/08/how-section-230-helps-sex-
trafficking-victims-and-sesta-would-hurt-them-guest-blog-post.htm;
Alexandra F. Levy, The Virtues of Unvirtuous Spaces, 50 Wake Forest L.
Rev. 403 (2017).
\7\ For a recent example of a rescue, see People v. Jones, 2017 WL
3633962 (Cal. Ct. App. Aug. 24, 2017), a case involving Craigslist ads.
(2) Congress is fighting sex trafficking on many fronts. Congress is
currently considering more than 30 bills referencing ``sex
trafficking;'' and Congress' prior two sessions each included
over 50 bills referencing ``sex trafficking.'' (Note: an anti-
sex trafficking bill may not reference the term, so the number
of anti-sex trafficking bills may be higher). So SESTA is far
from Congress' only anti-sex trafficking policy option; and
even if Congress doesn't pursue SESTA, Congress can and will
---------------------------------------------------------------------------
redress sex trafficking other ways.
(3) Congress already has statutorily targeted Backpage. The 2015
SAVE Act \8\ created a new Federal crime for publishing online
ads that promote sex trafficking victims. A Federal grand jury
in Phoenix is currently investigating Backpage,\9\ and the SAVE
Act may be part of that investigation (grand jury proceedings
are secret). So the DOJ already may be using the new crime to
achieve Congress' goal without SESTA.
---------------------------------------------------------------------------
\8\ Justice for Victims of Trafficking Act Sec. 118 (2015); see
also Eric Goldman, Backpage Can't Challenge the SAVE Act-Backpage v.
Lynch, Tech. & Marketing L. Blog, Nov. 10, 2016, http://
blog.ericgoldman.org/archives/2016/11/backpage-cant-challenge-the-save-
act-backpage-v-lynch.htm.
\9\ E.g., Sarah Jarvis et al, As Allegations Increase Against
Backpage, Founders Have Become Big Political Donors In Arizona, Ariz.
Republic, Apr. 14, 2017, http://www.azcentral.com/story/news/local/
phoenix/2017/04/14/allegations-increase-against-backpage-founders-have-
become-big-political-donors-arizona/100421528/.
(4) Other crimes may already apply to Backpage. Though Backpage has
had significant success in court, recently a California state
court ruled that Backpage executives must defend charges of
violating state money laundering laws.\10\ Also, in the past
couple of years, the U.S. Department of Justice successfully
prosecuted and shut down two sites publishing online
prostitution ads (Rentboy \11\ and MyRedbook \12\). The DOJ
should be able to deploy similar legal theories against
Backpage.
---------------------------------------------------------------------------
\10\ People v. Ferrer, 16FE024013 (Cal. Superior Ct. Aug. 23,
2017), http://digitalcommons.law
.scu.edu/cgi/viewcontent.cgi?article=2543&context=historical, see also
Eric Goldman, Backpage Executives Must Face Money Laundering Charges
Despite Section 230-People v. Ferrer, Tech. & Marketing L. Blog, Aug.
24, 2017, http://blog.ericgoldman.org/archives/2017/08/backpage-
executives-must-face-money-laundering-charges-despite-section-230-
people-v-ferrer.htm.
\11\ E.g., U.S. v. Easy Rent Systems, Inc., No. 1:16-cr-00045
(E.D.N.Y. Jan. 27, 2016); USA v. Hurant, No. 1:15-mj-00780 (E.D.N.Y.
Aug. 18, 2015).
\12\ E.g., U.S. v. Omuro, No. 3:14-cr-00336 (N.D. Cal. Jun 24,
2014).
(5) No one knows how SESTA would change the law. By reducing Section
230s immunity, SESTA would allow a range of laws to apply to
Internet services for the first time. Which laws? Apparently,
no one knows; I'm unaware of any attempt to inventory those
laws. So what criminal prosecutions and civil claims will be
brought post-SESTA, by whom, and against which services? Again,
---------------------------------------------------------------------------
no one knows.
(6) SESTA would damage the Internet, perhaps radically. We can only
speculate how SESTA might affect the Internet services we know
and love. For example, Airbnb has had numerous issues with
short-term rentals being used for prostitution,\13\ likely
including sex trafficking victims; and it's well-known that
prostitution historically has been advertised on Facebook.\14\
After SESTA, will Airbnb and Facebook look radically different
as they try to avoid substantial criminal and civil liability
exposure?
---------------------------------------------------------------------------
\13\ `My Airbnb Flat Was Turned into a Pop-up Brothel', BBC, Apr.
8, 2017, http://www.bbc.com/news/magazine-39528479.
\14\ Rich Schapiro, Facebook Friends Take on New Meaning as Hookers
Are Said To Be Flocking To Social Networking Site, N.Y. Daily News,
Feb. 27, 2011, http://www.nydailynews.com/news/crime/facebook-friends-
new-meaning-hookers-flocking-social-networking-site-article-1.136789. I
understand that Facebook subsequently undertook additional efforts to
suppress such advertising.
Even if we could figure out how SESTA changes the law today, we
can't contemplate how future state laws will take advantage of the new
regulatory zones enabled by SESTA. Imagine a new state law requires
services to prescreen all third party content to find and block sex
trafficking ads. How would Twitter work with prescreened tweets?
Finally, Section 230 does not distinguish between services that
passively display third party content or actively manage that content:
in both cases, publishers aren't liable for third party content. This
policy allows online services to try to suppress illegal or socially
harmful content without fearing legal exposure for whatever they miss.
In response to SESTA's curtailed Section 230 immunity, many services
probably will reduce their current suppression efforts to avoid having
scienter that would create liability. If that happens, SESTA's attempt
to suppress one type of illegal content will counter-productively cause
the proliferation of illegal and socially harmful content--including,
ironically, the proliferation of online prostitution ads if services
dial back existing suppression efforts.
* * *
The First Amendment is the foundation of free speech in our
society. However, legislators can supplement the First Amendment's
protections. Section 230 is a premier example of speech-enhancing
legislation that enriches the free speech rights of speakers and their
publishers. Undoubtedly, Section 230 has done more to advance free
speech than anything else Congress has done in the past quarter-
century; and Section 230 may be Congress' greatest pro-free-speech
achievement ever. It's hard to believe that Congress would ruin its
free speech masterpiece, but that's exactly what SESTA would do.
______
Attachment 2: SESTA Would Eliminate the Good Samaritan Defense
*
---------------------------------------------------------------------------
\*\ A version of this was first published as Eric Goldman, Sen.
Portman Says SESTA Doesn't Affect the Good Samaritan Defense. He's
Wrong, Tech. & Marketing L. Blog, Aug. 9, 2017, http://
blog.ericgoldman.org/archives/2017/08/senportmansestawrong.htm.
---------------------------------------------------------------------------
When introducing the Stop Enabling Sex Traffickers Act of 2017 (S.
1693), Sen. Portman said (emphasis added):
There are some groups who have been critical of this effort to
hold Backpage accountable and stop this online exploitation.
They have suggested that this bipartisan bill could impact
mainstream websites and service providers--the good actors out
there. That is false. Our bill does not amend, and thus
preserves, the Communications Decency Act's Good Samaritan
provision. This provision protects good actors who proactively
block and screen for offensive material and thus shields them
from any frivolous lawsuits. That is in the legislation and
needs to be in there.\1\
---------------------------------------------------------------------------
\1\ Cong. Record S4671 (Aug. 1, 2017), https://www.gpo.gov/fdsys/
pkg/CREC-2017-08-01/pdf/CREC-2017-08-01-pt1-PgS4669.pdf#page=3.
This positioning makes it sound like websites who object to SESTA
are overreacting. Why should they complain if they still have immunity?
Unfortunately, Sen. Portman's statement is wrong.
Section 230 has two main operative provisions. Section 230(c)(1)
says websites aren't liable for third party content. Section 230(c)(2)
says websites aren't liable for filtering content they consider
offensive. Sen. Portman's statement indicates that he thinks SESTA
would create new exclusions only to Section 230(c)(1) and would not
amend 230(c)(2). However, the bill clearly changes both 230(c)(1) and
230(c)(2) equally.
Section 230(e) enumerates four modifications to the immunity,
including Section 230(e)(1), which the bill would amend to read (new
language bolded):\2\
---------------------------------------------------------------------------
\2\ S. 1693 Sec. 3(a).
Nothing in this section shall be construed to impair (A) the
enforcement of section 223 or 231 of this title, chapter 71
(relating to obscenity) or 110 (relating to sexual exploitation
of children) of title 18, Section 1591 (relating to sex
trafficking) of that title, or any other Federal criminal
statute or (B) any State criminal prosecution or civil
enforcement action targeting conduct that violates a Federal
criminal law prohibiting (i) sex trafficking of children; or
(ii) sex trafficking by force, threats of force, fraud, or
---------------------------------------------------------------------------
coercion.
The bill also would create a new Section 230(e)(5):\3\
---------------------------------------------------------------------------
\3\ Id.
No effect on civil law relating to sex trafficking. Nothing in
this section shall be construed to impair the enforcement or
limit the application of section 1595 of title 18, United
---------------------------------------------------------------------------
States Code.
The added language to Section 230(e)(1) and the new Section
230(e)(5) would expose Internet services to countless new enforcement
actions by state law enforcement and civil plaintiffs.\4\ Notice how
both Section 230(e)(1) and the proposed Section 230(e)(5) start off
with the statement: ``Nothing in this section shall be construed to
impair . . .'' The only possible reading of ``nothing in this section''
is that it refers to all of Section 230, including both Section
230(c)(1) and (c)(2). I didn't find any cases interpreting what ``this
section'' means, but I found several cases implying that Section
230(c)(2) defenses are subject to Section 230(e)'s exceptions.\5\
Applying standard methods of statutory construction, Section 230(c)(1)
and (c)(2) are equally affected by the existing and proposed Section
230(e) exceptions. As a result, Section 230(c)(2) would not limit any
new enforcement actions unleashed by the proposed amendments.
---------------------------------------------------------------------------
\4\ Eric Goldman, Senate's ``Stop Enabling Sex Traffickers Act of
2017''-and Section 230s Imminent Evisceration, Tech. & Marketing L.
Blog, July 31, 2017, http://blog.ericgoldman.org/archives/2017/07/
senates-stop-enabling-sex-traffickers-act-of-2017-and-section-230s-
imminent-evisceration.htm.
\5\ See, e.g., e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d
605 (N.D. Ill. 2008); Holomaxx Technologies v. Microsoft Corp., 783 F.
Supp. 2d 1097 (N.D. Cal. 2011); Milo v. Martin, 311 S.W.3d 210 (Tex.
Ct. App. 2010) (concurring opinion); Davis v. Motiva Enterprises,
L.L.C., 2015 WL 1535694 (Tex. Ct. App. Apr. 2, 2015).
---------------------------------------------------------------------------
[Caveat 1: A 2001 district court opinion contains a sentence
saying: ``Immunizing Mindspring from Plaintiff's claims, therefore,
would ``limit'' the laws pertaining to intellectual property in
contravention of Sec. 230(c)(2).'' \6\ Although this language seemingly
confirms my analysis, I believe the Section 230(c)(2) reference is a
typo. The court meant to say 230(e)(2).\7\]
---------------------------------------------------------------------------
\6\ Gucci America v. Hall & Associates, 135 F. Supp. 2d 409
(S.D.N.Y. 2001).
\7\ Ford Motor v. GreatDomains.com, 2001 WL 1176319 (E.D. Mich.
Sept. 25, 2001) noted this error, and corrected it, when quoting the
Gucci opinion's language.
---------------------------------------------------------------------------
[Caveat 2: a few cases, including the Seventh Circuit's Doe v. GTE
\8\ and Chicago Lawyers' Committee for Civil Rights Under Law v.
Craigslist \9\ cases, have suggested that Section 230(c)(1) acts as a
definitional section for Section 230(c)(2). These cases make a strained
reading of the statute, but they also would further undermine Sen.
Portman's statement because, under this reading, Section 230(c)(2)
would be the only operational immunity the bill could amend.]
---------------------------------------------------------------------------
\8\ Doe v. GTE Corp, 347 F.3d 655 (7th Cir. 2003).
\9\ Chicago Lawyers' Committee For Civil Rights Under Law v.
Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008); see also Eric Goldman,
Craigslist Gets Seventh Circuit 230 Win in Fair Housing Act Case-
Chicago Lawyers' Committee v. Craigslist, Tech. & Marketing L. Blog,
Mar. 14, 2008, http://blog.ericgoldman.org/archives/2008/03/
craigslist_gets.htm.
---------------------------------------------------------------------------
Because I don't see any possible way of interpreting the statutory
language to say that Section 230(c)(2) is subject to different
exclusions than Section 230(c)(1), Sen. Portman's claims to the
contrary appear to be a misreading of the existing statute or a
misunderstanding of how the bill fits into the existing statutory
language. Either way, Congress could easily effectuate Sen. Portman's
claim through different drafting. Instead of preceding Section
230(e)(1) and (e)(5) with ``Nothing in this section . . .'' the
amendment could say ``Nothing in Section 230(c)(1) . . .'' thereby
making Section 230(c)(2) not subject to those exclusions.
There is another problem with Sen. Portman extolling Section
230(c)(2)'s protection: it's basically a defunct safe harbor \10\ that
does not provide much protection from ``frivolous'' lawsuit. Unlike
Section 230(c)(1), Section 230(c)(2) has a good faith requirement,
i.e., to qualify for the safe harbor, the website's filtering decisions
must be made in good faith. Plaintiffs can, and routinely will, allege
that the defendant made a filtering decision in subjective bad faith,
and courts routinely let those generic and unsupported allegations
defeat a motion to dismiss. Thereafter, plaintiffs can do expensive and
intrusive discovery into the website's subjective intent, raising
defense costs substantially and extending the case to summary judgment
or possibly a trial.\11\ As a result, few if any websites actually rely
on Section 230(c)(2)'s protection; everyone relies on Section
230(c)(1). Indeed, we've recently seen filtering cases--where Section
230(c)(2) clearly should have applied--decided on 230(c)(1) grounds
instead.\12\ It appears Sen. Portman may not appreciate how Section
230(c)(2) has effectively failed in the field.
---------------------------------------------------------------------------
\10\ See generally Eric Goldman, Online User Account Termination
and 47 U.S.C. Sec. 230(c)(2), 2 U.C. Irvine L. Rev. 659 (2012), https:/
/ssrn.com/abstract=1934310.
\11\ E.g., e-ventures Worldwide v. Google, Inc., 2:14-cv-00646-PAM-
CM (M.D. Fla. Feb. 8, 2017); see also Eric Goldman, First Amendment
Protects Google's De-Indexing of ``Pure Spam'' Websites-e-ventures v.
Google, Tech. & Marketing L. Blog, Feb. 9, 2017, http://
blog.ericgoldman.org/archives/2017/02/first-amendment-protects-googles-
de-indexing-of-pure-spam-websites-e-ventures-v-google.htm.
\12\ See, e.g., Sikhs for Justice ``SFJ'', Inc. v. Facebook, Inc.,
144 F. Supp. 3d 1088 (N.D. Cal. 2015), aff'd, No. 15-17441 (9th Cir.
Sept. 13, 2017); see also Eric Goldman, Facebook Can Legally Block
Pages Without Any Explanation--Sikhs For Justice v. Facebook, Tech. &
Marketing L. Blog, Nov. 30, 2015, http://blog.ericgoldman.org/archives/
2015/11/facebook-can-legally-block-pages-without-any-explanation-sikhs-
for-justice-v-facebook-forbes-cross-post.htm.
---------------------------------------------------------------------------
I hope this essay helps explain why so many in the Internet
community have expressed grave concerns about SESTA's effects despite
Sen. Portman's efforts to marginalize the concerns. The sponsors
apparently think the bill wouldn't change Section 230 for ``good
actors'' when, in fact, it would eviscerate the immunity.
Senator Sullivan [presiding]. Thank you, Professor Goldman.
Ms. Souras.
STATEMENT OF YIOTA G. SOURAS, SENIOR VICE PRESIDENT AND GENERAL
COUNSEL, THE NATIONAL CENTER FOR
MISSING AND EXPLOITED CHILDREN
Ms. Souras. Thank you, Chairman Thune, Ranking Member
Nelson, and members of the Committee. I am honored to be here
today on behalf of the National Center for Missing and
Exploited Children.
First, let me say how pleased I am to appear alongside
NCMEC's valued partners representing law enforcement and the
technology industry. NCMEC could not sustain its mission to
protect children without the heroic efforts of law enforcement
to remove children from danger and prosecute those who harm
them, including the ongoing work of Attorney General Becerra to
protect children and the prosecution of Backpage.com.
Just as important are the significant contributions of the
technology industry to support child safety online. Technology
companies such as Google, Facebook, Microsoft, and others have
devoted tremendous resources to reduce child sexual
exploitation on their platforms.
NCMEC has been designated by Congress as the national
clearinghouse on issues relating to missing and exploited
children, including victims of child sex trafficking. Based on
our experience, NCMEC has endorsed the Stop Enabling Sex
Traffickers Act, or SESTA. SESTA will ensure access to justice
for child sex trafficking victims and hold online entities
legally responsible when they knowingly assist trafficking a
child.
At NCMEC, we are confronted daily with the reality that
children are trafficked for sex, and this crime increasingly
occurs on the Internet. So far this year, we have received more
than 9,700 reports of suspected child sex trafficking to our
CyberTipline. Over the past 5 years, 81 percent of NCMEC's
child sex trafficking reports have related to the trafficking
of a child for sex online. More than 73 percent of these
reports from members of the public concern an advertisement on
Backpage.com.
Under current law, websites can commit these crimes with
virtual impunity even when knowingly facilitating the
trafficking of a child. In case after case, child sex
trafficking victims have been deprived of their day in court
against every entity, including websites, that knowingly
support their trafficking.
Congress has acted to protect children from sex trafficking
through the Trafficking Victims Protection Reauthorization Act,
or TVPRA, and every state has a corresponding trafficking
statute. However, these laws have proven inadequate based on
the courts' current interpretation of the Communications
Decency Act.
Congress enacted the CDA over 21 years ago to protect
online companies from liability when they host third-party
content or engage in good-faith efforts to regulate explicit
material. Courts have struggled and failed to reconcile the
CDA's narrow immunity with the TVPRA's criminalization of sex
trafficking.
Over the past 7 years, over 20 legal cases have been filed
involving Backpage.com. Time and time again, courts have
acknowledged the horror of the allegations made by child sex
trafficking victims, but held themselves powerless to act under
the CDA.
Courts across the country have called on Congress to
clarify the intersection between valuable CDA immunities and
the strong laws against human sex trafficking. NCMEC has worked
closely with children victimized by online sex trafficking
whose cases have been dismissed based on the CDA. We have
witnessed the anguish of these children suffering and have
heard their hopelessness when the courts dismiss their cases.
We can't rely on a 1996 law to solve a 21st century problem. We
need to be smarter and more sophisticated in protecting
children, and this is the approach SESTA takes. It is also why
SESTA is the first bill to amend the CDA that NCMEC has
endorsed.
We believe SESTA strikes an important balance between
providing victims their day in court while sustaining the
underlying protections of the CDA. NCMEC supports SESTA because
it clarifies: first, that child sex trafficking victims may
seek civil remedies against online entities that knowingly
supported their trafficking; second, that state attorneys
general may protect children in their own communities by
prosecuting online entities that knowingly supported
trafficking; and, third, that online entities may be liable for
trafficking if they knowingly support, assist, or facilitate
the trafficking of a child for sex.
We are encouraged by the continuing dialogue, including at
this hearing, to further understanding of the proposed
legislation and ensure it fulfills its mission to protect
children. We welcome the opportunity to provide additional
support as SESTA moves through this process and look forward to
continuing to work with you on these very important issues.
[The prepared statement of Ms. Souras follows:]
Prepared Statement of Yiota G. Souras, Senior Vice President and
General Counsel, The National Center for Missing and Exploited Children
Chairman Thune, Ranking Member Nelson, and Members of the
Committee, I am honored to be here today on behalf of The National
Center for Missing and Exploited Children (``NCMEC'').
First, let me say how pleased I am to appear alongside NCMEC's
valued partners representing law enforcement and the technology
industry. NCMEC could not sustain its mission to protect children
without the heroic efforts of law enforcement to remove children from
danger and prosecute those who harm them. Just as important are the
significant contributions and voluntary efforts of the technology
industry to support child safety online. For many years, technology
companies such as Google, Facebook, Microsoft and many others have
devoted tremendous resources to reduce online child sexual exploitation
on their platforms. We share a collective interest in strengthening the
laws and technical tools that can be used to further NCMEC's work to
save children from sexual exploitation and prevent children from being
victimized by sex trafficking.
Based on NCMEC's mission to reduce child sexual exploitation and
prevent child victimization, we have endorsed the Stop Enabling Sex
Traffickers Act of 2017 (``SESTA''). SESTA uniquely addresses a legal
loophole that once closed will ensure justice for child sex trafficking
victims and hold legally responsible entities that knowingly assist the
trafficking of a child for sex online. NCMEC hopes that following this
hearing we can work together to ensure this legislation moves quickly
forward and our Nation's most vulnerable victims have the legal
protections they so urgently need.
NCMEC History
NCMEC was created in 1984 by John and Reve Walsh and other child
advocates as a private, non-profit organization. It has been designated
by Congress to serve as the national clearinghouse and to provide a
coordinated, national response to problems relating to missing and
exploited children. NCMEC works with families, victims, private
industry, law enforcement, and the public to assist with preventing
child abductions, recovering missing children, and providing services
to deter and combat child sexual exploitation. More specifically to
today's hearing, NCMEC serves as a national clearinghouse for reports
relating to child sex trafficking and assists law enforcement, first
responders, and victim specialists relating to the identification,
location, and recovery of child sex trafficking victims.
Online Child Sex Trafficking
Child sex trafficking is a pervasive and underreported crime. Every
year, thousands of children from across the United States are
trafficked, sold for sex, repeatedly raped, and suffer traumatic
physical, sexual, and emotional abuse. Child sex trafficking involves
the rape or other sexual abuse of a child in exchange for something of
value. There is no legal protection for selling, facilitating the sale
of, or benefiting financially from the sale of a child for rape or
sexual abuse. There is no situation in which child sex trafficking
could be considered legal or an activity between consenting adults.
Technology has fundamentally changed how children are victimized
through sex trafficking in ways that would have been unimaginable just
a few years ago. An adult can now shop from the privacy of his home or
hotel room, often on a cell phone, to buy a child for rape. Traffickers
lure and recruit children online. Websites can be used to create
virtual marketplaces on which predatory offenders can peruse a variety
of sexual experiences being offered for sale, including with children,
and complete their purchase online.
As the national resource center on missing and exploited children
issues, NCMEC has learned a great deal about child sex trafficking.
NCMEC operates the CyberTipline to provide the public and electronic
service providers with an efficient method of reporting incidents of
suspected child sexual exploitation, including child sex trafficking.
So far in 2017, NCMEC has received more than 9,700 reports of suspected
child sex trafficking to the CyberTipline. Because there is no
mandatory requirement for reporting child sex trafficking to NCMEC, we
believe the reports NCMEC receives reflect only a small fraction of the
large number of children trafficked online each year.
The crime of child sex trafficking has increasingly expanded to the
internet. Traffickers have learned that by leveraging the power of the
internet, they can more easily recruit, control and sell children for
sex. Some website operators have also recognized the enormous
profitability of creating online platforms to facilitate the sale of
adults and children for sex. Over the past five years, 81 percent of
NCMEC's reports regarding child sex trafficking relate to the sex
trafficking of a child online. More than 73 percent of reports relating
to child sex trafficking made by members of the public to NCMEC concern
a Backpage.com advertisement. This trend will continue so long as
online classified ad websites are able to knowingly assist human sex
traffickers market children for sale for sex to a range of online
customers.
At NCMEC, we are confronted daily with the reality that children
are being trafficked for sex online. Under current law, these crimes
can be committed with virtual impunity for websites that knowingly
facilitate the trafficking of a child. In case after case, child sex
trafficking victims are failing to have their voices heard and are
being deprived of their day in court against every entity that
knowingly supported their trafficking, because of the legal protections
provided to these entities under current law. SESTA narrowly addresses
these judicial barriers and ensures that child victims have full rights
to seek redress for the harm done to them.
The Courts' Struggles to Reconcile Trafficking Laws and the
Communications Decency Act
Congress has acted to protect children from being trafficked for
sex by enacting the Trafficking Victims Protection Reauthorization Act
(``TVPRA''). The TVPRA establishes human trafficking as a Federal crime
and recognizes the unique vulnerability of children to trafficking by
imposing severe penalties on anyone who knowingly recruits, harbors,
transports, provides, advertises or obtains a child for a commercial
sex act or who benefits financially from such an act. Every state has
an equivalent statute available to state prosecutors to bring to
justice those who traffic children for sex. These laws have been used
effectively to prosecute traffickers who conduct their business on the
streets, in hotels, casinos or at truck stops. However, these laws have
proven inadequate when a website participates in a venture to traffic
children due to the Communications Decency Act (``CDA''), a law that
predates the TVPRA.
The CDA was enacted by Congress in 1996 to protect online companies
from liability when they host third party content or engage in good
faith efforts to regulate explicit material on their platforms.
Unfortunately, courts have struggled, and failed, to reconcile the
purpose of the immunity provided by the CDA with the mission of the
TVPRA to criminalize the sex trafficking of children. This legal
conflict has been building for years. The most frequent result is that
children who have suffered undeniable and unimaginable harm, are
completely barred from seeking judicial relief against a knowing online
facilitator of their trafficking. As a further complication, courts
have been uncertain regarding how to define what it means to benefit
from ``participation in a venture'' of trafficking under the TVPRA,
which is a significant element to prove in a trafficking case involving
an online website.
Over the past seven years, over 20 legal cases have been initiated
involving Backpage.com. The majority of these cases involve child
victims who sought judicial damages against Backpage.com or state
legislatures compelled to defend attempts to enact stronger laws to
protect children from being trafficked for sex online. Time and time
again in these cases, courts acknowledged the horror of the allegations
made regarding the child victims' trafficking, but determined
themselves powerless to act under the CDA.
The child sex trafficking victims who have been denied relief due
to the CDA include:
A 14-year old child who was trafficked online for two years
and advertised with photos displaying her private body parts in
sexually exploitive poses.
A 15-year old child who estimates she was raped over 1,000
times while trafficked on Backpage.com for a year and a half.
A 15-year old child who was trafficked for two years with
ads posted on Backpage.com an average of six times a day with
five to fifteen customers a day.
Unfortunately, these victims are not unique. NCMEC has managed tens
of thousands of cases where children have been bought and sold by the
commercialization of child sex trafficking online.
Courts Call on Congress to Clarify the CDA's Application in Child Sex
Trafficking Cases
The judicial system has become increasingly aware that children are
inadequately protected, and state prosecutors limited, when an online
website (rather than a brick-and-mortar operation) is participating in
a trafficking venture. Even when dismissing victims' trafficking claims
on legal grounds, both criminal and civil courts have consistently
called on Congress to clarify that there is no legal protection for
those who facilitate the trafficking of children for sex online.
Further, both criminal and civil courts have reluctantly dismissed
online sex trafficking charges against Backpage.com, while bemoaning
the lack of clarity in how they must apply the CDA.
For example, last year the Sacramento Superior Court dismissed
criminal pimping charges against Backpage.com, while recognizing the
vital issues at stake:
[T]he Court understands the importance and urgency in waging
war against sexual exploitation. Regardless of the grave
potential for harm that may result in the exercise of this
article of faith, Congress has precluded liability for online
publishers for the action of publishing third party speech and
thus provided for both a foreclosure from prosecution and an
affirmative defense at trial. Congress has spoken on this
matter and it is for Congress, not this Court, to revisit.
Also last year, the First Circuit Court of Appeals dismissed
trafficking charges in a civil case after recognizing the failure of
the statutes to provide an adequate means to protect children and hold
online sex traffickers liable because of the CDA:
``This is a hard case--hard not in the sense that the legal
issues defy resolution, but hard in the sense that the law
requires that we, like the court below, deny relief to
plaintiffs whose circumstances evoke outrage . . . The
appellants' core argument is that Backpage has tailored its
website to make sex trafficking easier. Aided by the amici, the
appellants have made a persuasive case for that proposition.
But Congress did not sound an uncertain trumpet when it enacted
the CDA, and it chose to grant broad protections to Internet
publishers. Showing that a website operates through a
meretricious business model is not enough to strip away those
protections. If the evils that the appellants have identified
are deemed to outweigh the First Amendment values that drive
the CDA, the remedy is through legislation, not through values
that drive the CDA, the remedy is through legislation, not
through litigation.
Most recently, less than a month ago, the Sacramento Superior Court
again dismissed criminal pimping charges and bluntly assessed its view
of the current state of CDA law to immunize a website from online sex
trafficking:
If and until Congress sees fit to amend the immunity 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.
NCMEC's Support of SESTA
NCMEC has worked closely with children victimized by online sex
trafficking, their families, attorneys and prosecutors in many of the
cases where child sex trafficking claims have been dismissed under the
courts' interpretation of the CDA. Through our work, we have witnessed
the anguish of their recovery and the long-lasting trauma their
families suffer. We also have heard their hopelessness when their legal
efforts to hold responsible websites that knowingly facilitated the
crimes against them are dismissed by the court.
Congress has now heard these children's voices as well. NCMEC
applauds the introduction of SESTA by Senators Rob Portman and Richard
Blumenthal, and their 26 bi-partisan co-sponsors, to address the legal
roadblocks that child victims have faced. NCMEC's support for SESTA is
reflective of our mission to combat the sexual exploitation of
children, including the pernicious monetization of children for sex
trafficking on websites, such as Backpage.com.
NCMEC supports SESTA, the first such bill that NCMEC has supported
proposing a clarification of the CDA, because the goals of the
legislation are sufficiently narrow to help ensure justice for child
sex trafficking victims and clarify remedies available to civil
attorneys and state Attorneys General to assist victims in holding
every entity that knowingly participated in their trafficking. We
believe SESTA strikes an important balance between providing sex
trafficking victims the opportunity to hold everyone actively
participating in their victimization accountable with the need to
continue encouraging innovation of technology on the internet.
NCMEC is fundamentally aware that combatting child sex trafficking
is a multi-faceted problem. SESTA will not put an end to online child
sex trafficking. No single solution can accomplish this. But it will
provide an essential tool to providing legal rights to child sex
trafficking victims and ensuring that online entities that participate
in the trafficking of a child are not legally immune for their crimes.
Because Backpage has been for years one of the largest facilitators
of online sex trafficking ads, it is not surprising that Backpage has
been the focus of civil, criminal, and legislative efforts to curtail
sex trafficking on the site. Backpage has shown that children can be
trafficked for sex online through a functionally simple and wildly
lucrative website, while both criminal and civil courts have
demonstrated that a loophole exists that enables this type of website
to invoke the immunity under the CDA. NCMEC is aware that there are
many other websites on which children are trafficked for sex. If
Backpage ultimately closes because of any of the pending legal actions,
another website or multiple websites will surely fill the marketplace
that Backpage currently dominates. SESTA's narrow goals are intended to
make certain that the CDA's ongoing protections enjoyed by a robust
Internet industry will not extend to next generation platforms like
Backpage.com that knowingly assist, support, or facilitate child sex
trafficking.
SESTA narrowly focuses on criminal conduct--the sale of a child for
sex--which does not implicate the First Amendment or the Good Samaritan
exception under Section 230. The legislation will clarify that immunity
under the CDA is not extended to actual criminal conduct--the knowing
facilitation, assistance or support of trafficking--while maintaining
the CDA's core publisher protections for the mere publication of third
party content or the good faith removal of objectionable online
material. The balancing of interests here involves the rights of child
sex trafficking victims who are denied access to justice versus
clarifications to the CDA twenty-one years after its enactment.
Additionally, given the volume of this criminal activity online and
the impact on state and local communities, State Attorneys General
should be able to prosecute websites that knowingly assist the sex
trafficking of children within their state which SESTA provides.
We believe that SESTA provides essential clarifications to an
important statute and are encouraged that well-intentioned dialogue is
continuing in an effort to understand the proposed legislation and
ensure it fulfills its mission to protect children, including today's
hearing.
Conclusion
Thank you for the opportunity to provide the Committee with
information on NCMEC's role in combating online child sex trafficking
and our support for SESTA. As the Nation's clearinghouse on missing and
exploited children issues, NCMEC's sole priority is to protect the
interests of children victimized by sexual exploitation. SESTA would be
a powerful tool to further the rights of child victims consistent with
NCMEC's mission while protecting the provisions of the law that
encourage a healthy and robust internet. We are aware that technology
companies and other advocates have been meeting with sponsors of the
bill to discuss this proposed legislation.
We welcome the opportunity to provide additional support as SESTA
moves through the legislative process and look forward to continuing to
work with you on these very important issues.
Senator Sullivan. Thank you, Ms. Souras.
Ms. Slater.
STATEMENT OF ABIGAIL SLATER, GENERAL COUNSEL, INTERNET
ASSOCIATION
Ms. Slater. Chairman Thune, Ranking Member Nelson, and
members of the Committee, thank you for inviting me to testify.
My name is Abigail Slater, and I am General Counsel at Internet
Association, which represents more than 40 of the world's
leading Internet companies.
On a personal note, if I may, I would like to acknowledge
the testimony of Mrs. Ambrose here today and to convey my
sympathy to her on her loss of her daughter, Desiree. No family
should have to suffer what Mrs. Ambrose's family suffered.
There are three overarching points I would like to make
today. First, the legitimate Internet companies that Internet
Association represents are 100 percent committed to the fight
against sex trafficking. Our objective is to help stop these
crimes from ever occurring in the first place so that there are
no more victims. For this reason, we support targeted
legislative changes, including changes to the Communications
Decency Act, that would allow victims and survivors to seek
justice against bad actors that knowingly facilitate sex
trafficking.
As one of the mothers interviewed in the ``I am Jane Doe''
documentary so pointedly stated, ``I want my daughter to hold
her head up high and know that none of this was her fault.''
Everyone at this table should share this mother's sentiment.
On this note, following the Senate's groundbreaking PSI
report from earlier this year, a grand jury was convened in
Phoenix to look at Backpage.com's conduct under existing
Federal criminal law, and we agree that it's time to bring
Backpage to justice.
The second point I'd like to make today is that legitimate
Internet companies are key partners in the fight to combat sex
trafficking. They are part of any solution to this problem, and
the partnership between law enforcement and companies is key to
ending the underlying criminal behavior.
This partnership manifests in several ways.
First, legitimate Internet companies have robust community
guidelines, internal policies, and proactive enforcement
practices to remove content that promotes sex trafficking.
After all, the power of good actors online is in many contexts
often the most powerful tool against bad actors online.
Second, legitimate Internet companies have long since
partnered with non-governmental organizations, such as NCMEC,
to combat sex trafficking. These efforts harness both our
companies' financial resources as well as their engineering
talent to help develop technological tools used to combat this
heinous crime.
I elaborate on these tools in detail in my written
testimony, but I did want to highlight one in particular. It's
the Spotlight tool developed by Thorn with support from several
IA member companies. Spotlight is a web-based application used
to detect and help rescue victims of sex trafficking. Today,
Spotlight is used by 4,000 law enforcement officers at over 700
agencies nationwide. More importantly, it has been used to
identify over 2,000 perpetrators of sex trafficking.
Understanding the positive role such as that developed at
Thorn plays in providing solutions to sex trafficking brings me
to my third, and final, point; namely, that legislation
undermining the ability of legitimate Internet companies to do
the right thing and invest in innovations and best practices
that target criminal activity will only weaken our fight
against this heinous crime.
SESTA is a well-intentioned response to a terrible
situation. Unfortunately, as currently drafted, SESTA
introduces overly broad concepts of criminal and civil
liability that create legal uncertainty and risk for legitimate
actors. My written testimony provides greater detail, but I
will provide a few key concerns which SESTA has currently
drafted and how it interfaces with Section 230 of the
Communications Decency Act for your consideration.
First, we are concerned that SESTA creates a vague
knowledge standard that will skew incentives for good online
actors to keep in place their existing efforts to combat
crimes, including sex trafficking, for fear of legal liability.
Second, we are concerned that SESTA creates overly broad
and unchartered state jurisdiction over well-intentioned online
actors, both large and small.
And, finally, we are concerned that SESTA opens up
liability for frivolous lawsuits that do little for victims of
sex trafficking.
While we acknowledge that reasonable minds can and do
differ, I should add for the record that these concerns are the
consensus position of many industry experts and legal scholars,
as well as civil society groups, who share our concerns about
SESTA.
Internet Association submits that a more tailored bill that
truly targets actors such as Backpage.com without undermining
the ability of legitimate actors to help combat sex trafficking
is possible, and we stand ready to work with the Committee
toward this goal.
In conclusion, I want to be clear, we do not have to choose
between justice against Backpage.com and protecting legitimate
online services. This is not a binary choice. There is also no
single solution. The fight against sex trafficking requires a
multipronged approach and a committed partnership between the
government and private sector.
Again, thank you for allowing me to testify, and I look
forward to your questions.
[The prepared statement of Ms. Slater follows:]
Prepared Statement of Abigail Slater, General Counsel,
Internet Association
Chairman Thune, Ranking Member Nelson, and members of the
Committee, thank you for inviting me to testify. My name is Abigail
Slater and I am the General Counsel of Internet Association, which
represents more than 40 of the world's leading Internet companies.\1\
Internet Association is the unified voice of the Internet economy. The
Internet creates unprecedented benefits for society, and Internet
Association is dedicated to empowering people through a free and open
internet.
---------------------------------------------------------------------------
\1\ Member list available at https://internetassociation.org/our-
members/.
---------------------------------------------------------------------------
We appreciate the Committee holding this hearing on a topic that
rightfully is at the top of mind for policymakers, our members, and the
public. Sex trafficking is a horrific crime and must be stopped. We
must end the crime of human trafficking in our country, and we must
hold those that facilitate and take part in these crimes, like
Backpage.com, fully responsible under our law. We also support targeted
amendments to the Communications Decency Act that would allow victims
of sex trafficking crimes to seek justice against perpetrators. The
Internet industry stands ready to work with you on legislative
approaches that ensure justice and contribute to the fight against
trafficking.
We believe that our goals are shared and that this hearing can and
should provide a roadmap to achieving those mutual goals. Backpage.com
broke existing law and we agree that it must be fully and quickly
brought to justice for its horrific crimes in the trafficking of
persons for sex. We must work together to combat trafficking and stop
these crimes from ever occurring in the first place. Internet
Association is confident that by working as partners on this issue we
can fully achieve both goals.
To be perfectly clear: our members are an integral part of the
solution. They have a long track record of working with law
enforcement, anti-trafficking groups, and victims to stop illegal
activity.
The Stop Enabling Sex Traffickers Act of 2017 (SESTA) \2\ is a
well-intentioned response to a terrible situation. The crimes committed
through and facilitated by Backpage.com are despicable. Our companies
work with law enforcement every single day to actively take down
illegal content and in an effort to prevent and end trafficking. SESTA,
as it is written, would make our companies liable for all their ongoing
work with law enforcement.
---------------------------------------------------------------------------
\2\ S. 1693 (115th Congress).
---------------------------------------------------------------------------
As part of my testimony,
First, I will outline just some of the ways that Internet
industries are active partners in the fight to combat human
trafficking.
Second, I will provide a short background on Section 230 of
the Communications Decency Act (CDA230), its history and
foundational role in supporting legitimate online actors, and
its applicability to Backpage.com.
Third, I will discuss SESTA and the unintended consequences
of broad legislation in light of CDA230s history and the work
of online services to operate as good actors.
Fourth, I will discuss potential ways forward in crafting a
targeted approach to allowing justice against rogue, illicit
actors without upending legal principles vital to legitimate
industries.
Legitimate online services are committed, key actors in the fight
against human trafficking.
Internet industries are indispensable to the fight to combat
trafficking. Technology is part of the solution, and the partnership
between law enforcement and private sector technology companies is key
to ending the underlying criminal behavior.
Internet companies that make up Internet Association have a zero-
tolerance policy for facilitation of sex trafficking and exploitation
of children. Our companies have robust policies and enforcement
practices to remove all content that promotes sex trafficking. In
addition, our companies partner with non-governmental organizations
across the globe on the prevention of sexual violence and exploitation,
including the National Center for Missing and Exploited Children; the
International Center for Missing and Exploited Children; the
International Women's Forum; End Child Prostitution, Child Pornography
and Trafficking of Children for Sexual Purposes; Thorn; Polaris; and
more.
Beyond significant financial support for organizations on the front
lines of the global fight to end modern day slavery and human
trafficking, technology companies are harnessing their technical
expertise for innovative and groundbreaking technology that is used to
great effect by other companies, law enforcement, and anti-trafficking
groups.
Engineers at companies including Google have worked with Thorn and
the Hovde Foundation to develop a tool called Spotlight, which
harnesses artificial intelligence to comb through millions of ads
online and flag potential child victims. This tool is now used by law
enforcement in all 50 states, and agencies using it have seen a 60
percent reduction in their investigation time. In a single year,
Spotlight helped identify over 6,000 victims and 2,000 traffickers.
With advances in machine learning technology, we can continue to
improve this technology and make it even more broadly available.
In May 2016, Facebook hosted over 75 engineers from across the
industry, including Microsoft and Google, as well as from child safety
NGOs, such as NCMEC, Thorn, and InHope, for the first-ever cross-
industry child safety hackathon to develop tools and products that
enhance child online safety.\3\ The 2017 hackathon expanded in scope
and reach, and one of the prototypes that came out of the hackathon is
a tool that will enable people to match known photos of missing
children against online trafficking ads.
---------------------------------------------------------------------------
\3\ ``Hackathon Creates Tech Solutions for Child Safety,'' Thorn
(2017) available at https://www.wearethorn.org/blog/hackathon-creates-
tech-solutions-child-safety/?utm_campaign=cosche
dule&utm_source=facebook_page&utm_medium=Thorn&utm_content=Hackathon%20C
reates%
20Tech%20Solutions%20for%20Child%20Safety.
---------------------------------------------------------------------------
The Thorn Technology Task Force, which includes 20 technology
companies ranging from Microsoft to Snap, is creating networks of
digital defenders to develop new strategies to fight their adaptive
adversaries.\4\
---------------------------------------------------------------------------
\4\ See Thorn Technology Task Force, available at https://
www.wearethorn.org/about-our-fight-against-sexual-exploitation-of-
children/.
---------------------------------------------------------------------------
Twilio and Salesforce Foundation partnered with Polaris and Thorn
to develop the NHTRC SMS-based textline, which allows victims to text
the shortcode ``BeFree'' for a discreet and time-efficient way to
access the hotline.\5\
---------------------------------------------------------------------------
\5\ ``7 Ways Technology is Fighting Trafficking,'' Forbes.com (Jan.
2016) available at https://www.forbes.com/sites/rebeccasadwick/2016/01/
11/tech-fighting-human-trafficking/#4cb245ce6
cac.
---------------------------------------------------------------------------
Amazon Web Services powers a number of tools, such as the
Federation for Internet Alerts, which provide life-saving child
abduction alerts as well as facial recognition technology that aids
police in the fight against sex trafficking.\6\
---------------------------------------------------------------------------
\6\ ``Police can use this facial recognition technology to fight
sex-trafficking,'' Mashable (2017) available at http://mashable.com/
2017/06/28/facial-recognition-child-sex-trafficking/#o8_T3a
MVCSq8.
---------------------------------------------------------------------------
Match Group is working with THORN to pilot new technology that
would use THORN data to automatically detect users who attempt use
Match Group sites to disseminate information associated with known sex
traffickers and remove them from the sites.
These are just a few of many examples that grow by the day.
Recognizing the role technology plays in providing solutions is key to
understanding why a narrow, targeted approach is the only way to truly
achieve our goals: undermining companies' incentives to experiment and
participate in the innovation that targets criminal activity will only
undermine our fight against trafficking.
Section 230 of the Communications Decency Act and Backpage.com.
Congress passed CDA230 in 1996 as a bedrock legal protection for
online services, ensuring that legitimate businesses can exist by
providing that unknowing intermediaries including platforms, websites,
ISPs, web-hosting providers, and online advertisers are not held liable
for the actions of users. Without this crucial protection, these
service providers would be forced to err on the side of removing their
users' content or face unsustainable liability for their users' content
that would harm the creation of legitimate and diverse online services.
CDA230 remains as crucial today for startups as it was in 1996: the
diversity of services and products today is greater than ever before,
and CDA230s clarity provides a pathway for innovation for legitimate,
responsible new entrants.\7\
---------------------------------------------------------------------------
\7\ See Letter by Copia Institute, Engine, and 30+ startups on S.
1693 (2017) available at https://www.230matters.com/letter.html.
---------------------------------------------------------------------------
Congress struck a key balance in CDA230. CDA230 is not a complete
bar on liability--it allows the U.S. Department of Justice (DOJ) to
prosecute rogue, illicit actors that conduct illegal activity. From its
inception, there have been several clear exemptions to CDA230,
including Federal criminal law, which ensures that that the DOJ is
empowered to prosecute online providers that take part in criminal
activity.\8\ Additionally, it does not apply to information that the
platform operator has itself created or developed, ``in whole or in
part.'' \9\ CDA230 also encourages online services to moderate their
services through the combined protections of 230(c)(1) and 230(c)(2)'s
Good Samaritan clause, which provides an incentive to moderate
offensive, lewd, and/or violent content without the danger of creating
additional liability.
---------------------------------------------------------------------------
\8\ 47 U.S.C. Sec. 230(e)(1)
\9\ 47 U.S.C. Sec. 230(f)(3)
---------------------------------------------------------------------------
It is a Federal crime to sell, solicit, or advertise the sexual
services of persons who have been coerced into commercial sex under 18
U.S.C. Sec. 1591.\10\ Congress has made clear that sex trafficking must
be stopped and that law enforcement actions against perpetrators should
be prioritized. In 2015, in great part due to strong desire to bring
justice against Backpage.com, Congress supplemented an existing statute
on trafficking by ensuring that the knowing advertisement of minors for
commercial sex was a Federal crime.\11\
---------------------------------------------------------------------------
\10\ 18 U.S.C. Sec. 1591
\11\ P.L. 114-22.
---------------------------------------------------------------------------
We also commend the Permanent Subcommittee on Investigations (PSI),
which concluded a twenty-month investigation of Backpage.com and found
that Backpage.com knowingly concealed evidence of criminality by
systematically editing adult advertisements and that Backpage.com
executives knew the website facilitated illegal activity including sex
trafficking of minors.\12\
---------------------------------------------------------------------------
\12\ ``Backpage.com's Knowing Facilitation of Online Sex
Trafficking,'' Permanent Subcommittee on Investigations, United States
Senate (2017).
---------------------------------------------------------------------------
To date, the DOJ has not held Backpage.com accountable for its
actions action under anti-trafficking criminal law. Congress must
ensure the DOJ has the resources and priorities necessary. Backpage.com
is not immune from liability for Federal crimes, including those under
18 U.S.C. Sec. 1591, and U.S. Attorneys must use these and other legal
avenues to undertake immediate and vigorous justice against
Backpage.com for its knowing facilitation of criminal sex trafficking.
State exemptions would create the potential for unpredictable,
inconsistent enforcement against law-abiding intermediaries that
operate without borders.
SESTA's broad approach will harm good actors and undermine our shared
goal of combatting trafficking.
We share the goals of the sponsors and are committed to working
with them to find an effective way forward that provides a mechanism to
hold criminals accountable.
At the outset, it is key to understand that SESTA does not require
that an entity have knowledge of the illegal activity or a means to
stop that activity. Section 4 of the legislation expands the scope of
the term ``participation in a venture'' under current sex trafficking
laws in Title 18 to ``knowing conduct by an individual or entity, by
any means, that assists, supports, or facilitates'' sex trafficking.
The term ``knowing conduct'' is not a defined legal term--it could
include the fact that a platform simply knows that users communicate on
its site. The phrase ``assists, supports, or facilitates'' has no
requirement that an entity know that conduct is taking place, has means
to prevent it, or any other discernible limitation. The term
``facilitate'' is extremely broad; courts have defined it to mean ``to
make easier or less difficult.'' \13\ This means that a prosecutor
could simply allege that the use of a platform for coded communication
connected to trafficking, without knowledge by the platform,
facilitated sex trafficking; because the platform knows that users
communicate generally on the site, a prosecutor would have to go no
further in introducing cause for liability.
---------------------------------------------------------------------------
\13\ United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir. 1985).
---------------------------------------------------------------------------
SESTA would introduce new legal risk not just for Internet services
that do not knowingly and intentionally facilitate illegal conduct, but
also create risk for an incredibly broad number of innocent businesses
by expanding the notion of contributory liability. SESTA would hold
potentially liable any entity that can be said to benefit from its role
in facilitating a sex trafficking violation, even if it has no
knowledge that it is doing so or no practical way of terminating such
assistance.
Under the regime of liability without knowledge or participation in
the criminal activity, SESTA introduces new risks under CDA230 by
creating state criminal and civil exemptions, as well as Federal civil
exemptions. It is not hard to imagine that opportunistic lawyers will
bring a deluge of frivolous litigation targeting legitimate, law-
abiding intermediaries, as civil liability is unbounded by any actual
knowledge or participation in trafficking.
Key to the discussion of state-level exemption is that (1) there is
no data on the current criminal and civil laws that would be exempt to
CDA230 under this bill and (2) there is no full understanding or
limitation of the types of laws that may be passed to introduce
liability on online services providers unconnected to the true,
knowledgeable facilitation of sex trafficking.\14\ CDA230s exclusion of
state liability is appropriate. The Internet is a borderless medium,
and the potential for inconsistent regulation and liability untethered
to the fight against trafficking is counterproductive to the intended
goals of the legislation.
---------------------------------------------------------------------------
\14\ See Goldman, Eric, ``Senate's ``Stop Enabling Sex Traffickers
Act of 2017''--and Section 230s Imminent Evisceration'' (2017)
available at http://blog.ericgoldman.org/archives/2017/07/senates-stop-
enabling-sex-traffickers-act-of-2017-and-section-230s-imminent-
evisceration.htm (discussing the potential for state laws not germane
to the goal of combating trafficking under SESTA).
---------------------------------------------------------------------------
SESTA will not only risk the development of innocent online
services key to the fight against trafficking, but threatens to be
counterproductive to the stated goals. The proposed legislation does
not address the underlying criminal behavior and playing whack-a-mole
with URLs/domains in civil courts is unlikely to stop bad actor
websites that will simply move overseas and change their URLs to avoid
being shut down. Undermining the balance struck in CDA230 encourages
the opposite behavior desired. It will create the incentive for
providers not to look for evidence of trafficking and to cease
proactively eliminating illegal and unsavory content, including by
chilling the development of technological measures to address such
content, as any such action could implicate civil and criminal causes
of action.
Introducing new ambiguity into CDA230 would send a dangerous signal
to other countries that are seeking to require U.S. Internet services
to filter dissenting political speech and allegations of corruption.
We encourage Congress to target underlying criminal behavior that
will be effective in preventing trafficking and protecting victims. I
return to the point made at the outset of my testimony: while we are
deeply concerned about the broad nature of SESTA, we strongly support
its intended purpose, and stand ready to work with the Committee and
the sponsors of the legislation on achieving justice without risking
the harms that would be realized under such a wide approach.
A narrow approach tailored to the goal of ensuring justice for victims
will best serve the goal of combatting trafficking.
Ensuring justice against Backpage.com is possible without
undermining all the work currently underway to stop online sex
trafficking. We do not have to choose between justice against
Backpage.com and protecting legitimate online services.
There is also no single solution. The fight against trafficking
requires a multipronged approach and a committed partnership between
the government and private sector. To start, we urge the DOJ to
prioritize prosecutions of criminal actors in violation of Federal sex
trafficking law, which is already exempt from CDA230. This includes
immediate action based on the July 2017 referral of PSI's investigation
to the DOJ.\15\
---------------------------------------------------------------------------
\15\ See Portman, Carper, McCaskill Send DOJ Criminal Referral for
Backpage.com available at https://www.portman.senate.gov/public/
index.cfm/press-releases?ID=6CF2AC67-EDB1-4F13-9372-C13D9C6E5D9F.
---------------------------------------------------------------------------
I would also like to highlight several areas we believe may be
worth this Committee's attention for further exploration.
If clarification under Title 18's reference to ``participation in a
venture'' is necessary to the Federal accountability for rogue actors,
we welcome language that clarifies the definition offered in SESTA to
include a knowledge standard for ``assist[ing], facilitat[ing], or
support[ing]'' trafficking.
Lastly, we understand that exploring exemptions to CDA230 to allow
for justice sought by victims is a key aspect of the reason we are here
today. Under 18 U.S.C. 1595, victims are able to seek civil action
against perpetrators of sex trafficking crimes.\16\ A tailored
amendment that ensures civil suits were brought against online actors
that acted with knowledge and intent is worth consideration.
---------------------------------------------------------------------------
\16\ 18 U.S.C. 1595
---------------------------------------------------------------------------
Conclusion
The Internet community stands ready to work with this Committee and
the sponsors of the legislation on targeted approaches that not only
bring justice against Backpage.com, but also support the ongoing fight
against sex trafficking.
Thank you for allowing me to testify on this critical matter.
Senator Sullivan. Thank you, Ms. Slater.
And we appreciate the testimony of all the witnesses on
this critically important issue.
Senator Nelson.
Senator Nelson. Thank you, Mr. Chairman.
General Becerra, let's just get right to the nub of the
question. The opponents of the bill argue that it's not
necessary to modify Section 230, which would allow state and
local law enforcement and victims to pursue those who assist
and facilitate online sex trafficking. The opponents argue that
the existing statute already provides justice with adequate
authority in order to go after those wrongdoers. Rebut that
argument so we can pass this bill.
Mr. Becerra. Senator, I would ask each and every one of you
to come to Sacramento with me, where we are right now in
prosecution of Backpage. We filed 36 counts against Backpage,
11 of them for pimping, the sex trafficking part, and 25 more
based on money laundering and conspiracy.
You heard Senator Portman mention the ruling of the
Sacramento judge recently in that case about a month ago, where
he said, and I will quote it as well, speaking about Section
230 and its broad coverage shield against prosecution of those
involved in sex trafficking. The judge said, ``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. Based on that, the judge dropped every single
count relating to sex trafficking.'' And we are now left to
prosecute based on the conspiracy charges and money laundering,
which we will vigorously do, but Backpage has been spoken about
over and over again, does more than just engage in conspiracy
and money laundering, from our perspective.
If we don't have the tools, the only winners are those who
go to the Internet. This is no longer the brick-and-mortar
stuff, and it actually was never good business on brick-and-
mortar because it was always on the run on the streets. But now
the Internet has become an easy way to make money in this
criminal enterprise, and we need the tools to go after these
folks. We're fighting with two hands tied behind our back.
Senator Nelson. All right. Let me ask you and Ms. Souras,
of course, the opponents to the bill are going to say this is
going to end the Internet. They're going to say it's going to
end the Internet economy. Give us the argument against that.
Ms. Souras.
Ms. Souras. Thank you, Senator. At NCMEC, we have over 3
decades of working closely with the technology companies within
the purpose of our mission. They have provided tools and
partnered with us in a very collaborative manner to participate
in ridding the Internet of child sexual exploitation material.
There are good actors on the Internet, and there are actors
that will always make extra efforts and collaborate with others
to make sure that, you know, there is not criminal activity or
other harmful contact on the Internet. They do that for
business purposes. They do that for altruistic purposes as
well. There is simply nothing in this bill that will curtail
that activity. The narrow scope of this bill is drawn to ferret
out and shine a spotlight on those bad actors, those who are
not screening, are not engaging with others----
Senator Nelson. All right, let me come back to you,
General. So the argument is going to come, well, it's not going
to allow websites to allow users to post restaurant reviews,
family pictures, or comments because of the fears of liability.
Rebut that.
Mr. Becerra. I don't know what menus you're reading----
[Laughter.]
Mr. Becerra.--but this is not what we're going after.
Senator, I think everyone should realize here, at least from
the perspective of attorney general or a district attorney, we
have to prove criminal intent. We can't win a prosecution
unless we can show that the individuals we're prosecuting, like
Backpage, had the intent, the knowledge, to do what they're
doing.
The legislation that you have before you is very narrowly
tailored. It goes only after sex trafficking. The broad
exemption from any type of lawsuit for those who provide online
services remains. It's only if it's sex trafficking, and I've
got to prove that it's sex trafficking and that the defendants
intended to violate that law.
Senator Nelson. All right. Any one of you explain why this
change in the law is so important in the larger fight against
child sex trafficking?
Mr. Becerra. I think you need Ms. Ambrose here to tell you
the most important reason why.
Senator Nelson. I agree. That was fairly dramatic.
Mr. Becerra. It's the rubber hitting the road, Senator, and
we're facing it all the time. We've got another prosecution
going on right now, and it's only because we've got evidence of
the street pimping that occurred. But we've got another
prosecution going on where there were young girls--most of them
under the age of 16--who were being taken from the Central
Valley of California and then marketed in Southern California
and the Bay area of California. And we found out. And Backpage
was part of this operation, and we're going after them, we've
got evidence. But if you have to depend on going after those
based on the Internet, it's near impossible.
Senator Nelson. I thank all of you for coming forward, and
especially to Ms. Ambrose.
Senator Sullivan. Thank you, Senator Nelson.
Senator Blunt.
STATEMENT OF HON. ROY BLUNT,
U.S. SENATOR FROM MISSOURI
Senator Blunt. Thank you, Chairman.
Attorney General Becerra, it's good to see you again. We
served together for a long time----
Mr. Becerra. Yes, sir.
Senator Blunt.--and it's fun to watch you take this
responsibility, and it's a big one, and I know you're looking
at this and lots of other areas. In our state, Attorney General
Hawley has been investigating Backstage as well, and they've
actually sued him and the office, taking them to court, using
Section 230. Have you seen that same kind of response from
Backstage?
Mr. Becerra. We've seen that on a number of occasions. They
affirmatively act because they feel empowered to use Section
230 to defend themselves, and use it as an offense.
Senator Blunt. Do they use that to suggest that your
prosecution is frivolous? How do they use their defense of 230?
Mr. Becerra. For the most part, they're saying, ``You can't
touch us.'' And the court rulings unfortunately seem to imply
that in many cases. We believe the courts have misconstrued
what Section 230 was meant to say. I remember. I was here in
1996, like you, when we voted on the Telecommunications Act,
which was--and the Communications Decency Act was part of the
Telecom Act. I don't remember 1996 ever believing that my vote,
my yes vote, meant that I was going to allow 21 years later for
kids to be sold out there through the Internet for sex.
Senator Blunt. Ms. Souras, do you have any records that
would indicate of the victims of sex trafficking, how many of
them in one way or another involve Backpage as a specific entry
level to that world as it relates to victims?
Ms. Souras. We do, Senator. As the national clearinghouse,
we are the recipient of reports relating to child sexual
exploitation, including child sex trafficking. And over the
past 5 years, approximately 73 percent of those reports that we
receive from the public relating to child sex trafficking
involve a Backpage.com advertisement.
Senator Blunt. Seventy-three percent.
Ms. Souras. Yes, sir.
Senator Blunt. And I think you covered this in your
testimony, but if this legislation would pass, how do you
specifically think it would help in your effort to save kids
from sex trafficking and others from sex trafficking?
Ms. Souras. I think there would be two immediate benefits.
I mean, in one way, NCMEC, you know, obviously is a victim
advocate, speaks for and represents the voices of victims. And
it will provide victims an incredibly powerful tool to come
forward and seek civil remedies against a company that has
actively participated in their trafficking. We believe in that
right. It is a right that also exists for children who have
been victimized through child pornography. It's a very powerful
right to give victims, very empowering.
You know, on the second side, from a more operational
perspective, I think it goes without saying, and it has been
said previously in this hearing, this is not a Backpage bill,
children are not sold for sex only on Backpage. We talk about
Backpage because it is the largest website, it has captured the
market share, but when it goes away, there will be others. But
our hope is that with the change to the CDA, while there might
be others with criminal intent, with the desire to earn money
in this way, and create a similar website, that will realize
that there now is a legal bar to entering that marketplace.
There is no such legal bar now. Backpage is the example for
that. So our hope is that others coming up behind Backpage will
not enter that market or will be more immediately prosecuted
both at a Federal and state level.
Senator Blunt. And, Ms. Slater, do you have a problem with
us doing something that would reopen that legal pathway for
people who have been victimized using--and the Internet becomes
the pathway?
Ms. Slater. Thank you for the question, Senator. At
Internet Association, we stand behind the goals of SESTA. We
want to see an end to sex trafficking online. And we would love
to live in a world where there are no more victims of sex
trafficking. So I wanted to say that up front.
Where we have difficulty with SESTA, as currently drafted,
is that it is overly broad in several respects. However, we
have stated publicly that we would support a specific amendment
that would allow victims to sue for civil penalties in court,
to seek some form of redress for the horrible things that have
happened to them.
And we are in discussions with several members of the
Committee. We heard those discussions referenced----
Senator Blunt. On civil penalties?
Ms. Slater. Yes, and other issues also.
Senator Blunt. Let me go to Mr. Goldman. Mr. Goldman, do
you want to respond to that same topic quickly?
Mr. Goldman. As Ms. Slater said, I do think that it is
important for the Committee to continue its work on sex
trafficking promotion. But SESTA itself as a solution has some
of the problems regarding when a site has knowledge. And
knowledge doesn't come in a 0 or 1 format. Because of the
different ways that sites might moderate, they might be exposed
to different kinds of information that could lead to the
knowledge. And that's the dilemma that creates the decision for
them, are they going to take action or not?
Senator Blunt. Thank you, Chairman.
Senator Sullivan. Senator Duckworth.
STATEMENT OF HON. TAMMY DUCKWORTH,
U.S. SENATOR FROM ILLINOIS
Senator Duckworth. Thank you, Mr. Chairman.
I want to take a moment again and thank Ms. Ambrose for her
courage and willingness to share her family's tragic story.
Without a doubt, Desiree Robinson's story sharpens my personal
resolve to find solutions that will move us forward.
It's difficult to fathom Ms. Ambrose's pain and anger or to
know that thousands of other families across the Nation have
shared her grief. As a mom of a two and a half year old girl, I
am grateful to her for her willingness to speak with us today.
Every year, thousands of sex trafficking cases are reported
across the U.S. According to the National Human Trafficking
Hotline, 156 of those cases were in Illinois last year. This
year, at least an additional 75 cases have been reported in
Illinois, and that's just reported. These statistics are truly
alarming, and worse yet, they reflect only a fraction of the
problem.
Ms. Souras, you highlighted that NCMEC has received nearly
10,000 reports of suspected sex trafficking on its
CyberTipline. You also emphasized the underreported nature of
child sex trafficking crimes. Do you have any sense of the full
scope of these crimes? And are there any existing mechanisms
that could be leveraged to better understand the scope of these
crimes?
In talking to Ms. Ambrose, for example, you know, she said,
look, these kids are coming home at the end of the day, they're
getting pimped out, they're going out there, they're coming
back. The families don't know. Oftentimes the children, the
victims, are being threatened with the safety of their families
to keep quiet. So how do we even get our arms around what the
full scope is?
Ms. Souras. Thank you, Senator. It is a very difficult
problem. NCMEC takes the position that we will rely on our own
numbers. There are quite a few numbers out there, quite a few
call centers and hotlines that receive these types of reports.
And currently, I think it's important to understand there's no
requirement that incidents of child sex trafficking be reported
to the National Center as a clearinghouse on those issues, so
the reports we receive are voluntary. It is wonderful that we
do receive the volume we have, but because it's not mandatory,
that is another reason why we know it is not near the full
number.
You know, the other complicating factors, as you mentioned,
are many of these children are still in their homes. They may
not necessarily have left, they may still be in school to some
extent. So it is very difficult to identify. And, you know,
also to have those adults who are in place, whether it's
parents, communities, teachers, medical workers, be cognizant
of the potential warning signs that a child might be being
trafficked. It's an area that we focus on a great deal in our
prevention and education work, as well as the operational work
we do. We obviously would like to be able to intervene and help
communities intervene before a child is lured into trafficking
or, you know, before they end up on Backpage or another
website.
Senator Duckworth. Is there anything that health-related
agencies and, as you mentioned, Federal law enforcement
agencies can help us to paint a clearer picture since there's
no national mandatory reporting clearinghouse?
Ms. Souras. You know, I think every law enforcement agency
certainly keeps its own numbers and statistics that are very
valuable, but again there is an issue with these victims
reporting, or also communities identifying what they are
suffering truly as trafficking, and there is a bit of a
disconnect. And, you know, I would go back again to the
importance of education and the realization that this happens
in every community. So when law enforcement sees or hears or a
teacher feels like they are hearing or seeing a situation
involving a child who might be trafficked, they need to
acknowledge that could be what is happening. You know, again, I
think there is a resistance often to accepting that this does
happen in every large and small community here in the U.S. So I
would say education and awareness again.
Senator Duckworth. Thank you.
Attorney General Becerra, good to see you again. It was a
pleasure to serve with you in leadership in the House. I don't
think anyone is under the illusion that a silver bullet exists
to eliminate sex trafficking altogether, but most stakeholders
agree addressing the legal inconsistencies between sex
trafficking laws and Section 230 would strengthen the hand of
courts and of prosecutors. Aside from the legal inconsistencies
that I hope SESTA will address, what additional barriers
undermine or limit your ability to attack sex trafficking head
on?
Mr. Becerra. I will tell you that California has pretty
decent law when it comes to this issue. Our biggest obstacle is
SESTA because we can't move forward on the sex trafficking and
pimping charges because of the court rulings that say that the
Section 230 protection makes it impossible for us to move
forward on some of those prosecutions. If we could get past
that, we would be able to help so many of these kids so much
quicker.
Senator Duckworth. Do these websites actively help the
people posting change the wording of the ads in order to skirt
the law?
Mr. Becerra. We've seen evidence of that, and that's the
disturbing part, is that that's a knowing act, and that's where
we could go after someone under a bill like 1693, but, again,
without the authority to do so, we're constantly told by too
many courts, ``You don't have the authority.''
Senator Duckworth. Thank you.
I yield back.
The Chairman [presiding]. Thank you, Senator Duckworth.
Senator Schatz.
STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
Senator Schatz. Thank you, Mr. Chairman.
Thank you to all the testifiers and to the Members who
testified before. The purpose of SESTA is to enable civil and
criminal prosecution against bad actors, but we obviously want
to provide space and not deter proactive actions by good actors
that are doing the right thing to mitigate sex trafficking on
the platforms.
I'd like to ask each of you, there's a conversation going
on about whether report language clarifying that the law is
intended to apply to those actors who enable sex trafficking
and not to those who promptly act in good faith to address a
violation. And I'm wondering if that would be sufficient, if
you think that that would be enough for counsel to hang their
hat on for some of these big platforms who want to do the right
thing, but are, at least in this conversation, worried that
their knowing at all triggers the knowing part of the statute.
And so wondering whether report language would suffice in your
view?
And I'll start with the Attorney General.
Mr. Becerra. Senator, that's an excellent question. I will
tell you that it's always a roll of the dice when you try to
rely on report language or legislative history. We see today
that the language of the Communications Decency Act has been
interpreted by many, many courts to preclude state and local
law enforcement from moving forward on a prosecution. That's an
interpretation of the law that I would disagree with. I believe
we have the authority right now. So if we had report language,
would that help? That would probably get tested quite
frequently in court. I can't tell you I would have the
confidence that that would be enough, and every day that we
don't do something, there are more kids who are being
exploited.
Senator Schatz. Mr. Goldman.
Mr. Goldman. Yes, thank you. The report language, I agree
with Attorney General Becerra, wouldn't override the expressed
language in the statute. So if Congress wants to say something,
it should say so as clearly as possible.
I want to reiterate that the knowledge standard, especially
in the case of civil claims, is a new thing for Section 230. In
general, Section 230 has not had a civil exception that has
been predicated on knowledge. So the opening up of the door to
looking at a site's knowledge will be something that we haven't
seen before, and because of that, we're going to have a lot of
questions. What exactly did the site know and when? And what--
and how do we characterize that under the legal standards?
Those are all new questions for us.
Senator Schatz. Just to probe a little deeper on that, on
the knowing standard, when we imagine the knowing, we imagine
the individual instance of sex trafficking, we imagine the
instance that Senator Duckworth was talking about, where
someone is being coached on what language to avoid. In other
words, we're imaging Backpage or some similar enterprise or
instance. The worry from some of these big platform companies,
and I don't frankly know whether it's legitimate or not, is
that they're saying, ``Listen, we're so large that it would be
accurate to say that we know as a general matter that bad stuff
happens on our platforms because we have billions of users.''
And so the question becomes, if we're not trying to create
an affirmative obligation for an Internet platform to
essentially police all of their platform, and we are really
going after the people whose primary enterprise is to make
money off of this criminal enterprise, then can we craft a
statute that holds harmless--``holds harmless'' is the wrong
word, but that understands that there's a balance here?
Mr. Goldman. Yes, thank you for the opportunity to clarify
and follow up on that because I think the answer is we could
create such a standard, but we would want to be extremely
explicit about exactly when that knowledge occurred because
otherwise there will be lots of discussion and debates over,
well, you knew it based on you having taken this step or that
step, or inferentially you should have known, or constructive
knowledge, you should have been realizing what was taking place
on your site. All of those will become the basis of which there
will be plenty of disputes. Clarification from Congress about
this exactly is what constitutes knowledge would be extremely
helpful if you want to go down that route.
Mr. Becerra. Senator, if I may? Oh, I'm sorry.
Senator Schatz. Let me just go down the line.
Mr. Becerra. Sure.
Senator Schatz. I'm sorry.
Ms. Souras.
Ms. Souras. Yes. From our point of view, that provision
within SESTA is already sufficiently narrowly drafted. And I
know we're talking about knowledge, but the language in the
actual statute is knowing conduct by an individual or entity
that assists, supports, or facilitates basically an instance of
human sex trafficking. So something more is required. And we
could debate what is conduct, you know, in the context of an
online platform. But I just want to make sure that, you know,
we're clear that it is not just simply a blanket notice type
standard.
You know, that being said, I certainly acknowledge there
could be complex, very specific business practices that certain
platforms might, you know, utilize where they fear they could
fit within that definition. I think that's where the nuance of
the discussion can come. And I would just again kind of applaud
the continuation of those discussions with Senator Portman and
Blumenthal and the cosponsors.
Senator Schatz. I'm over time, so, Mr. Chairman, should I
take this one for the record?
The Chairman. Do you have another one?
Senator Schatz. No, no, just the last answer.
The Chairman. OK. No, go ahead, Ms. Slater.
Senator Schatz. So, Ms. Slater, go ahead.
Ms. Slater. Thank you. So I would echo Mr. Goldman's
sentiment. And I would also draw attention to the actual
language in Section 4, which we've already heard about, which
is knowing conduct that facilitates and assists. And to our
members, having reviewed the text, this seems to be a more
troubling standard, difficult standard to manage than the
existing sex trafficking law standard.
And we heard Senators Blumenthal and Portman talk earlier
about a tighter standard, and we, our members, would be willing
to talk with Committee staff, with individual offices, about
how we think we can improve that language in Section 4 in a way
that meets our shared goal, which is to deal with this heinous
crime.
Senator Schatz. Thank you.
The Chairman. Thank you, Senator Schatz.
Next up, Senator Hassan.
STATEMENT OF HON. MAGGIE HASSAN,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Hassan. Thank you very much, Mr. Chairman. And to
you and the Ranking Member, thank you for holding this
important hearing.
Thank you to all the witnesses for being here today. This
is an issue I've been working on for some time, including
working as Governor of New Hampshire with both parties to
strengthen our laws against human trafficking. And I also want
to take a moment to recognize Yvonne Ambrose for her courage,
which really reflects the courage of all victims and survivors
who come forward to shed light on the evil of exploiting people
for sex. Sadly, that includes children like Desiree Robinson.
My mom taught history at my local high school, and she
always used to say that what kids need more than anything else
is to have a grown-up in their corner. So I'm glad today that
the U.S. Senate is working at doing that, being the grown-ups
in the corner for our children. And I'm cosponsoring this
legislation because I really support the goals of this bill, to
ensure that justice for victims of sex trafficking is possible
and to hold bad actors like Backpage accountable and liable.
Look, I know there are conversations, we're having some of
them, that are going back and forth about ways we can improve
the bill, and that's part of today's purpose, to hear different
perspectives. I just want, as a cosponsor, to encourage these
conversations to go forward, and perhaps with that, I think the
attorney general was about to add to answer Senator Schatz's
question, because I would really like to hear, I think we'd all
like to hear, some specifics about how we can make this law as
effective as possible without the unintended consequences that
we've heard here today.
Mr. Becerra. Senator, thank you for a moment to also
respond to the question from Senator Schatz. Let's first
acknowledge that there are so many stakeholders within the tech
community who have stepped up and they're doing what they can,
but you have to have a concerted effort by all because it's so
easy to hide in the corners.
But let me see if I can give you some comfort about
amending the CDA. If it's tough to have a knowing standard for
a company or someone in the Internet space to know whether they
are going to be found liable or not because they may be accused
of knowing, think about what the standard then is for me and my
prosecutors if I have to prove beyond a reasonable doubt that
they knew. That's why I think that we can amend the
Communications Decency Act and do it narrowly.
So what we're doing, at least on the criminal prosecution
side, we make it very difficult for prosecutors to sort of
shotgun this and go after people all over the place. You have
to be able to prove beyond a reasonable doubt that these folks
knew what they were doing. Otherwise, they can't prove criminal
intent. And so for that reason, if it's tough--if you think
you're concerned about that stakeholder in the online community
not knowing whether he or she could be accused, think about the
standard I then have to face if the doubt, the uncertainty,
lies there in the evidence. I have to have strong evidence that
I can prove beyond reasonable doubt.
Senator Hassan. Thank you. And I would encourage Professor
Goldman, and, Ms. Slater, I thank you for your comments.
Because my time is running low, I would encourage you to be--
you and your members to be very specific about what good
language would actually look like rather than raising
objections.
But before my time runs down, I did just want to turn to
Ms. Souras because we know that online sex trafficking has
affected people all over the country, it certainly has in my
state. One case that received national attention in the past
few years was a girl named Emily, who ran away from home. She
was being advertised on Backpage by a pimp for sex all across
New England, including in New Hampshire. She was 15 years old.
I am grateful that she was located, but my understanding is
that under current law, neither she nor other teenage victims
of online sex trafficking can seek justice against the
companies that enabled their exploitation.
So, Ms. Souras, we've heard a lot today about how to change
the laws and the impact that the changes would have on
companies such as Backpage, but can you speak for a minute
about the impact of being denied the ability to seek justice
has on survivors such as Emily?
Ms. Souras. Thank you, Senator. It is something that we
certainly witness as victims move through recovery and then
decide to bring a legal action. It is an incredibly empowering
and self-revitalizing in many ways aspect of their recovery.
They're able to stand up and say, ``This happened to me. It was
wrong. And someone should pay for that in some way.''
So the ability of victims to do that, as we see victims
have the ability to do that in child pornography cases, you
know, which certainly shares some victimology symptoms to child
sex trafficking, is incredibly important and empowering for
these victims. It also is an acknowledgement to them that
society recognizes the harm that has been done to them, that it
was not their fault, and also that they can move forward with
their lives. So it's incredibly important.
Senator Hassan. Well, thank you very much for your work and
for your testimony today.
Thank you, Mr. Chair.
The Chairman. Thank you, Senator Hassan.
Senator Booker.
STATEMENT OF HON. CORY BOOKER,
U.S. SENATOR FROM NEW JERSEY
Senator Booker. Thank you, Mr. Chairman.
You know, we call this sex trafficking, but clearly this is
modern-day slavery, and it is at a scale that most don't
understand, that this is a multibillion dollar industry with
sophisticated individuals engaging in the most heinous actions
of humanity, and it is something that I've been encouraged to
see the kind of commitment in a bipartisan fashion, that we
have to erase this scourge of slavery from our country that
exists in every state and every type of community and has now
grown far more sophisticated and enabled by the Internet.
And so I'm appreciative of this hearing and I'm
appreciative of the sense of urgency, and I just want to try to
get to the root of what seems to be the balance that people are
trying to achieve, which is to give great leaders and law
enforcement, like General Becerra, the tools necessary to bring
evil people to justice. But I hear a lot of, obviously, other
arguments about not wanting to undermine good actors and what
they're doing.
Ms. Souras, in response to Senator Schatz's inquiry, you
seem to in some way--that knowledgeable standard, the knowledge
standard--you seem to have some concerns that you could go too
far, that you have to strike a balance. Is that correct?
Ms. Souras. Well, Senator, I think the knowledge standard,
let's say, as drafted in SESTA, is already sufficiently narrow.
Again, it targets very specific activity to knowingly assist,
support, or facilitate the selling of a human being for sex. I
do not think that is the sort of broad category of knowledge
that could create an inadvertent violation.
Senator Booker. And it's a pretty high standard in the
legal sense----
Ms. Souras. Absolutely.
Senator Booker.--to prove, as was said, beyond a reasonable
doubt.
So, Ms. Slater, how do you respond to that? Because you
clearly--and I appreciate you leading with your compassion and
empathy and disgust at what's been going on and your belief
that something needs to be done at the Federal level to address
this. But do you disagree with Ms. Souras about that, that the
knowledgeable standard, as written now in the legislation, is
too low of a standard and good actors will be caught up?
Ms. Slater. Thank you for the question, Senator. So as I
mentioned previously, the standard in Section 4 of SESTA, as
currently drafted, is different from existing Federal sex
trafficking standard. And we did hear from Senator Portman and
from Senator Blumenthal, that the standard they were talking
about in their opening remarks was the higher standard. And so
we're happy to have discussions about that and to seek that
clarification with the drafters of the bill.
We do absolutely share the goals of this Committee and of
the Senate that we should work together to seek to put an end
to sex trafficking online.
Senator Booker. No, I understand. I'm really trying to get
to the details now. What specifically would you want to see
changed when it comes to the knowledge standard? What? Can you
just be very granular for me?
Ms. Slater. Yes.
Senator Booker. I understand your intentions and the
nobility behind them, but I'm trying to understand what's wrong
specifically with the knowledge standard, as stated in this
legislation.
Ms. Slater. And so today the bill, in Section 4, states
knowing conduct that facilitates and assists, et cetera, et
cetera. And the standard that we previously talked about and
the standard that Senator Portman and Senator Blumenthal
referred to is knowingly facilitates and assists sex
trafficking. And the advice that I am getting from legal
council at the companies is that those are two different
things, and they're seeking to clarify that difference. And,
again, we're happy to talk to any members of the Committee or
their individual staffs.
Senator Booker. Thank you.
Mr. Goldman, can you give me something that's very specific
in how this might put a chill on--and Ms. Slater represents
large companies. Obviously there are lots of startups out
there. Could you be very specific and help me understand how
this would put a chill on a small company, on an entrepreneur,
a standard that for law enforcement is a very high standard to
meet?
Mr. Goldman. Right. And just to--thank you for the
question. Just to clarify, there are both criminal and civil
provisions. The civil provisions would not be subject to the
same burden of proof that Attorney General Becerra talked
about. So we already have two different things we're talking
about simultaneously, and I think that's one of the confusions
I have.
The knowing conduct is different than knowing that an ad
was promoting the victim of a sex trafficking--of a sex
trafficker. So by focusing on knowing conduct, it actually
focuses on the conduct, not on knowing that there was an actual
legal violation taking place. And so right there, there seems
an opportunity for us to clarify. If we mean that the service
writer has to know about the violation, we should make that
more clear.
Otherwise, when we talk about knowledge generally, sites
will take a number of steps to either reduce their knowledge,
which means they'll turn off particular sections of their
websites or they'll adopt filtering that will filter out more
than the legal violation, or they will simply decide, ``We will
do nothing, and therefore we could not possibly have knowledge
of anything.''
Senator Booker. Out of respect for my colleagues, I need to
stop. But you're saying that the civil standard, it will be
lower and invites civil lawsuits, not--you're not concerned
about state and Federal law enforcement.
Mr. Goldman. I have other reasons to be concerned about
state attorney general prosecutions here, but the civil
standard here would not be subject to that high level of proof
that we would expect from a criminal prosecution.
Senator Booker. Thank you.
Mr. Chairman, thank you.
The Chairman. Thank you, Senator Booker.
Next up is Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you.
Thank you for the conversation today. And let me just start
off, because I think, like Senator Booker, I'm trying to really
understand and get down to where we can come to agreement on
this legislation, which I think is so important that we pass
it.
So let me start here. Under Section 230, as it's written
now, the Federal Government, Federal law enforcement, has the
authority to go in and shut down a website for sex trafficking,
correct? I'm going to open it up to anybody. Is that correct?
Mr. Becerra. Yes. The Federal Government has the ability to
criminally prosecute.
Senator Cortez Masto. And so that's what they have now, and
that has not impeded any freedom of speech or the evolvement of
the Internet, correct? I'm going to open it up to anybody. Is
that true?
Mr. Becerra. I'm going to give you an affirmative to that,
but I'll let somebody else----
Senator Cortez Masto. OK. I haven't heard anything
differently. So what we're doing right now and what I
understand is because the sex trafficking of our kids and
adults is so prevalent, like any other criminal law enforcement
activity that occurs, we are looking for the allowance of state
law enforcement to also pursue and shut down these sites when
sex trafficking is occurring. Is that correct, General?
Mr. Becerra. Senator, from my perspective, yes. I am
looking for the authority to do what Federal prosecutors can
do, which courts are denying me right now. I believe under the
statute I should have the authority, but it has been construed
differently.
Senator Cortez Masto. So the only thing we're doing is
opening the door to now allow local law enforcement and state
law enforcement to also do the same thing that the Federal law
enforcement has to do under this, which is to shut down those
sex trafficking sites, correct?
Mr. Becerra. That's the principal reason why I'm here.
Senator Cortez Masto. OK. And that's why as Attorney
General, I signed onto a letter in 2013 to change the 230 CDA,
and that's why I continue to support it.
Now, I understand with your concern with respect to Section
4. I do think it is overly broad. And the knowledge piece that
we're looking for is already in the U.S.C. itself, Section
1591. I mean, General Becerra couldn't have said it better. If
we're going to prosecute, that mens rea of knowledge is already
in the criminal statute.
And so that's what we're looking to do, and I think that's
the only piece that we're trying to do here, is because under
the case law that I have seen as attorney general when I was
pursuing these sex trafficking cases, they're looking at 230,
and the courts are interpreting that State law is preempted by
Federal law, and we don't have this ability.
Now, there is so much sex trafficking going on, and let me
just tell you, this is a crime that is so prevalent, and thank
you, Ms. Ambrose, for being a voice, because it is not an easy
thing for you to get up here and tell your daughter's story.
And your story is one that I've heard too many times in my
state as attorney general. And this is an issue that we have to
stop. We have to stop it. And it is not just for Federal law
enforcement to stop it, it is for all law enforcement, for
state, local, to take action. And that's all we're asking, is
that state law enforcement have that ability because it is so
prevalent.
And so the goal we're trying to do is limit it to sex
trafficking only so that there isn't the concern I hear in some
unintended consequences that may occur with some of the
agencies that I've talked to with respect to the websites.
So, Mr. Goldman, I've only got about a minute 26 left. I
understand you have concerns with states having that authority.
I ask, ``Why?''
Mr. Goldman. Correct. Thank you. So the question is, Why do
I have reservations about state attorneys general enforcing the
law? There are two different issues in the bill. One is the
bill would authorize state crimes to be newly enforced in
addition to the Federal crimes. There is some overlap between
the two. But now we open up the door to a whole bunch of new
laws that have not been previously enforced against the
Internet community. And those laws haven't been approved by the
rest of the Internet. They've been approved by that state--
those states' voters, and the attorney general has been
approved by that state's voters. So the effort to impose these
other crimes on the rest of the Internet creates the
possibility that the state itself, the people who aren't in
that state are having the laws of a state applied against them
in ways that they may not have had a chance to vote on.
Senator Cortez Masto. So if we were limiting it
specifically that the state could pursue an action for sex
trafficking pursuant to 1591, that's going to limit what they
can do and the action that they can take, and so this would--
would that satisfy your concerns?
Mr. Goldman. That would certainly help make sure that we're
now applying a single Federal standard as opposed to a much
more heterogeneous set of laws.
Senator Cortez Masto. I appreciate that. Thank you. I
understand my time is up.
Mr. Chairman, let me just say thank you. This is such an
important topic. I have worked as attorney general with my
colleagues, and now General Becerra, trying to change this, and
many advocates in this room, Mrs. McCain and NCMEC and so many
others. I think it's such an important topic and I so
appreciate you having the hearing today.
The Chairman. Thank you, Senator Cortez Masto. I appreciate
your good questions.
And next up is Senator Cantwell. I felt like I was skipping
over you.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. No, that's OK.
Thank you. I appreciate my colleague from Nevada's questioning
and the issues.
And I wanted to ask you, Attorney General Becerra, about
what else we need to be doing to address this problem. I have
worked in the past with both tech companies and INTERPOL on
trying to create better tools to use the Web as an
investigation for a crime scene so that law enforcement know
what to be looking for, the challenges they face. But what else
do we need to do?
As someone who comes from a state where I know that there
is trafficking, the I-5 corridor, the central part of our
state, from sporting events to Vegas activity. Tell me what
else that we need to do to give the tools to law enforcement
beyond what we're talking about here today?
Mr. Becerra. Certainly trying to provide the services and
help that Ms. Souras and some of the other phenomenal advocacy
organizations have been doing. They're doing it on a shoestring
budget. They are saving lives. They are rehabilitating kids.
The more we do for them, the greater the chance that someone
with all this trauma will survive.
Second, remember how tough it is to file a lawsuit, a civil
lawsuit. It is not easy to be a company that's making millions
of dollars on the Internet. When you're an average person who
knows your child was taken advantage of and exploited through
sex trafficking, it's going to be really tough to manage a case
against a large company with lots of lawyers.
But, third, if we can't even prosecute--you could give the
Federal Department of Justice a much larger budget so they
wouldn't have to pass on trying to prosecute all the various
cases throughout the 50 states and all the territories, but
they can't go after everybody. That's why you've got 50 state
attorneys general, the District of Columbia's attorney general.
That's why we've got in California 58 district attorneys in our
58 counties. We can do some of that, but we can't unless we
have the authority to do it under the Communications Decency
Act.
And so probably the best thing to do if we want to sort of
break the logjam here is give us the authority to descend on
some of these folks because if we can prosecute--remember it's
always better to prosecute criminally someone than try to go
after them civilly and try to see if you can get monetary
damages.
Senator Cantwell. No, I'll--well, I'm not opposed to that,
that's not what I was referring to, because I'm pretty sure
this problem has existed sans this vehicle, and we want to make
sure that we're fighting on every opportunity. And one thing
that we want to do is enhance the communication so that law
enforcement has the tools. As I said, we've been involved in
other things where Interpol and tech companies were working
together----
Mr. Becerra. Yes. Yes.
Senator Cantwell.--to try to help disseminate information
so that we were stopping these--so that we were actually
following the trail to actually find these people and stop
them. But I'm also interested in the non-Internet side, too,
because it's such a pervasive problem in very rural parts of
our state, and I want to make sure that we're giving law
enforcement all the tools necessary. So we don't always get you
here to ask that question. So thank you for that.
Mr. Becerra. Thank you.
Senator Cantwell. And so on the identification side, are
there things that we can be doing in the local communities to
identify individuals and networks?
Mr. Becerra. A lot is being done. I will tell you I'm
amazed at the amount of work that's done. It's mostly because
you've got very concerned parents who find out that their child
was involved, and they're starting to work with organizations.
I think there are a great number of individuals and companies
within the tech community that have stepped to the plate to try
to be supportive to help people understand how to do this. And
a lot of local governments have formed task forces to work in a
collaborative manner with every stakeholder.
So a lot is being done, but if you hit the roadblock every
time of trying to prosecute or get civil taken, it's
impossible.
Senator Cantwell. Yes. No, I get your point there. I just
want to make sure we're--now that we have this forum, I want to
build all the opportunities that we have. That's the point.
Mr. Becerra. Absolutely.
Senator Cantwell. And you're mentioning this information
flow. We've had former colleagues who have taken a pretty big
role in this in my state, and we want to make sure that the
work that's being done to help elevate the discussion is there.
So if you think that there is something on like a help network
line to identify more of these things so we can go in and--that
would be helpful. So thank you.
Mr. Becerra. Thank you.
Senator Cantwell. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Cantwell.
Another vote has been called. I have Senators Blumenthal,
Young, and Udall, and I think if we try, we can probably wrap
things up and get everybody there in time for the vote.
So, Senator Blumenthal, you're up first.
Senator Blumenthal. Thank you, Mr. Chairman. And in order
to give my colleagues perhaps more of a chance to question, I'm
not going to make any further remarks. I think I've said why I
so strongly support this legislation, which I have helped to
craft, and we've tried to do it carefully, and we tried to
listen to the industry. We've tried to listen really closely to
some of the concerns that have been raised this morning by Mr.
Goldman, for example, the idea that this legislation will cause
sex trafficking to--I'm using your word--proliferate. Hard to
believe.
Mr. Becerra, what do you think? And will this measure cause
sex trafficking to proliferate?
Mr. Becerra. I can't agree with what Professor Goldman has
said. I think it's just the opposite. If we have a standard in
place, then I believe the stakeholders within the Internet
community will come forward in ways that we've seen before, but
even more vigorously because they'll understand what the
standard is, and I think that's so very important to make it
clear for folks.
The most important thing, Senator, I think Senator Booker
sort of pointed this out, is we need to get the opponents of
this measure to explain in detail what they would propose in
place. Otherwise, it's always a moving target. It's Whack-A-
Mole. Someone needs to give us what a better bill looks like.
Senator Blumenthal. And we have urged and welcomed their
participation, and only recently have they begun making
suggestions. In one proposal, they would, in effect, either
drastically curtail or eliminate the role of state attorneys
general or other state law enforcement. I know what I think, as
an attorney general who served for 20 years, maybe I can ask
you on behalf of attorneys general, at least on behalf of
yourself, why you think it's important for attorneys general to
continue in the role that they have along with state law
enforcement generally?
Mr. Becerra. That's our responsibility, is to protect the
people of our states, and as you know, as a former attorney
general, it is not easy to get 50 attorneys general to sign
onto the same letter, and that's how powerful this is, because
we've seen how many lives are being impacted by not being able
to move forward.
Senator Blumenthal. And you've been very eloquent and
powerful in your testimony today. Senator Harris, your
predecessor, has been very helpful in clarifying some of the
issues on this bill. You know, I'm going to be very blunt,
there are times when the United States Department of Justice
fails to be as aggressive as it should be either because it
doubts the legal merits of a potential prosecution or a civil
claim, or it simply lacks the leadership to do so, and that's
where state attorneys general are so very important. That's why
we have a Federal system, because states have a responsibility
to protect their people and enforce the law. And in this
instance, as in the anti-trust area and other areas, the
coordinated approach I think is tremendously important. But we
do welcome suggestions from the industry.
And let me ask, Mr. Goldman, do you really believe that
this law would cause sex trafficking to proliferate?
Mr. Goldman. Thank you, Senator, for the opportunity to
clarify that. Indeed, my concern is that we already see a
number of efforts on the part of legitimate players to reduce
the sex trafficking promotion. And to the extent that any of
those companies decide, ``I am better off turning off my
efforts across the board to try to reduce the knowledge that I
have,'' then actually it creates a larger number of zones where
the sites will not be taking the legitimate efforts that we
want them to take. It creates an environment where there are
more places for that activity to occur.
Senator Blumenthal. You know, I have a higher opinion of
the industry than you do. I really believe that this law will
raise the bar, will increase consciousness, and that far from
trying to evade or, in effect, deny themselves knowledge so as
to avoid any accountability, they will be more energetic. I
absolutely really believe that most of these companies want to
do the right thing, and that this law will give them an
increased impetus and incentive to do so.
Mr. Goldman. There's no doubt that the legitimate players
will do everything they can to not only work with the law
enforcement and other advocates to address sex trafficking, but
will probably do even more than they do today. At the same
time, the industry is not just the big players; it's a large
number of smaller players who don't have the same kind of
infrastructure, and for them, they have to make the choice, Can
I afford to do the work that you are hoping they'll do?
Senator Blumenthal. And I believe those outliers--and they
are outliers--will be successfully prosecuted civilly or
criminally under this law.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Blumenthal.
Senator Young.
STATEMENT OF HON. TODD YOUNG,
U.S. SENATOR FROM INDIANA
Senator Young. Thank you, Chairman, for this important
hearing.
And thanks so much to our panelists and the other
stakeholders who are working so hard to help us find some
common ground here.
I was touched and I was moved, as I think everyone was, by
Ms. Ambrose's testimony, and it's clear we have to do
everything possible to mitigate, end ultimately, human
trafficking and sex trafficking. This hits home, as it does for
all of my colleagues, but in the State of Indiana, tips to our
human trafficking line went up fourfold from 2014 to 2016, and
law enforcement specifically cites one website, Backpage.com,
as fueling some of that growth. So I feel an imperative for us
to act, and I share the goals that those who put this
legislation together have.
Details are really important. And so I have confidence that
parties can come together, and if we're open on one hand to a
careful reassessment of Section 230, that might provide greater
power to our state AGs to go after the Backpage.com's of the
world. But on the other hand, we have to be open to a careful
reassessment of SESTA to take into account legitimate concerns,
I think, that were expressed by Professor Goldman and Ms.
Slater here today. Can we bridge that divide? I think we're
pretty close here.
So I'm going to ask a question about this, what strikes me
as a new standard, ``knowing conduct,'' within SESTA. It's a
new standard to the definition of participating in a venture in
the Federal law.
I want to better understand the implications created by
this ``knowing conduct'' standard. I spent a couple years
practicing law. We have intent on one end, we have strict
liability on the other end. You have gross negligence and
negligence and recklessness. And so help me understand. Is this
``knowing conduct'' standard somewhere in between intent and
negligence, Mr. Goldman?
Mr. Goldman. Thank you for that question because I am, too,
not clear what the ``knowing conduct'' standard refers to and
where it would fit on that spectrum between intent and strict
liability. To me, reading it on its face, it would only modify
the conduct, not whether understanding that conduct caused any
legal violation. So I don't know that I would call it strict
liability, but in a sense, as long as you know the conduct
you're taking, the consequence of that conduct may be unknown
to you and still have great liability.
Senator Young. Mr. Becerra.
Mr. Becerra. Senator, because my focus has been on criminal
prosecutions, for me, the standard will always have a clear
sense of knowing. I can't prosecute someone and get a
conviction unless they knew what they were doing. And so for
me, the bar is as high as it gets, having to prove beyond a
reasonable doubt. That's why I believe, in this particular
case, we can make an amendment to SESTA and not damage those
who are truly trying to grow and innovate based on that
protection they get from lawsuits.
Senator Young. Mr. Goldman, you invoke the possibility that
a sort of constructive knowledge could be imputed to those who
put up a website. ``Constructive knowledge,'' I looked up the
definition on the Web, a person is presumed by law--and that
can always be dangerous--a person is presumed by law to have
this knowledge, since the knowledge is obtainable by the
exercise of reasonable care. Reasonable care is the sort of
care that--and a person would ordinarily exercise if they were
a prudent and rational person under similar circumstances.
This gets--it's pretty abstruse stuff after a period of
time, but is there--do you believe is there a way to bridge
this divide between the concerns of what I'll characterize as
your side and those who are pushing for a more aggressive
approach?
Mr. Goldman. I actually think we're all talking about the
same thing, but I'm not sure that we agree what language will
get there. If we are talking about knowing that there is a sex
trafficking violation taking place, that knowledge to me would
be something that would be consistent with Attorney General
Becerra's standard, but would also, I think, be a much clearer
standard for the services to act under.
Senator Young. OK. My time is winding down. Count me in as
someone who wants to constructively work toward a conclusion
here and find that sweet spot so that we can protect our young
men and women in this country and prevent this horrible
predation that continues to grow in the State of Indiana and
beyond.
The Chairman. Thank you, Senator Young.
Before I turn to Senator Markey, he has already voted, I'm
going to have to go vote here. I think Senator Sullivan is
coming back and also wants to ask questions, so I may have him
take this out.
But I wanted to ask Ms. Slater, because I know this issue
of civil liability has been discussed at some length. But could
you provide some more clarity about what such an amendment
would have to look like to receive your organization's support?
Ms. Slater. Certainly, Senator. Thank you. So currently,
under existing law--and I'll be specific here, it's 18 U.S.C.
1595--victims of sex trafficking can seek civil penalties
against the perpetrators of the crimes against them. There is a
carve-out for that, for Section 230, and we support an
amendment to Section 230 that would make that path possible for
victims.
The Chairman. Well, let me just say in kind of closing this
out, that this has been really--I think the hearing has been
very helpful, a lot of good testimony, and I would encourage
you and the companies that you represent to continue to be at
the table and to figure out if there's a way we can resolve the
what some have acknowledged are perhaps unintended consequences
in the current draft of the bill, but get to a place where we
can move forward because I think everybody agrees this is an
area in which we have to--we need to provide clarity.
It's up to us to clarify the issues that are constantly
involved in litigation. And I happen to think there's a path
forward to be able to do that based on what I've heard today,
but I want to encourage you and your companies to be able to
sit down with the sponsors of this bill and for us to be able
to work with our colleagues to see if we can get to a result.
But I thank you all for being here. And I think this has
been a great, like I said, a great hearing with very valuable
input, and we'll look forward to taking all of it into
consideration as we move forward.
And I'll flip it now to Senator Markey.
And then, Senator Sullivan, I think you can probably wrap
it up.
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Chairman Thune, very much. Thank
you for having this very important hearing.
There is a Dickensian quality to the Internet. It can
simultaneously enable and ennoble or degrade and debase.
Obviously, sex trafficking is at the top of the list of
degrading and debasing activity which occurs on the Web. And
historically, what has happened is that there has been an
incentive for companies to take voluntary action to deal with
these issues, to be empowered to be able to deal with the
issues, and that self-incentivization is something that clearly
is now being called into question. And the issue is, How do we
now construct a balance that allows us to deal with this issue
and to potentially give authority to attorneys general to be
able to act?
So it's good to see you, Attorney General Becerra, my good
friend. Can you talk a little bit about what that power is
succinctly, that we can understand, and why it's necessary to
put that on top of the already existing powers?
Mr. Becerra. As has been stated earlier, Federal
prosecutors have the authority right now to criminally
prosecute those who violate Section 230, the Communications
Decency Act, who go above and beyond and engage in criminal
activity with regard to sex trafficking of children. The
difficulty is Federal prosecutors have proven they're not going
to go everywhere and do every case. That's why you've got the
50 state attorneys general, the District of Columbia's attorney
general, and the other territories. You've got in California 58
district attorneys in our 58 counties. We're prepared to do
that because there is no reason to let a case drop if the
evidence is strong that you have criminals who are preying on
our children.
And we would just simply like to have the authority that I
believe we already have under the statute, but based on
interpretations by various courts, they don't agree.
Senator Markey. OK. Ms. Slater, what's wrong with what the
attorney general said?
Ms. Slater. In terms of goals, we absolutely share the
goals.
Senator Markey. Right.
Ms. Slater. Perpetrators like Backpage.com should be
brought to justice. However, I would note that there is
currently in Phoenix a grand jury convened to do just that, and
it's supported by evidence from the Senate's own PSI report,
which issued earlier this year, which contained, I believe,
over a million pages of documents from Backpage that outlined
and documented and evidenced its criminal conduct in
facilitating sex trafficking.
Senator Markey. OK. Ms. Souras, what's wrong with what Ms.
Slater just said?
Ms. Souras. We certainly applaud the efforts of the Federal
Government and the grand jury investigation, and then we will
be following that closely, but as Attorney General Becerra
noted, the problem is simply too large. These are large
complicated cases. There is not one website. We know this at
NCMEC. We talk about Backpage. There are dozens of websites.
There will be dozens more in the future. These are complicated
cases to put together. The victims do not come forward easily.
They have lengthy periods of recovery. These are some of the
issues that we've highlighted throughout this hearing.
The volume is simply too high. Perhaps in 1996, it was
reasonable to assume that the activity on the Internet was, you
know, much, much less, and of course, the criminal activity was
much less significant. That simply isn't the case anymore. More
criminal law enforcement resources are needed.
Senator Markey. Thank you.
And, Mr. Goldman, you're going to disagree with Ms. Souras.
So where is your disagreement with her?
Mr. Goldman. Thank you. The only thing I would add to what
Ms. Slater said is that the DOJ has already gone after two
other sites that have been promoting online prostitution, the
Rentboy and MyRedBook sites, and successfully was able to shut
down both under existing Federal law, no issues with Section
230. So I think we have to note that the DOJ is paying
attention to this area and is taking action.
Senator Markey. OK. And you, coming back to you again,
you're saying, Attorney General Becerra, it's just not
adequate.
Mr. Becerra. Senator, they're going to--that mole is going
to pop in another hole, and we're going to whack it, and then
it's going to pop up in another hole, and it's just Whack-A-
Mole.
Senator Markey. So we need more hammers to be hitting those
holes.
Mr. Becerra. There's too much money. They're not going to
stop. There's just too much money.
Senator Markey. OK. So we thank all of you. This is an
issue we have to resolve, and we have to just find a way
through it. You've all presented very compelling testimony here
today. And I think you're giving us, I think, a good education
on the problem and on where the potential avenues can be
created in order to work together on a bipartisan basis.
And I want to thank the Chairman. And I offer my
cooperation to the Chairman and to Senator Blumenthal to try to
work this thing through so we can find a consensus resolution
of it. So we thank each and every one of you for your
compelling testimony today.
I yield back to the Chairman.
STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA
Senator Sullivan [presiding]. Thank you, Senator.
And I want to thank the witnesses. I will be your last
questioner today. You've done a great job on this panel on a
really important issue. You know, all of us deal with this
heinous issue in different ways. In my State of Alaska, some of
you may have seen this recent report sponsored by Covenant
House that looked at 10 different cities for homeless youth.
Almost one-third homeless youth in different cities across
America have been trafficked. And it's an astounding statistic.
So I'm going to ask without objection that this report be
placed in the record. And I believe that Covenant House is
going to be submitting testimony for this hearing as well.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Sullivan. Attorney General Becerra, I want to get
back to this question, and I think it's a really important one
that Senator Markey was talking about that's in the bill. I'm a
cosponsor of the bill, so I'll put my cards on the table here.
On the issue of resources and prosecution, you know, in my
experience as a former AG in Alaska, we had a couple cases with
regard to sex trafficking relating to the Mann Act, and that's
the Federal law that prevents or makes it a crime to conduct
sex trafficking across state lines. And it was a frustration
for me as the AG because we had cases where there was evidence,
very clear evidence. The state prosecutors and the state
investigators were ready to go, and for whatever reason, the
Feds weren't.
So one of the first bills that I actually introduced in the
Senate last Congress, and it got passed into law, signed by
President Obama as part of the broader human trafficking bill
that we got, was called the Mann Act Cooperation Act, and what
it essentially said was that if there is evidence that a state
AG brings to the Feds to be cross-designated to pursue a Mann
Act violation, that the Attorney General of the United States
shall cross-designate, for example, you for Mann Act
violations. I'm trying to get the word out to AGs, so please
help spread the word because that's a new power that you have.
Mr. Becerra. Yes.
Senator Sullivan. And the Attorney General of the United
States can only say no to that cross-designation if it would,
quote, ``undermine the administration of justice,'' and then
the Attorney General would have to send you, if you were
requesting that, a detailed explanation of that within 60 days.
So it's an enormous power on sex trafficking for our AGs, which
is why I think very strongly your point and the others here on
this issue of allowing state officials to bring these
prosecutions.
In my experience, particularly in Mann Act cases, there is
so much of that going on, and the Feds only have so many
resources. So I would again just welcome any of you to talk
about that, whether it's Mann Act or that provision in this
law, but I think it's absolutely essential. And it's not trying
to usurp the Feds' power or to create a patchwork, it's trying
to bring more resources to an enormously big problem in our
country. And I think AGs like you who are motivated on this can
do that. You can do it on the Mann Act right now. Please go use
that new law. But you can do it here, and I think it's
important.
So, again, I'd like to open this up to all the witnesses
just on this question, the pros and cons of that provision in
this bill. You see why I think it's important, and I'd love to
hear from either side on this, why you think it's important or
why you think it would be a problem.
Attorney General, why don't we begin with you, sir?
Mr. Becerra. Senator, first if I can just say thank you for
your service to the people of Alaska and to this country, both
as the attorney general and now as a Senator, and for the good
effort to try to help those of us who would like to have that
authority to go out there and prosecute these cases.
Senator Sullivan. You have it on the Mann Act now, so----
Mr. Becerra. Amen. We'll spread the word. We'll spread the
word.
I will simply say what I've been saying. It's we're not
interested in trying to--especially not in California, of
trying to slow down just the innovative explosion that you see
going on in the Internet. We want that to go on. California
benefits from it. But we've got to do something to help our
kids and people like Ms. Ambrose. And so simply allowing us to
do what sometimes the Federal Government doesn't have the
resources to do would be just plain smart.
Senator Sullivan. Yes.
Mr. Becerra. And we're not trying to take a case from the
Federal Government. If they want to go at it, great. But if
they can't, we're ready to step in.
Senator Sullivan. Great.
Professor Goldman, try to rebut the--this is a resource
issue, and if you think that we have the prosecutors that we
need to go after all these crimes, I think the facts would
dictate otherwise. So what's your rebuttal on that if, indeed,
you have a rebuttal? Maybe you agree with that position.
Mr. Goldman. Yes, thank you. I think that the Federal
standard helps clear up some of the confusion about the
existing bill. So right away, you've, I think, asked a
different question than the bill has asked us. And so I think
that's a helpful question to ask.
Senator Sullivan. Well, you like--you're OK with state
prosecutor under a Federal standard? Are you OK with that?
Mr. Goldman. That helps. That helps.
Senator Sullivan. That's what this Mann Act provision is.
Mr. Goldman. Yes. And so--and I think that's a helpful
direction to take the conversation because it cleans up one of
the ambiguities that's in the bill.
We still have the question about what the legal standard is
that the state AGs will be prosecuting, and to what extent they
will be able--it will be clear enough to them that we are only
targeting the, quote, ``Backpages of the world,'' or are we
targeting a larger universe? and what that larger universe
looks like. So----
Senator Sullivan. But the standard is going to be dictated
by the law, right?
Mr. Goldman. As long as the standard is dictated by the
law, and if we have a requisite showing of the knowledge that
we've discussed earlier in this hearing, that will help
restrict the ability of people to interpret that in different
ways, but unless that's clear, there is different
interpretations that could be possible.
I just want to come back to the idea that though the DOJ is
strapped for resources, they have been putting resources on
this topic. And so I just want to make sure that we haven't
lost sight of the good work that they are doing. And that then
leads to the question, Are they doing enough? And I think
that's a question that I'd like to know more about.
Senator Sullivan. OK. Ms. Souras.
Ms. Souras. Senator, I would just very quickly cite back to
the case numbers that we see at the National Center. This year
so far, 9,700 reports of suspected child sex trafficking. That
is a tremendous volume of children. They need the assistance
and the support of the state attorney generals in addition to
the Federal Government.
Senator Sullivan. Thank you.
Ms. Slater, do you have a view on that one?
Ms. Slater. I think that NCMEC should get all the resources
it needs to do the good work that it does. It currently gets a
lot of resources from our companies, whether that's through
engineering talent, through financial resources, developing
technology, that help track down perpetrators of sex
trafficking and locate victims.
And if I may add a personal note, I spent 10 years doing
investigations and litigation on behalf of the Federal
Government, and I do firmly believe if there's one thing the
Federal Government does very well, it's litigation. And so I
would like to see more resources go to DOJ so they can
prosecute these cases.
Senator Sullivan. Well, look, I think more resources is a
common theme probably with every Senator here and all the
witnesses. But this problem is growing, and it's so significant
that more resources can mean not just Federal resources, but
the good offices of state AGs. It's a very powerful resource
and I think it's a key component of this bill. If the standard
remains the same, which it does under this legislation, then I
think having more prosecutors is actually quite an important
development here.
Well, listen, you've done a very good job on a tough topic
here. We appreciate you taking all the time.
The hearing record will remain open for two weeks. During
this time, Senators are asked to submit any additional follow
up questions for the record. Upon receipt, we would
respectfully ask the witnesses to submit their written answers
to the Committee as soon as possible. Thank you again for
testifying today.
This hearing is adjourned.
[Whereupon, at 12:51 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Nacole S., Mother of a Child Sex Trafficking
Victim on Backpage.com
Good morning Chairman Thune, Ranking Member Nelson, and Members of
the Committee,
My name is Nacole S., and I want to thank you for the opportunity
to have my letter read today before you. I hope I can be a voice for
the countless other families who are not present today, whose lives
have been forever changed by websites that make their living hiding in
the shadows of the law.
In 2010, we were a close, loving family. We were all realizing our
American dream. We had built something for ourselves more valuable than
money, more important to us than a big new house or better cars in the
driveway. We had built 3 lives, our great kids, ready to come into
their own and take on the world. Passionate about our children, we
wanted and expected the best. I remember a conversation with a school
guidance counselor who was chastising us on how we were going about our
son's college applications. The counselor was convinced that our son, a
first-generation college student, would be best served applying to only
local schools. We, ever-reaching, were convinced that he was better
than that. It felt like our stubborn optimism and belief was rewarded
when our son was accepted into a prestigious private engineering school
in New York. We weren't surprised at all. We were so proud of all 3 of
our children, each national honor roll students, and at the top of
their games. Little did we understand how dramatically our lives were
about to change. In just a few months, our American dream would be
exchanged for a third-world nightmare, and would lead us to question
everything.
Our youngest, our baby Natalie \1\, was something special. She was
always the most energetic of our 3 children, so full of life and
promise. She participated in varsity soccer and wrestling, and played
violin in the high school orchestra--all in her freshman year. That was
Natalie, she tried to experience everything. She was taking high school
by storm, in her light-hearted way. She was one of those kids. (Only a
family with one of those kids knows what that means. Natalie wanted to
do everything at once, with high energy, and nothing could contain her
zest for life). Challenging as she was, she was exceeding every
possible expectation a parent could have. It was amazing to be part of.
None of us could've predicted that her innocent, care-free attitude was
about to take her down a path what would shake our family to its very
core. At the time, our family dynamic had changed as our son was off to
college and our oldest daughter was distracted by her own concerns.
Natalie was struggling to find her place in her new world.
---------------------------------------------------------------------------
\1\ We use the pseudonym Natalie to protect our daughter's privacy.
---------------------------------------------------------------------------
Looking back, we understand that our daughter was burning the
candle at both ends, struggling with all the sudden, but inevitable,
changes that were occurring. While they were all good things to us;
they were confusing and difficult to Natalie. All we saw was an
exceptional young lady, doing exceptional things. But Natalie, in her
own way, was sending out signals. It's easy to see now, because of all
the painful retrospection that comes with a tragedy, but it was
impossible to see then.
She made the implausible decision to leave the safety of her home.
She wrote a letter, five pages long, telling us how wonderful her
family is and how much she loved us. ``Finding herself'' was the gist
of the letter, and of course not to worry. Not certain of her choice,
Natalie had shared the letter with friends and like a sick game of
telephone it circulated the school. Now it wasn't just a letter, but a
dare. It was her reputation at stake. So, backed into a corner, she
left.
Making her way to Seattle she found herself at a teen homeless
shelter. A woman there, 22 and posing as a teen, must've immediately
noticed Natalie as an easy target. As smart as Natalie was, she had no
idea of the danger she was in. As a parent, it's hard to talk about
what happened next. I can't imagine her fear and bewilderment at what
was happening to her as she was repeatedly raped and beaten and
threatened, and treated like a sexual object every single day. All
while being posted on a Backpage online ad. I honestly try not to think
about it. I can only tell you that when we finally got Natalie back for
good, months later, the young girl we found wasn't the same Natalie who
left our home months earlier. I literally didn't recognize her at
first; her appearance had changed so much. Her hair was dyed and cut
and she was wearing different clothes. She didn't even sound like
Natalie. Everything she was saying was incomprehensible to me. Our
Natalie's light was gone. That was the beginning of our 6-year odyssey
to get here, to our new American dream.
Our new dream is simple: to live in an America that doesn't stand
aside while little girls like our daughter, Natalie at age 15, are sold
online like a commodity. This critical legislation would correct a
legal loophole in the Communications Decency Act (CDA) that shields
websites that knowingly facilitate sex trafficking.
A law originally drafted in 1996, the CDA simply cannot address the
reality of violent crime on the Internet today. Every day, thousands of
women and children are marketed online where buyers purchase them with
ease, anonymity, and impunity. As survivors of sex trafficking and
commercial sexual exploitation, we know the deep and profound harm
caused by this crime. Many of us are survivor leaders of organizations
working to provide safety and healing to others, including American
children who were bought and sold online. For years, we have tried
unsuccessfully to hold these websites accountable, but court after
court has made it clear: Congress must correct the blanket immunity
provided by CDA.
This legislation is vital. Stop Enabling Sex Traffickers Act of
2017 represents an incredible bipartisan effort to seek justice for
countless survivors who are sold on websites that shamelessly profit
from our exploitation. As survivors of sexual exploitation and
trafficking, we ask you to please prioritize the safety and rights of
our Nation's most vulnerable women and children and pass SESTA to at
long last, provide us a pathway to justice. As the father of a child
sex trafficking survivor perfectly stated: ``Children are not
acceptable collateral damage. They are our hope, our future, America's
conscience.''
______
Statement of Love146
Chairman Thune, Ranking Member Nelson, and members of the
committee: thank you for the opportunity to present this written
statement on behalf of our organization and the many children we work
with.
Love146 is an international anti-trafficking organization,
headquartered in New Haven, CT, with survivor care and prevention
education programs in the United States, the United Kingdom and the
Philippines. As an organization that has spent 15 years working
exclusively on the issue of child trafficking and exploitation, we have
seen first-hand the increasing role that the Internet is playing in
abetting child sex traffickers. Many of the children in our care today,
from the Philippines to the United States, have been bought and sold
through various Internet platforms.
When platforms, such as Backpage.com knowingly advertise children--
as if they are commodities--they are facilitating the exploitation and
rape of our children. We have worked with many children whose
traffickers have required them to pose for photos--images that would in
many cases be considered child pornography--so that they could be
bought and sold online. Sometimes these children were unaware that the
photos they were taking were later going to be used to advertise their
bodies for sale--sometimes these children thought they were exchanging
photos with a romantic partner, sometimes they believed they were
involved in a modeling project. In other cases, children were required
to take ``selfies'' and coached through the process, how to look, what
to wear, what parts of their bodies to display. If their initial photos
did not elicit enough interest from ``buyers'' responding to their
``advertisement'' they were required to take more explicit photos.
Being bought and sold online, next to classifieds for used clothes,
bikes, appliances, and cars can have a devastating impact on how these
children perceive themselves and can forever change how they view their
relationship with their body. Their bodies now hold a specific and
public price tag. In addition to the rapes and the horrific sexual
acts, we have now created a situation in which we have placed a
monetary value on our children. This commodification tells them, this
is what you are worth. It is completely contrary to the message we want
to send to children: that they are precious, that they are invaluable,
that they are our future.
The fact that sex with children can be openly advertised is
something that we would expect no human being to find acceptable. The
courts have been clear: there needs to be a legislative solution to the
protections afforded to websites like Backpage.com through the original
construction of Section 230 of the Communications Decency Act. In 2016,
in the State of California v. Carl Ferrer et al, the court so clearly
articulated this stating, ``the Court understands the importance and
urgency in waging war against sexual exploitation. Regardless of the
grave potential for harm that may result in the exercise of this
article of faith, Congress has precluded liability for online
publishers for the action of publishing third party speech and thus
provided for both a foreclosure from prosecution and an affirmative
defense at trial. Congress has spoken on this matter and it is for
Congress, not this Court, to revisit.''
This is exactly what S. 1693, The Stop Enabling Sex Traffickers Act
of 2017, is attempting to rectify. Since the early days of the
Internet, Congress has found appropriate and effective means to limit
copyright and privacy infringement on the Internet. S. 1693 is narrowly
focused, targeting only those digital publishers who ``knowingly''
allow offending material to be published. Only those who ``knowingly''
allow children to be bought and sold on their website can be found
liable for this content. If passed, S. 1693 has the potential to
greatly reduce the use of the Internet as a marketplace for the buying
and selling of children. It will be a powerful tool with which
organizations like ours, and law enforcement, will be able to help
protect our children from exploiters and predators.
Thank you for the opportunity to provide you and the Committee with
our perspective on this important piece of legislation. We look forward
to continuing to work with you, the Committee and other Members of
Congress on ways to safeguard children from child trafficking and
exploitation.
______
National Association of Police Organizations, Inc.
July 27, 2017
Hon. Richard Blumenthal,
United States Senate,
Washington, DC.
Dear Senator Blumenthal:
On behalf of the National Association of Police Organizations
(NAPO), I am writing to you to express our full support for the Stop
Enabling Sex Traffickers Act.
NAPO is a coalition of police units and associations from across
the United States that serves to advance the interests of America's law
enforcement through legislative and legal advocacy, political action,
and education. Founded in 1978, NAPO now represents more than 1,000
police units and associations, 241,000 sworn law enforcement officers,
and more than 100,000 citizens who share a common dedication to fair
and effective crime control and law enforcement.
Since its inception in 1998, the National Center for Missing and
Exploited Children's (NCMEC) CyberTipline has received more than 16.5
million reports of suspected child sexual exploitation. In 2016 alone,
the CyberTipLine received 8.2 million reports of apparent child sexual
abuse images, suspected ``sextortion'', child sex trafficking and child
sexual molestation. An increasing number of these victims are
trafficked online. Unfortunately, due to numerous court rulings,
survivors of online trafficking cannot sue their advertisers due to
Section 230 of the Communications Decency Act (CDA), which
inadvertently gives broad criminal immunity to websites that facilitate
sex trafficking. This significantly hampers law enforcement's ability
to enforce state trafficking laws against such websites.
The Stop Enabling Sex Traffickers Act addresses this issue and
narrowly amends Section 230 to allow states and victims to bring cases
against bad actors that facilitate sex trafficking, while safeguarding
the freedom of the internet. Therefore, NAPO stands ready to support
with any efforts necessary to pass this important legislation. If you
have any questions, or if we can be of further assistance, please feel
free to contact me at: (703) 549-0775.
Sincerely,
William J. Johnson, Esq.
Executive Director.
______
August 1, 2017
Senator Portman,
Russell Senate Office Building,
Washington, DC.
Senator Blumenthal,
Hart Senate Office Building,
Washington, DC.
Letter of Support for the Stop Enabling Sex Traffickers Act of 2017
Dear Senator Portman and Senator Blumenthal,
A couple of decades ago sex traffickers and buyers conducted their
illegal transactions in dark alleys and back streets. Today these
criminal transactions have moved online. Although the location has
changed, the crime remains the same and so must our response to those
who facilitate and enable it.
In recognition of the tragic nature of online facilitation of sex
trafficking, we thank you-and the broad, bi-partisan group of co-
sponsors committed to protecting those who are bartered and sold for
sex online--for introducing the Stop Enabling Sex Traffickers Act of
2017. The undersigned organizations believe this legislation is
necessary to dose a legal loophole in the Communications Decency Act
(CDA) that allows websites to escape liability for knowingly
facilitating sex trafficking.
The CDA was enacted in 1996 to govern the nascent Internet industry
while promoting an open forum for commerce online. Section 230 of the
CDA established immunity for ``interactive computer service providers''
(ICSPs) from civil and state criminal liability for third-party content
in order to promote self-regulation by these online entities. However,
over the past twenty years Section 230 has been broadly misinterpreted
by Federal courts as extending blanket immunity to websites that host
ads where trafficked individuals are bought and sold.
Websites that profit from creating marketplaces for the sale and
purchase of trafficking victims enjoy a lucrative business model--one
with high profits and low risk. When states and victims have tried to
hold these companies accountable in the courts, the CDA has blocked
their efforts. In 2014, child sex trafficking victims asserted civil
claims under the Trafficking Victims Protection Act (TVPA) against
Backpage.com--the most extensive online marketplace for sex trafficking
victims and the platform where the young plaintiffs had been advertised
for sex--but their claims were denied based on CDA immunity. At the
same time, the Senate Permanent Subcommittee on Investigations was
engaged in a two-year inquiry into Backpage's business practices,
culminating in a report on January 19, 2017 detailing how Backpage had
knowingly facilitated child sex trafficking. Backpage has also avoided
state criminal liability by attacking state laws in court and barring
them from taking effect, also based on CDA immunity. Meanwhile,
Backpage.com's profits continued to rise from $71 million in 2012 to
over $120 million in 2015.\1\
---------------------------------------------------------------------------
\1\ I AM JANE DOE (SO Eggs Films 2017).
---------------------------------------------------------------------------
This is wholly inconsistent with the purpose and protections
intended when the CDA was enacted in 1996. As the Communications
Decency Act began to make its way through the Senate, Senator Exon
stated upon introduction of the bill on February 1, 1995 that the
purpose of the bill was indeed to protect children:
Mr. President, the information superhighway should not become a
red light district. This legislation will keep that from
happening and extend the standards of decency which have
protected telephone users to new telecommunications devices.
Once passed, our children and families will be better protected
from those who would electronically cruise the digital world to
engage children in inappropriate communications and
introductions.\2\
---------------------------------------------------------------------------
\2\ 141Cong. Rec. 51953 (daily ed. Feb. 1, 1995) (statement of Sen.
Exon).
The Stop Enabling Sex Traffickers Act o/2017 clarifies that Section
230 was never meant to automatically shield websites that engage in the
crime of human trafficking from a civil lawsuit or state criminal
penalties. This bill targets the business model of companies like
Backpage.com, by opening the door to civil liability and allowing
states to enforce their trafficking laws when online entities choose to
profit from the exploitation of sex trafficking victims.
Enacting this legislation is critical to restoring the promise of
justice for victims and holding offending websites culpable for their
crimes. As sex trafficking explodes on the internet, accountability for
online entities that facilitate this exploitation is an essential tool
in the international fight against sex trafficking. We, the undersigned
organizations, support this critical legislation and urge Congress to
restore the human rights protections of the Trafficking Victims
Protection Act that have been eclipsed by this misinterpreted immunity
for entities that value profits over the protection of vulnerable
people.
Sincerely,
Shared Hope International
PROTECT
Rights4Girls
National Children's Alliance
50 Eggs Films
Exodus Cry
Coalition Against Trafficking in Women (CATW)
______
National Association of Attorneys General
Washington, DC., August 16, 2017
Hon. Roger Wicker, Hon. Brian Schatz,
Chairman, Ranking Member,
Senate Subcommittee on Senate Subcommittee on
Communications, Technology, Communications, Technology,
Innovation and the Internet, Innovation and the Internet,
Committee on Commerce, Science, and Committee on Commerce, Science, and
Transportation. Transportation.
Hon. Marsha Blackburn, Hon. Michael Doyle,
Chairman, Ranking Member,
House of Representatives House of Representative
Subcommittee on Communications and Subcommittee on Communications and
Technology, Technology,
Committee on Energy and Commerce. Committee on Energy and Commerce.
RE: Amendment of Communications Decency Act
Dear Chairman Wicker, Ranking Member Schatz, Chairman Blackburn, and
Ranking Member Doyle:
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. Unfortunately, nearly four years later, this
problem persists and these criminal profiteers often continue to
operate with impunity. The recent news highlighting the potential
complicity of online classified-ad company Backpage.com in soliciting
sex traffickers' ads for its website once again underscores the need to
expand, not limit, the ability of all law-enforcement agencies to fight
sex trafficking.\1\ The undersigned Attorneys General once again
respectfully request that the United States 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 and endanger our most vulnerable citizens.
---------------------------------------------------------------------------
\1\ Tom Jackman and Jonathan O'Connell, Backpage has always claimed
it doesn't control sex-related ads. New Documents show otherwise,
Washington Post, July 11, 2017, available at https://
www.washingtonpost.com/local/public-safety/backpage-has-always-claimed-
it-doesnt-control-sex-related-ads-new-documents-show-otherwise/2017/07/
10/b3158ef6-553c-11e7-b38e-35fd8e0c288f_story.html (last visited July
12, 2017).
---------------------------------------------------------------------------
As noted in the 2013 letter, certain Federal courts have broadly
interpreted the CDA.\2\ One high-profile result is that some state and
local law enforcement agencies have been left powerless to act against
online classified ad services, such as Backpage.com, which have
constructed their business models around advertising income gained from
participants in the sex trade.\3\ Just a few examples of the countless
instances of child sex trafficking--and its online promotion--that
occur every day in the United States include the following:
---------------------------------------------------------------------------
\2\ See, e.g., Senate Permanent Subcommittee v. Ferrer, 199 F.
Supp. 3d 125, 136 (D.D.C. 2016), vacated as moot, 856 F.3d 1080 (D.C.
Cir. 2017); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1275
(W.D. Wash. 2012); M.A. v. Village Voice Media Holdings, LLC, 809 F.
Supp. 2d 1041, 1048-56 (E.D. Mo. 2011); Dart v. Craigslist, 665 F.
Supp. 2d 961, 965 & n.6 (N.D. Ill. 2009); Doe v. Bates, 2006 WL
3813758, at **3-5 (E.D. Tex. Dec. 27, 2006); see also Google, Inc. v.
Hood, 96 F. Supp. 3d 584, 596-98 (S.D. Miss. 2015), vacated & remanded
on other grounds, 822 F.3d 212 (5th Cir. 2016).
\3\ While Backpage.com claims to have shut down its prostitution/
escort ads after a U.S. Senate hearing in January, there are reports of
the ads merely moving to different sections. See Brian Rokos,
Backpage.com Removes `Escort' Ads--Or Does It?, Press-Enterprise, Jan.
11, 2017, available at http://www.pe.com/articles/backpage-822842-ads-
subcommittee.html/ (last visited July 6, 2017); Kevin Litten, New
Orleans Backpage Prostitution Ads Now Listed as Dating Ads, Human
Trafficking Experts Say, Times-Picayne, Jan. 17, 2017, available at
http://www.nola.com/politics/index.ssf/2017/01/
backpage_prostitution_new_orle.html (last visited July 6, 2017);
Stephen Koff, Backpage.com Still Appears to Be Running Ads for
Prostitutes, Sexual Services, Cleveland.com, Jan. 12, 2017, available
at http://www.cleveland.com/metro/index.ssf/2017/01/
backpagecom_might_not_have_act.html (last visited July 6, 2017).
Police in Stockton, California recently arrested more than
20 people in a human trafficking and prostitution ring. Eight
girls between the ages of 14 and 17 were being trafficked for
sex using advertisements on Backpage.com.\4\
---------------------------------------------------------------------------
\4\ Sarah Heise, 23 Arrested for Human Trafficking, Prostitution in
San Joaquin County, KCRA 3, May 5, 2017, available at http://
www.kcra.com/article/23-arrested-in-san-joaquin-county-human-
trafficking/9588063 (last visited June 29, 2017).
Federal and state law enforcement recently arrested a
Chicago man accused of pimping a 16-year-old girl via
Backpage.com, leading to her murder. The man ``shopped [the
girl] around on Backpage.com,'' delivered her to a customer,
and then fell asleep in his car outside a parking garage. When
he awoke, he discovered the girl's body in the garage, ``her
throat slit and her body badly beaten.'' \5\
---------------------------------------------------------------------------
\5\ Feds Charge Man for Prostituting 16-Year-Old Girl Before Her
Murder, ABC 7 Eyewitness News, June 21, 2017, available at http://
abc7chicago.com/news/feds-charge-man-for-prostituting-16-year-old-girl-
before-her-murder/2128793/ (last visited June 29, 2017).
Police in Georgia recently arrested three people who used
Backpage.com to pimp a pregnant 17-year-old girl.\6\
---------------------------------------------------------------------------
\6\ Ross Cavitt, Trio Accused of Pimping Pregnant Teen for Sex,
WSB-TV 2, June 23, 2017, available at http://www.wsbtv.com/news/local/
cobb-county/trio-accused-of-pimping-pregnant-teen-for-sex/539101607
(last visited June 29, 2017).
Police in Florida recently arrested a woman who used
Backpage.com to prostitute a missing 16-year-old girl
throughout Broward County.\7\
---------------------------------------------------------------------------
\7\ Tonya Alanez, Girl, 19, Accused of Pimping Out Missing 16-Year-
Old, Sun Sentinel, June 2, 2017, available at http://www.sun-
sentinel.com/local/broward/plantation/fl-teen-female-pimp-arrest-
20170601-story.html (last visited June 29, 2017).
Clearly, in these instances, 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 in these
kinds of cases. We do not believe that was Congress's intent in passing
the CDA, and we do not believe that is Congress's intent now. It is
both ironic and tragic that the CDA, which was intended to protect
children from indecent material on the internet,\8\ is now used as a
shield by those who profit from prostitution and crimes against
children.
---------------------------------------------------------------------------
\8\ 104 Cong. Rec. S2308-01 (daily ed. June 14, 1995) (statement of
Sen. Coats) (``Mr. President, all you have to do is pick up the
telephone and call the FBI, ask their child exploitation task force
about the volume of over--the-Internet attempts to seduce, abuse, and
lure children into pornography and sexual exploitation.''); 104 Cong.
Rec. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Cox) (``We want
to encourage people like Prodigy, like CompuServ, like America Online,
like the new Microsoft network, to do everything possible for us, the
customer, to help us control, at the portals of our computers, at the
front door of our house, what comes in and what our children see.'').
---------------------------------------------------------------------------
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. Thus, we
recommend that 47 U.S.C. Sec. 230(e)(1) be amended to the following
(added language in bold):
Nothing in this section shall be construed to impair the
enforcement of section 223 or 231 of this title, chapter 71
(relating to obscenity) or 110 (relating to sexual exploitation
of children) of title 18, or any other Federal, State, or
Territorial criminal statute.
We are aware of efforts in Congress to preserve state criminal
statutes that prohibit certain kinds of sexual exploitation and sex
trafficking, and to preserve Federal and state statutes that provide
causes of action, restitution, or other civil remedies to victims. We
ask that, in addition to these efforts, Congress consider enacting our
proposed change. We believe the CDA should be clear in preserving both
state and territorial law to the same extent that it preserves Federal
law--i.e., the CDA should be clear that it preserves all state and
territorial criminal statutes, just as it preserves all federal
criminal statutes. The simple addition this letter proposes would do
just that and will help to ensure that we are able to effectively
protect citizens and children throughout the entire country, in all
courts. We thank you for your attention to this vital matter.
Respectfully,
Karl A. Racine Pamela Jo Bondi
District of Columbia Attorney Florida Attorney General
General
Steve Marshall Jahna Lindemuth
Alabama Attorney General Alaska Attorney General
Mark Brnovich Leslie Rutledge
Arizona Attorney General Arkansas Attorney General
Xavier Becerra Cynthia H. Coffman
California Attorney General Colorado Attorney General
Matthew Denn Chris Carr
Delaware Attorney General Georgia Attorney General
Douglas S. Chin Lawrence Wasden
Hawaii Attorney General Idaho Attorney General
Lisa Madigan Curtis T. Hill Jr.
Illinois Attorney General Indiana Attorney General
Tom Miller Derek Schmidt
Iowa Attorney General Kansas Attorney General
Andy Beshear Jeff Landry
Kentucky Attorney General Louisiana Attorney General
Janet T. Mills Brian Frosh
Maine Attorney General Maryland Attorney General
Bill Schuette Lori Swanson
Michigan Attorney General Minnesota Attorney General
Jim Hood Josh Hawley
Mississippi Attorney General Missouri Attorney General
Tim Fox Douglas Peterson
Montana Attorney General Nebraska Attorney General
Adam Paul Laxalt Gordon MacDonald
Nevada Attorney General New Hampshire Attorney General
Christopher S. Porrino Hector Balderas
New Jersey Attorney General New Mexico Attorney General
Eric T. Schneiderman Josh Stein
New York Attorney General North Carolina Attorney General
Wayne Stenehjem Mike DeWine
North Dakota Attorney General Ohio Attorney General
Mike Hunter Ellen F. Rosenblum
Oklahoma Attorney General Oregon Attorney General
Josh Shapiro Wanda Vazquez Garced
Pennsylvania Attorney General Puerto Rico Attorney General
Peter Kilmartin Alan Wilson
Rhode Island Attorney General South Carolina Attorney General
Marty J. Jackley Herbert H. Slatery, III
South Dakota Attorney General Tennessee Attorney General
Ken Paxton Sean Reyes
Texas Attorney General Utah Attorney General
T.J. Donovan Mark R. Herring
Vermont Attorney General Virginia Attorney General
Robert W. Ferguson Patrick Morrisey
Washington Attorney General West Virginia Attorney General
Brad Schimel Peter K. Michael
Wisconsin Attorney General Wyoming Attorney General
Copy: The Honorable John Thune, Chairman, Senate Committee on Commerce,
Science, and Transportation; The Honorable Bill Nelson, Ranking
Member, Senate Committee on Commerce, Science, and Transportation; The
Honorable Greg Walden, Chairman, House of Representatives Committee on
Energy and Commerce; The Honorable Frank Pallone, Ranking Member,
House of Representatives Committee on Energy and Commerce
______
CoStar Group
Washington, DC, August 30, 2017
United States Senate,
Washington, DC.
Dear Senators Portman, Blumenthal, and McCaskill:
CoStar Group, Inc., one of the leading real estate technology
companies in the United States, is writing today to express our support
for the Stop Enabling Sex Traffickers Act of 2017 (``SESTA''). We
understand that many other technology companies and lobby groups are
currently opposed to this legislation, but policing online content is
important to us. We operate websites, including Apartments.com, that
draw tens of millions of monthly users, and so are already attuned to
the issue of online safety. Nevertheless, the issues addressed in SESTA
have come into sharper focus for us as a company over the past few
months.
It began in early spring this year when one of our senior
executives was reviewing evidence we obtained pursuant to a court-
ordered search and seizure warrant that had been issued by a
Philippines court. We found ourselves in the Philippine courts because
of another huge problem facing technology companies located in the
U.S.-mass offshore theft of intellectual property. Specifically, our
investigation of the theft of CoStar's intellectual property by
Xceligent, Inc., a company based in Missouri, led us to Xceligent's
offshore agent located in a remote town in the Philippines.
When we began reviewing the evidence seized from the Philippines,
we expected to find evidence of infringement of our copyrighted
commercial real estate photos and theft of CoStar content from our
websites (and we did); but what we did not expect to find was what we
believed to be child pornography and sex trafficking ads mixed in with
that evidence. We called the FBI immediately, thinking we had uncovered
a Filipino sex ring. The FBI advised us that we needed to segregate any
image that could be child pornography. We then discovered the name
``Backpage'' occurring at a very high rate in the data, but we had no
idea who or what Backpage was. When we Googled the company, up popped I
AM JANE DOE and the U.S. Senate Investigation into online trafficking.
We learned this was not a Filipino sex ring, but instead a U.S.
company, Backpage, that was also using the same offshore agent in the
Philippines as Xceligent.
We were subpoenaed by attorneys representing victims in civil cases
against Backpage, as well as by various states' attorneys general. We
were glad to provide whatever assistance that we could because we could
not forget what we had seen.
As a technology company, we believe in, and have benefited from,
the growth of the Internet. We understand that an unregulated Internet
provides fertile ground for the development of important new and
innovative business models, and we will continue to strongly defend
that openness. But when we see those driven by greed take advantage of
that freedom by facilitating underage sex trafficking, we cannot be
silent.
The absolute immunity under section 230 of the CDA can no longer be
justified at the expense of the exploitation of children. We believe
that SESTA is a thoughtful, narrowly tailored remedy, and is long
overdue.
Thank you for the work you are doing and your commitment to this
issue. We at CoStar stand with you.
Kind regards,
Andy Florance,
CEO,
CoStar Group, Inc.
______
Oracle
September 5, 2017
Hon. Rob Portman,
U.S. Senate,
Washington, DC.
Hon. Richard Blumenthal,
U.S. Senate,
Washington, DC.
Dear Senators Portman and Blumenthal,
I am writing to offer Oracle's strong endorsement of your bill, S.
1693, the Stop Enabling Sex Traffickers Act of 2017.
We commend your leadership on this issue. As your and other
investigations have demonstrated, sex trafficking has exploded in large
part due to nefarious Internet actors that knowingly facilitate and
profit from it. We agree that congressional action is necessary to put
an end to this tragic exploitation of human beings and hold its online
accomplices to account.
We appreciate that, in keeping with your respective strong track
records of supporting the growth of the Internet and information
technology industry, you have worked hard to craft a thoughtful bill to
hold bad actors liable.
The fact is that technological capabilities that are available
today are light years away from those that existed in 1996, when the
commercial Internet was just beginning. Back then, Internet startups
would be launched with little to no ability to review and monitor the
content they hosted. More importantly, sex trafficking and other
heinous crimes had not begun to proliferate on the Internet.
Nonetheless, we are 100 percent confident that a Portman/Blumenthal
amendment--identical to S. 1693--offered to the Communications Decency
Act in 1996 would have passed the Senate overwhelmingly and the
Internet would have enjoyed the same exponential growth and innovation
over the past twenty one years. Frankly we are stunned you must even
have this debate.
Today, the state of technology is far different than it was in
1996. Any start-up has access to low cost and virtually unlimited
computing power and to advanced analytics, artificial intelligence and
filtering software. That capability is also offered as a service in the
cloud. The business success of Internet and mobile computing platforms
depends on their ability to precisely analyze, arrange and segment
applications, data and content, to accurately target them at their most
relevant audiences--along with advertising, of course--not to blindly
run platforms with no control of the content.
Your legislation does not, as suggested by the bill's opponents,
usher the end of the Internet. If enacted, it will establish some
measure of accountability for those that cynically sell advertising but
are unprepared to help curtail sex trafficking.
We look forward to working with you to advance your bill.
Sincerely,
Kenneth Glueck
Senior Vice President, Office of the CEO.
______
National Association of Pediatric Nurse Practitioners
New York, NY, September 14, 2017
Hon. Rob Portman,
United States Senate,
Washington, DC.
Hon. Richard Blumenthal,
United States Senate,
Washington, DC.
Dear Senators Portman and Blumenthal:
On behalf of more than 8,500 pediatric nurse practitioners and
fellow pediatric-focused advanced practice registered nurses committed
to providing optimal health care to children, the National Association
of Pediatric Nurse Practitioners (NAPNAP) applauds your leadership in
introducing the ``Stop Enabling Sex Traffickers Act of 2017'' (S.
1693). NAPNAP and its members support this important legislation and
your efforts to ensure that the websites that facilitate sex
trafficking, particularly those targeting children, can be held liable
for their actions under Section 230 of the Communications Decency Act
and enable victims to seek justice against the website that aid the
perpetrators of crimes against them.
As you know, advanced practice registered nurses (APRNs) who
concentrate on children's care, including pediatric nurse practitioners
(PNPs), are critically aware of the importance of stable, affordable
health coverage in ensuring that families and their children receive
the timely health care they need. Practicing in primary care,
specialty, and acute care settings, APRNs dedicated to pediatric care
have provided quality health care to children and families for more
than 40 years in an extensive range of community practice settings such
as pediatric offices, schools, and hospitals--reaching millions of
patients each year.
NAPNAP and its members share your concern about the critical
problem of human trafficking, particularly of children and adolescents.
As you are aware, human trafficking is the third largest international
crime industry (behind illegal drugs and arms trafficking), reportedly
generating profits of $32 billion every year, of which $15.5 billion is
made in industrialized countries. The U.S. State Department reports
that 600,000 to 800,000 people are trafficked across international
borders every year--of which 80 percent are female and half are
children.
NAPNAP is committed to improving provider awareness of the
trafficking of children, and we have been directly involved in
educating our members to recognize and provide appropriate treatment
and referral for victims. Based on discussions with the Department of
Health and Human Services' Office of Trafficking in Persons in the
Administration for Children and Families, NAPNAP intends to initiate an
online course to educate APRNs, registered nurses, physicians,
physician assistants and other health care providers about the problem
of child trafficking, including how to identify victims in emergency
departments, primary care, and other practice settings. A planned
second course will provide similar resources for a broad array of
stakeholders including school administrators, teachers, social workers,
law enforcement, faith-based, and transportation workers. NAPNAP will
work in collaboration with other stakeholder groups to ensure
comprehensive and appropriate content and consistent protocols for
identification, response and referral. In addition, we plan to conduct
train-the-trainer events for both the healthcare-focused course and
multi-stakeholder course to enable NAPNAP members and other
professionals to go back to their communities and chapters and train
their peers.
Your legislation will help to ensure justice for children who are
victims of sex trafficking and clarify the remedies available to state
Attorneys General and civil attorneys to assist victims and their
families in holding responsible everyone who participated in their
trafficking. As you know, there is growing evidence that traffickers
are expanding their online operations to take advantage of existing
gaps in statutes by knowingly creating or hosting content and actively
engaging in conduct that makes it easier for traffickers to facilitate
the sale of minors and adults victimized by sex trafficking. The ``Stop
Enabling Sex Traffickers Act'' will take important steps to close those
loopholes and support the survivors of sex trafficking.
Again, NAPNAP is grateful to you for your leadership in taking
action to address the critical problem of child sex trafficking and
provide justice for children and their families who are victimized by
sex traffickers. We are pleased to support the ``Stop Enabling Sex
Traffickers Act of 2017'' (S. 1693) and look forward to working with
you to see it enacted into law as quickly as possible.
Sincerely,
Tresa E. Zielinski, DNP, RN, APN-NP, CPNP-PC,
President.
______
State of Connecticut, Division of Criminal Justice
September 15, 2017
U.S. Senator Richard Blumenthal,
Members of the United States Senate and House of Representatives,
Washington, DC.
Dear Senator Blumenthal and members of Congress,
I respectfully request that you take the necessary action to amend
Section 230 of the Communications Act of 1934 (47 U.S.C. 230) by
passing the ``Stop Enabling Sex Traffickers Act of 2017.'' Various
State and Federal Judicial authorities have upheld the protections
afforded commercial advertisers under Section 230 of the Code as it
relates to escort services, dating platforms and other locations where
children and adults can be bought and sold for sexual purposes. The
courts have repeatedly stated that, ``It is up to Congress to change
the laws.'' The courts' strict Constitutional interpretation of Section
230 squarely puts the responsibility on lawmakers to fix the antiquated
provisions of a law designed to promote free market business with a
newly developed technology, such as the Internet and other advanced
marketing forums. Recognizing that certain people cloaked in a
constitutionally protected medium, routinely use modem electronic
technology to exploit vulnerable members of our community, requires
Congress to act to protect children and adults alike who are subjected
to the horrors of human sex slavery.
I am a prosecutor with the New Haven, Connecticut State's
Attorney's Office and the lead prosecutor with the joint Federal and
State Human Trafficking Task Force. I coordinate joint prosecutions to
hold offenders accountable for violations of human trafficking laws
where groups and individuals use various websites to buy and sell
children and adults for sexual purposes. Backpage.com is one such
business and I have followed the legal battles involving them for a
number of years. Inevitably the courts have upheld the protections
afforded under Section 230 supporting Backpages's defense. My argument
to you, members of Congress, is the following: Even if the courts were
successful in prohibiting ONE company like Backpage.com from
advertising, there are literally thousands of other companies already
performing the same service. Millions of dollars have already been
wasted on lawsuits going after the actions of one company. Piecemeal
efforts are and will be ineffective in solving the problem of sex
advertising. Amending the antiquated protections of the Section 230 law
is a far better solution to tightening the loop hole these companies
slip through to continue making record profits at the expense of an
extremely vulnerable population.
Human trafficking businesses have flourished under the cover of
darkness (using the internet), whether for labor purposes or sexual
gratification. Technology has afforded those willing to exploit other
human beings for profit without conscience at a record pace. The data
suggests that a trafficker can make more money selling another person
for sex than selling illegal drug or weapons without detection from law
enforcement groups. The greatest tool traffickers have at their
disposal is the online advertising capability. It is time to deprive
traffickers and those that profit from the illegal sale of people by
eliminating the protections which are presently afforded by the
Constitutional guarantees under Section 230.
In closing, I genuinely thank you from a personal and professional
perspective for taking the time to read this letter as you debate
whether to take the courageous step in changing a law that has been in
effect for decades. One need only see the irreparable damage to one
human being, firsthand, to recognize that the proposed changes are far
overdue to help children and young adults from a life of modern
slavery. Please feel free to contact me if you have any questions
related to this request at (203) 789-7801 or via e-mail,
brian.sibley@ct.gov.
Respectfully submitted,
Brian K. Sibley, Sr.,
Senior Assistant State Attorney,
New Haven State's Attorney's Office.
______
American Hotel & Lodging Association
September 18, 2017
Hon. Richard Blumenthal,
United States Senate,
Washington, DC.
Dear Senator Blumenthal,
We write today to applaud your determined effort to fight human
trafficking and to endorse your legislation, the Stop Enabling Sex
Traffickers Act of 2017, which would go a long way toward cracking down
on the use of the Internet by human traffickers to further their
reprehensible crimes.
The American Hotel & Lodging Association (AHLA) is the singular
voice representing every segment of the hotel industry including major
chains, independent hotels, management companies, franchisees, REIT's,
and bed and breakfasts. Our industry recognizes the vital role that
hotels can play in the battle against human trafficking networks and
are committed to fulfilling this responsibility. Our focus in
confronting trafficking has been to raise awareness within the
industry, train hotel employees, and support non-profit organizations,
policymakers, and law enforcement in their efforts to combat these
terrible crimes.
For example, AHLA funded and developed an online training program
specifically geared toward hotel employees in partnership with ECPAT-
USA and Polaris. The program teaches hotel workers to recognize signs
of trafficking and report suspicious activities to law enforcement.
AHLA also issued hotel industry principles on human trafficking to
provide guideposts for our member companies and further raise awareness
in the industry.
We are continually seeking more effective ways to contribute to
society's campaign against trafficking, whether in coordination with
organizations like the National District Attorneys Association, or
government agencies like the Department of Homeland Security, or other
entities within the travel and tourism sector. Your legislation is a
crucial step forward in this campaign, and we are proud to support it.
We cannot allow traffickers to conduct their operations on the Internet
with impunity and your bill is an important step forward. Please let us
know how we can be of assistance in your quest to eradicate human
trafficking.
Sincerely,
Vanessa Sinders,
Senior Vice President.
______
Union of Orthodox Jewish Congregations of America
Washington, DC, September 18, 2017
Hon. Rob Portman,
Hon. Richard Blumenthal,
United States Senate,
Washington, DC.
Dear Senators Portman and Blumenthal:
We are writing on behalf of the Union of Orthodox Jewish
Congregations of America (``Orthodox Union'')--the nation's largest
Orthodox Jewish umbrella organization--to express support for S. 1693,
the ``Stop Enabling Sex Traffickers Act of 2017.''
Like so many Americans, we are deeply concerned about the scourge
of human sex trafficking. We also support a justice system that
protects the most basic human rights, including the ability of victims
to seek justice against those who have wronged them. S. 1693 will allow
victims of sex trafficking on the Internet to seek justice against
those that promote and facilitate such trafficking. This legislation is
narrowly tailored to correct the loopholes inadvertently contained in
the Communications Decency Act of 1996 that provide a safe harbor for
Internet traffickers.
The Orthodox Union supports your legislation to amend the
Communications Decency Act of 1996 to ensure that victims of human sex
trafficking are included in this protection and able to seek the
justice they deserve.
Sincerely,
Nathan Diament,
Executive Director.
Jerry Wolasky,
Chairman, Advocacy.
______
Hewlett Packard Enterprise
St. Palo Alto, CA, 18 September 2017
Hon. Rob Portman,
United States Senate,
Washington, DC.
Hon. Richard Blumenthal,
United States Senate,
Washington, DC.
Dear Senators Portman and Blumenthal:
On behalf of Hewlett Packard Enterprise, I am writing to express
our support for S. 1693, the Stop Enabling Sex Traffickers Act of 2017.
Your legislation will help bring justice to victims and their families
and protect vulnerable women and children.
As an industry-leading, global technology company that has long
taken a stand against forced labor and human trafficking, and has made
it a priority to protect and elevate vulnerable worker groups, we
believe the technology sector has a responsibility to help policymakers
and law enforcement combat illicit and criminal activity on the
internet, especially sex trafficking.
Hewlett Packard Enterprise views engagement with stakeholders and
public advocacy as integral aspects of its overall strategy to address
the risks of forced labor and human trafficking. We often share our
experiences and the challenges associated with combatting these issues
in our supply chain at conferences and other public forums. The goal is
to raise awareness, help other companies build an internal business
case for action on trafficking, and advance wider stakeholder dialogue
about how we can collaborate on meaningful actions.
To that end, please let me know how my team and I can be of
assistance as you seek consensus to move this important legislation
forward.
Thank you for your leadership, and we stand ready to work with you
and your colleagues to enact this important bill.
Sincerely,
John F. Schultz,
Executive Vice President, General Counsel
and Corporate Secretary.
______
The Walt Disney Company
Washington, DC, September 18, 2017
Hon. Rob Portman,
United States Senate,
Washington, DC.
Hon. Richard Blumenthal,
United States Senate,
Washington, DC.
Dear Senator Portman and Senator Blumenthal:
I am writing to express the strong support of The Walt Disney
Company for S. 1693, the Stop Enabling Sex Traffickers Act of 2017
(SESTA).
Disney is a diversified entertainment company and one of the most
prominent faces of the American content industry. We are a company
whose business is firmly rooted in creativity, expression and
innovation. As technology has evolved, so too has our business, with
each of our segments invested in a significant online and interactive
media presence. As such, we are steadfast defenders of the principles
of freedom of speech and of the press, and we are both beneficiaries of
and advocates for the liability protections afforded by the
Communications Decency Act (CDA). But we also recognize that the public
has a strong interest in an Internet that is open, secure, and
protective of the rights of individuals. In the end, the public's
legitimate expectation of responsible stewardship and accountability by
those who make the Internet their business is no less appropriate in
the online space than it is in the offline world.
Recognizing the importance of the CDA's protection to online
platforms, including Disney, it is hard to imagine that the Congress
that crafted this protection intended it to operate as a shield against
liability for the kind of horrific acts that are the target of your
legislation. The CDA's objective to ``promote the continued development
of the Internet and other interactive computer services and other
interactive media'' was and remains an important one to promote
investment and innovation in online platforms. But that objective
cannot be so overriding as to require that we shield from liability
those who knowingly engage in unlawful activity, particularly those who
knowingly participate in the business of human trafficking. To the
extent some are claiming that holding such actors accountable
``jeopardizes bedrock principles of a tree and open internet,'' Disney
rejects that view.
Thank for your efforts to pursue a sensible policy in this area--
one that is protective of both the Internet and its continued
development while providing redress for those who are the victims of
unimaginably harmful and unlawful conduct. We will be happy to work
with you as this bill moves forward to ensure the legislation meets its
targeted objectives and becomes law.
Sincerely,
Richard M. Bates,
Senior Vice President Government Relations.
______
September 18, 2017
Hon. John Thune,
Chairman,
U.S. Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Hon. Bill Nelson,
Ranking Member,
U.S. Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Chairman Thune, Ranking Member Nelson, and Members of the
Committee,
We are an alliance of survivors of sex trafficking and commercial
sexual exploitation from all across the country writing to express our
strong support for S.1693, Stop Enabling Sex Traffickers Act of 2017
(SESTA). This critical legislation would correct a legal loophole in
the Communications Decency Act (CDA) that shields websites that
knowingly facilitate sex trafficking.
A law originally drafted in 1996, the CDA simply cannot address the
reality of violent crime on the Internet today. Every day, thousands of
women and children are marketed online where buyers purchase them with
ease, anonymity, and impunity. As survivors of sex trafficking and
commercial sexual exploitation, we know the deep and profound harm
caused by this crime. Many of us are survivor leaders of organizations
working to provide safety and healing to others, including American
children who were bought and sold online. For years, we have tried
unsuccessfully to hold these websites accountable, but court after
court has made it clear: Congress must correct the blanket immunity
provided by CDA.
This legislation is vital. Stop Enabling Sex Traffickers Act of
2017 represents an incredible bipartisan effort to seek justice for
countless survivors who are sold on websites that shamelessly profit
from our exploitation. As survivors of sexual exploitation and
trafficking, we ask you to please prioritize the safety and rights of
our Nation's most vulnerable women and children and pass SESTA to at
long last, provide us a pathway to justice. As the father of a child
sex trafficking survivor perfectly stated: ``Children are not
acceptable collateral damage. They are our hope, our future, America's
conscience.''
Sincerely,
1. Trudee E. Able 2. Nikolaos Al-Khadra
SEY and Youth Outreach Specialist Survivor Leader, National Survivor
Minneapolis, MN Network (NSN)
Los Angeles, CA
3. Kimmi Alona 4. Jason Alva* Advocate
Rebecca Bender Initiative San Diego, CA
Denver, CO
5. Barbara Amaya, PhD 6. Brooke Axtell
Author, Advocate, and Senior Founder/Director, She is Rising
Technical Advisor, EPIC (Education Austin, Texas
Prevention and Intervention
Center)
Arlington, VA
7. Ann Marie Babb 8. Heidi Balogh
VP Business Operations, WCWT Center Milwaukie, OR
Middletown, OH
9. Trisha Baptie 10. Jewell Mikaela Baraka
Community Engagement Coordinator, Kansas City, MO
EVE
Vancouver, BC
11. Cathy Bauer 12. Alyssa Beck
Phoenix, AZ Advocacy Specialist, Delores Barr
Weaver Policy Center
Jacksonville, FL
13. Nicole Bell 14. Rebecca Bender
Executive Director, Living In CEO & Founder, Rebecca Bender
Freedom Together Inc. Initiative
Worcester, MA Grants Pass, OR
15. Alisa Bernard 16. Wendy Berry
Survivor Advocacy Coordinator, The Survivor/Advocate
Organization for Prostitution Fruitland, ID
Survivors (OPS)
Seattle, WA
17. Tammy Bitanga 18. Ellen Blair
Peer Support Specialist/Community Knoxville, TN
Outreach manager, Ho'ola Na Pua
Honolulu, HI
19. Jennifer Brooks-Hardy 20. Kathy Bryan
Peer Support Coordinator, Healing Director of Elevate Academy,
Action National Trainer, Author, Mentor,
St. Louis, MO Rebecca Bender Initiative
Heber Springs, AR
21. Autumn Burris 22. Kathleen Campbell
Founding Director, Survivors for Puxico, MO
Solutions
Denver, CO
23. Vednita Carter 24. Christine Cesa
Founder, Breaking Free and Vednita Survivor Leader/Advocate
Carter Ministries Los Angeles, CA
St. Paul, MN
25. Maui Chacon 26. Penny Christopoulos
Survivor Advocate Norfolk, VA
Anaheim, CA
27. Angie Conn 28. Amber Copeland
Survivor Leader Morgantown, WV
Buffalo, WV
29. Laurin Crosson 30. Jeanine Daley
Founder/Director, Rockstarr.org Worcester, MA
Salt Lake City, UT
31. Ne'cole Daniels 32. Delores Day
Founding Co-Chair, World Without Executive Director, Restore
Exploitation Innocence Ranch
Olympia, WA Waukesha, WI
33. Emily Dickson 34. Kelly Dore
Empowerment Advocate, Family Executive Director, Colorado Human
Assistance Program Trafficking Survivor Coalition
San Bernardino, CA Denver, CO
35. Eva Eakins 36. Jerome Elam
Hesperia, CA President and CEO, Trafficking in
America Task Force
Gainesville, FL
37. Amy Engle 38. Telisia Espinosa
Marriage and Family Therapist, Be A Voice
Phoenix Dream Center Tampa, FL
Phoenix, AZ
39. Natasha Falle 40. Hazel Fasthorse
Co-founder/Director, Sex Trade 101 Case Manager/Advocate, Beloved
Toronto, ON Atlanta
Atlanta, GA
41. Kailee Favaro 42. Danielle Trinity Foreman
East Nassau, NY Attleboro, MA
43. Allison Franklin 44. Freitag
Houston, TX LADC, Director of Action169
Fairmont, MN
45. Jessika Fuhrmaneck 46. Noel Gomez
Writer/Speaker/Advocate, Treasures Advocate, The Organization for
Ministry Prostitution Survivors (OPS)
Nashville, TN Seattle, WA
47. Danielle Goodwin 48. Jessica Groghan
Survivor Leader Fort Collins, CO
Seattle, WA
49. Jennifer H. 50. Athena Haddon
Group Facilitator, Prevent Child Port Huron, MI
Abuse NJ
New Brunswick, NJ
51. Kathi Hardy 52. Denise Harris
Freedom From Exploitation HSTSI Facilitator And Survivor
San Diego, CA Advocate, Convergence Resource
Center
Milwaukee WI
53. Marian Hatcher 54. Keisha Head
Senior Project Manager/Human Lead Case Manager, Salvation Army
Trafficking Coordinator, Cook Conyers, GA
County Sheriffs Office
Chicago, IL
55. Hollerbach 56. Jolene Hollis
Monroe, WA Mentor, Trainer, Case Manager
Long Beach, CA
57. Margaret Howard 58. Corina Hernandez
LCSW Hemet, CA
Saint Louis, MO
59. Jeanet T. Ingalls 60. Beth Jacobs
Survivor Advocate, Shout Out Loud Field Instructor, Truckers Against
Productions, Inc. Trafficking
Lenox, MA St. Cloud, MN
61. Cherie Jimenez 62. Jeri Jimenez**
Director, EVA Center Co-founder, Survivor 2 Survivor
Boston, MA Portland, OR
63. Ann Marie Jones 64. Judith
Peer Mentor, Dawns Place Beverly Hills, CA
Philadelphia, PA
65. Kristine 66. Kathleen Kruger
Tacoma, WA Mount Olive Lutheran Church
Minneapolis, MN
67. Jessica Lamb 68. Judith Latner*
Founder and Director, Atlanta Buckeye, AZ
Redemption Ink, Inc.
Atlanta, GA
69. Maryann Lennon 70. Marcela Loaiza
Survivor, Rebecca Bender Initiative Survivor and Writer, Marcela Loaiza
Palm Bay, FL Foundation
Las Vegas, NV
71. Jacquelynn Loos 72. Shawnee Love HHD, PhD**
Peer Support Specialist, REST Doctor/Advocate/Survivor/Warrior/
Seattle, WA Movements Maker, Purple Hearts
Missions Possible & Healthy
Horizons; Native American Warriors
Task Force
The Americas
73. Megan Lundstrom 74. Marti MacGibbon
Executive Director, Free Our Girls Speaker, Author, Survivor Leader
Greeley, CO Sacramento, CA
75. Jasmine Grace 76. Emily Martin
Marino Director, Bags of Hope Mission 21
Boston, MA Rochester, MN
77. Jennifer Martin 78. Courtney Mattinson
Social Media and Events Marietta, GA
Coordinator, Rethreaded
Jacksonville, FL
79. McKinley 80. Manon Michaud
Austin, TX Activist
Montreal, QC
81. Robin Miller 82. Kathleen Mitchell
Vancouver, BC Founder, DIGNITY Programs
Phoenix, AZ
83. Jeri Moomaw 84. Audrey Morrissey
Executive Director, Innovations HTC Associate Director, My Life My
Olympia, WA Choice
Boston, MA
85. Emmy Myers 86. Darlene Pawlik
CEO & Founder, Lacey's Hope Project Speaker, The Darling Princess
Slinger, WI Raymond, NH
87. Alexandra (Sandi) Pierce 88. John Price
President, Othayonih Research Reverend
Saint Paul, MN Kansas City, MO
89. Sharon Robbins 90. Dr. Katariina Rosenblatt, PhD
Jubilee Havens Founder, There Is Hope For Me, Inc.
Ocean Springs, MS Orlando, FL
91. Rosseland 92. Marjorie Saylor
Survivor Mentor, Delores Barr Founder/Executive Director, The
Weaver Policy Center Well Path
Jacksonville, FL Escondido, CA
93. Andrea Shields 94. Carrie Smals
Marceline, MO Supervisor of a non-profit
organization for survivors of
human trafficking
Jacksonville, FL
95. Tina Smithee 96. Elle Snow
Caseworker, Catholic Charities Founder & Board President/Public
Macon, GA Speaker, Game Over
Eureka, CA
97. Joli Sparkman 98. Lorena Spencer
RIA house Owosso, MI
Millis, MA
99. Jen Spry 100. Cassandra Strom
RN, Being A Voice LLC Public Relations Director, New Life
Douglassville, PA Refuge Ministries
Trophy Club, TX
101. Brittani Stugart 102. Carolyn Sunseri
Los Angeles, CA McKinleyville, CA
103. Shelley Sylvester 104. Kristen Tebow
Madison Heights, MI CEO, Founder, Youth Trust Project
Lawrence, KS
105. Melanie Thompson 106. Tori Thompson
Survivor Advocate Free Our Girls
Queens, NY Greeley, CO
107. Rosalyn Vasquez 108. Jeanette Westbrook, MSSW
Survivor Advocate Speaker and Advocate, SPACE
Seattle, WA International
Louisville, KY
109. Pamela A. White 110. Pamela Willisaa
Shared Hope International Survivor Leader/Expert
Washington, DC Atlanta, GA
111. Shandra Woworuntu 112. Erin Wright
Director, Mentari Carson City, NV
New York, NY
113. Sarah Zalonis
Consultant, Polaris Project
Washington, DC
* Parent of a child sex trafficking survivor
** Survivor and parent of a child sex trafficking survivor
______
Response to Written Question Submitted by Hon. Catherine Cortez Masto
to Abigail Slater
Question. We want to be sure Internet platforms are held liable
when they knowingly assist, support, or facilitate a human trafficking.
Could you describe your concerns with the amended ``participating in a
venture'' language and explain what mens rea standard you believe is
used? How can we clarify that the knowledge standard for secondary
liability in Section 1591 so that it applies to specific instances of
illegal conduct?
Answer. As currently drafted, SESTA would amend the Federal human
trafficking laws to impose criminal liability on any entity that
engages in knowing conduct that assists, supports, or facilitates a
violation of a human-trafficking crime. (Section 4(2)). This standard
does not work for Internet companies, whose very functions assist,
support, or facilitate both good and bad activities on the Internet.
For example, a company that provides access to the Internet knows that
such access facilitates every activity on the Internet--whether lawful
or not. To address this concern, SESTA should modify the criminal
liability standard to tighten the nexus between an Internet company and
a violation of Sec. 1591. This can be done by limiting liability to an
entity that has actual knowledge of the conduct in question and
materially assists in furthering such conduct.
______
Response to Written Question Submitted by Hon. Catherine Cortez Masto
to Eric Goldman
Question. Do you interpret the current provisions in SESTA as
wiping out Good Samaritan protections? If so, how can we amend the
legislation to ensure the proposed changes to the CDA do not override
Section 230 (c)(2)(A) protections?
Answer. I appreciate the opportunity to explain Section 230s Good
Samaritan mechanisms and how SESTA undermines them. The Manager's
Amendment dated November 3, 2017 attempted to address this issue, but I
don't think it accomplished its goal.
How Section 230 Currently Protects Good Samaritan Efforts
I believe Congress wants online services to voluntarily undertake
efforts to block or remove third party promotions for sex trafficking
and other illegal or objectionable third party content. I'll call these
efforts ``content moderation.''
Content moderation takes a nearly infinite variety of forms.
Content moderation includes initial decisions to publish or not, as
well as post-publication decisions to remove or not remove the content.
Content moderation can be manual or automated, and post-publication
decisions may be prompted by third party notifications (such as
takedown requests) or the online service's own diligence or monitoring
efforts.
47 U.S.C. Sec. 230(c) is captioned ``Protection for `Good
Samaritan' blocking and screening of offensive material.'' Both parts
of Section 230(c) support this goal. Section 230(c)(1) provides an
immunity for publishing third party content, including both its initial
decision to publish and any subsequent decision not to remove content.
I'll call these ``Publication'' decisions. Section 230(c)(2) provides a
safe harbor for refusing to publish third party content or subsequently
removing third party content. I'll call these ``Removal'' decisions.
Between the two subsections, Section 230(c) currently protects the full
range of content moderation efforts.
How SESTA Undermines Section 230s Good Samaritan Protection
SESTA enables online services to be sued or prosecuted for sex
trafficking promotions that third parties publish through their
service. Online services will be reluctant to undertake content
moderation efforts if they face liability for any sex trafficking
promotions that slip through, i.e., if they miss a promotion, review a
promotion but make a mistake, or take too long to find or remove a
promotion.
The Manager's Amendment preserves Section 230(c)(2)'s protection
for Removal decisions. However, this won't encourage Good Samaritan
efforts because: (1) online services don't fear being sued or
prosecuted for what they remove (and such risks usually can be
ameliorated by the online service's contract with the third party
users-publishers); (2) Section 230(c)(2)'s ``good faith'' requirement
undercuts the safe harbor's availability, and it substantially
increases defense costs because judges may enable wide-ranging
discovery into defendants' ``good faith''; and (3) online services may
abandon their content moderation efforts entirely rather than risk
being charged with knowledge of content they didn't catch.
Instead, SESTA effectively exposes online services to liability
only for third party content that they publish online or don't remove
quickly enough. This means online services principally need immunity
for their Publication decisions, not their Removal decisions. Section
230(c)(1)--not (c)(2)--provides the applicable immunity for content
Publication. Thus, by curtailing Section 230(c)(1), SESTA removes the
primary protection that online services rely upon when doing Good
Samaritan content moderation against sex trafficking promotions (and
all other objectionable content).
Proposed Language to Incorporate Good Samaritan Protections into SESTA
If Congress wants to ensure that online services continue to combat
sex trafficking promotions, I recommend saying so explicitly. To do
this, I propose SESTA add a new Section 230(g) to make it clear that
Good Samaritan efforts should not be punished:
The fact that a provider or user of an interactive computer
service has undertaken any efforts (including monitoring and
filtering) to identify, restrict access to, or remove, material
it considers objectionable shall not be considered in
determining its liability for any material that it has not
removed or restricted access to.
Alternatively, with some wording changes, this language could be
incorporated into Section 230(c)(2)(A).
______
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to Hon. Xavier Becerra
Question 1. Mr. Goldman and Ms. Slater argue that creating these
exemptions to the CDAs will have a chilling effect on the web platforms
that are monitoring their websites and pulling down these ads, because
they argue they could be held liable for knowing the content is there.
What is your response to this and how would law enforcement respond if
these platforms stopped monitoring their sites altogether?
Answer. There is undoubtedly a vigorous societal interest in free
speech. But that does not require States to turn a blind eye to
commercial entities that intentionally and knowingly facilitate and
profit from egregious criminal conduct. It is also important to protect
Internet platforms, which are important both to the economy and in the
lives of everyday Americans, from the sort of private litigation that
Congress feared in passing the original Communications Decency Act
(CDA). But the more expansive judicial decisions that we are concerned
with have gone further than that, and I believe that legislation will
help to restore the balance that Congress intended.
As to whether Internet companies will reduce their cooperation with
law enforcement due to such legislation, I would find it surprising if
responsible American companies would knowingly place children at risk
by turning a blind eye towards the sex trafficking of vulnerable
minors. A few irresponsible companies already do so, of course--and
that is the problem this legislation aims to give us tools to fight.
Human trafficking cannot be the cost of doing business.
Question 2. As a former Member of Congress and now as Attorney
General, you have seen this issue from both sides. As we know, there
was no way of predicting in 1996 that sites could serve at the hub for
soliciting and facilitating human trafficking. Do you believe Congress
intended with Section 230 to provide vast protections to those who
knowingly facilitate human trafficking? Under what circumstances do you
believe it is appropriate for Congress to revisit the laws it has
passed?
Answer. In my 24 years in Congress, there were instances where we
revisited laws for one good reason or another--sometimes because a law
was dated or because the underlying statute as written resulted in some
conflict or unintended consequence. Indeed, to keep our policies
current with the times, numerous major laws require reauthorization
every few years.
These admonitions are apt in this instance involving the
Communications Decency Act. No one in Congress (and I was a member of
the House of Representatives at the time) intended the CDA to be used
as a shield by human traffickers, nor do I believe that Congress
intended under the CDA to interfere with Federal or state criminal
prosecutions of child sex trafficking.
Nevertheless, there is now a court ruling that speaks directly to
the conflicts/unintended consequences in the application of the CDA and
the need for Congress to amend it to make it clear:
``If and until Congress sees fit to amend the immunity 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.'' \1\
---------------------------------------------------------------------------
\1\ People v. Ferrer, 16FE024013 (Cal. Superior Ct. Aug. 23, 2017)
The original CDA clearly exempts any Federal criminal prosecution
from its prohibitions. I believe the law also intended to exempt state
criminal prosecutions, but many lower courts, unfortunately, have not
agreed. The CDA is about protecting Internet service providers from a
proliferation of private civil actions; it should be limited to that
and not interfere with state or Federal criminal prosecutions.
______
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to Yiota G. Souras
Question 1. Some of the tech companies have argued that there is
already a Federal law, the SAVE Act, that can be used to prosecute
pimps who post sex trafficking ads and the online platforms who host
the ads. However, there has yet to be any Federal prosecution of
Backpage. I understand the SAVE Act assigned the higher ``knowledge''
standard to advertising sex trafficking. What impediments do you think
Federal prosecutors might face in bringing these cases?
Answer. Background to SAVE Act
Based on NCMEC's years of experience as the Nation's clearinghouse
on issues relating to missing and exploited children, we are aware that
child sex trafficking is a multi-faceted issue that requires an array
of legal tools to prevent and combat this horrible crime. The SAVE Act,
which was enacted as part of the Justice for Victims of Trafficking Act
of 2015, amended 18 U.S.C. Sec. 1591(a)(1) (the ``TVPRA'') which
addresses sex trafficking violations and added advertising as a type of
conduct that is criminal. Specifically, the SAVE Act criminalizes the
knowing advertising of a person where the advertiser knew the person
was under the age of 18 years old or force, threats of force, fraud, or
coercion were utilized in trafficking the person.
On December 11, 2015, almost immediately after the SAVE Act was
enacted, Backpage.com, LLC (``Backpage'') sued the Department of
Justice in the District Court for the District of Columbia challenging
the constitutionality of the SAVE Act. This litigation was dismissed on
October 24, 2016, with the court ruling that Backpage lacked standing
and the court lacked subject matter jurisdiction to decide the case on
its merits.
Given that the litigation challenging the constitutionality of the
SAVE Act was resolved just over a year ago, it is not surprising that
there have been no Federal prosecutions of Backpage utilizing this new
legal option to date. Complex Federal prosecutions, especially of large
scale sex trafficking operations, take substantial time and resources
to develop and initiate. It simply is too soon to determine whether the
SAVE Act, as some have argued, provides a more viable means for Federal
prosecutors to bring suit against online facilitators of sex
trafficking, such as Backpage.
While the SAVE Act did add advertising as a predicate act for sex
trafficking within the confines of the TVPRA, Federal prosecutors have
always been exempt from the barriers of the Communications Decency Act
(``CDA'') that apply to other forms of legal actions against online
companies such as Backpage. This fact highlights that the SAVE Act,
while potentially providing an additional legal avenue for Federal
prosecutors, is insufficient, standing alone, to combat online sex
trafficking.
Additionally, Backpage has disclosed that it faces an ongoing
Federal investigation, and there have been various public accounts
since then referring to this Federal investigation. Any prosecution
that arises from this investigation may rely on the SAVE Act, but it is
simply too early to know if, or how, Federal prosecutors will seek to
utilize the SAVE Act against a website like Backpage.
Potential Impediments for Federal Prosecutors Regarding the SAVE Act
One potential impediment that Federal prosecutors face in any
trafficking case involving the TVPRA is the ``knowing'' mens rea
standard embedded throughout the statute. The impact of this standard
is not unique to the SAVE Act, however it is likely a consideration for
Federal prosecutors as they evaluate potential legal options to utilize
against facilitators of online sex trafficking. As noted by California
Attorney General Becerra in his testimony before the Senate Commerce
Committee, fulfilling the ``knowing'' mens rea standard is a high
barrier for prosecutors to establish in any trafficking case.
SAVE Act Alone is Insufficient to Combat Online Sex Trafficking
While the SAVE Act potentially provides another legal tool for
Federal prosecutors to use against websites like Backpage, it does not
address the most significant impediment they face, namely the lack of
state criminal and civil legal support in the fight against online sex
trafficking. The volume of websites currently facilitating sex
trafficking requires that a wide range of legal resources, in addition
to Federal prosecution, be used to combat this crime.
As noted above, Federal prosecutors have always faced lower
barriers to pursuing criminal cases against websites like Backpage
because Federal criminal laws are specifically exempted from the CDA.
While it might have been reasonable in 1996, when Congress passed the
CDA, to anticipate that the Department of Justice could manage all
crime on the Internet, that is an unrealistic expectation in today's
world. Twenty-one years later, the volume and complexity of online
commercial transactions (and the corresponding rise in online criminal
activity) makes it unrealistic to assume that a single Federal agency
can manage all prosecutions of online crimes.
The problem, even as it relates solely to child sex trafficking, is
simply too big to address only from a Federal criminal perspective.
Over the past five years, NCMEC has received an average of 9,800
reports relating to child sex trafficking annually. Of these reports,
81 percent are related to the trafficking of a child on the Internet.
This problem afflicts every city and state across the country. While
these numbers are substantial, because there is no statutory
requirement to report the trafficking of a child to NCMEC and due to
the complexities in defining these crimes, we believe our report
numbers are just a small representation of the number of children being
trafficked online.
Given the pervasive, national scope of child sex trafficking
online, Federal prosecutors cannot be expected to combat this issue
alone. States and civil attorneys must be part of the solution. The
impact of online trafficking at a state and local level is well-known,
and it is not feasible to continue to deprive state attorneys general
of the ability to prosecute trafficking crimes affecting their
communities simply because perpetrators are online entities. The
joining of state prosecutorial resources from across the country to
combatting online sex trafficking will ease one of the more substantive
impediments that currently exists in fighting this crime.
Additionally, the rights of trafficking survivors to work with
civil attorneys in exercising their private right of action against
those who trafficked them in violation of the TVPRA (18 U.S.C.
Sec. 1595), also provides an essential tool in combatting online sex
trafficking. In 2003, Congress took the step of providing a private
right of action in the criminal code for sex trafficking victims to
pursue recourse in a civil action against those who participated in
their trafficking \2\. This private right of action is significant
because Congress does not always provide crime victims with such a
right as part of the criminal code. At the present time, this statutory
private right of action has been held to be barred by the CDA by a
recent appellate court decision, and therefore civil recourse by
trafficking survivors is all but thwarted when their trafficker is an
online entity. Legislative clarity regarding the ability of trafficking
survivors to pursue their civil private right of action should enable
civil attorneys to pursue legal actions against online traffickers,
develop valuable factual discovery, isolate trends in websites
facilitating online sex trafficking, and identify and support
trafficking victims. These actions also provide valuable underlying
support for Federal prosecutors.
---------------------------------------------------------------------------
\2\ A private right of action arising from criminal violations has
been granted by Congress in certain instances both to strengthen the
impact of criminal laws and to provide civil recourse for victim
compensation (e.g., the Anti-Terrorism Act (18 U.S.C. Sec. 2333(a);
Child Pornography Prevention Act (18 U.S.C. Sec. 2252A; Computer Fraud
and Abuse Act (18 U.S.C. Sec. 1836(b)(1)).
---------------------------------------------------------------------------
As noted above, NCMEC's experience has shown that combatting child
sex trafficking requires the marshalling of numerous resources, legal
tools, and avenues of recovery support for trafficking survivors.
Recent case law has shown that courts are narrowly interpreting the CDA
to preclude state attorneys general and civil attorneys from joining
efforts to combat online sex trafficking. While the enactment of the
SAVE Act provides another tool for Federal prosecutors, which may prove
valuable in future Federal prosecutions, it does not address a crucial
underlying impediment for Federal prosecutors, namely the preclusion of
state criminal and civil legal remedies to provide additional resources
to combat the volume of websites facilitating and supporting online sex
trafficking.
SESTA is a crucial step in the multifaceted approach needed to
combat this horrible crime online. Not only will it provide additional
resources to support the efforts of Federal prosecutors by enabling
state attorneys general and civil attorneys to join this fight against
online sex trafficking, but it also provides renewed support for
survivors in their access to justice.
Question 2. Much of the discussion around this issue has focused on
one website, Backpage.com. We know there are other bad actors online
that also knowingly facilitate sex trafficking. To what extent do you
believe this legislation will address the universe of Internet Service
Providers that knowingly engage and profit of these crimes?
Answer. The investigation of Backpage, undertaken in 2015 by the
Senate Permanent Subcommittee on Investigations (``PSI''), was the
catalyst for the introduction of the Stop Enabling Sex Traffickers Act
of 2017 (``SESTA''). However, SESTA is not a ``Backpage bill,'' and it
will have an impact, far beyond Backpage, in helping to deter, hinder,
and enable prosecution against other websites that seek to facilitate
the trafficking of children online.
Backpage has been recognized as one of the largest facilitators of
sex trafficking ads online. Based on NCMEC's experience, it also is the
focus of activity relating to child sex trafficking ads. Of child sex
trafficking reports submitted to NCMEC by members of the public, 73
percent relate to ads on Backpage.
While NCMEC handles large volumes of child sex trafficking reports
relating to Backpage, we are aware that there are many other websites
on which children are trafficked for sex. Because Backpage occupies
such an outsized portion of the online market for sex trafficking, it
is not surprising that it is the focus of discussion relating to this
crime or that the secondary marketplace below Backpage is occupied by
numerous smaller websites, most of which are not currently part of the
active public dialogue around sex trafficking websites. It is
anticipated that this will alter quickly if Backpage is removed from
the active marketplace for online sex trafficking.
Backpage has established that online sex trafficking is a wildly
lucrative criminal enterprise and, thus far, legally protected. In
other words, Backpage has shown other criminal elements online that
facilitating online sex trafficking is a ``low risk and high profit''
operation. Given the commercial potential of this activity, if Backpage
is removed, children will continue to be trafficked online because
other companies will compete to fill the void Backpage would leave
behind.
SESTA is designed to address these other sites that will fill the
void after Backpage and sites that will develop in the future by
enabling increased prosecutorial options and civil access to justice
and strengthening existing deterrence mechanisms and barriers to entry
into this illegal marketplace. SESTA's clarification regarding the CDA
and the TVPRA provides prosecutors and civil attorneys with a mechanism
to establish liability for any website that knowingly assists, supports
or facilitates sex trafficking. SESTA may be known as a ``Backpage
bill'' out of semantic convenience--because Backpage is the website
that crystallized our awareness of this crime and the courts' lack of
direction regarding how to deal with this crime--however, NCMEC is
aware that the clarifications and structure of SESTA can be equally
well-applied to many other websites that are facilitating the
trafficking of children for sex online.
[all]
| MEMBERNAME | BIOGUIDEID | GPOID | CHAMBER | PARTY | ROLE | STATE | CONGRESS | AUTHORITYID |
|---|---|---|---|---|---|---|---|---|
| Wicker, Roger F. | W000437 | 8263 | S | R | COMMMEMBER | MS | 115 | 1226 |
| Blunt, Roy | B000575 | 8313 | S | R | COMMMEMBER | MO | 115 | 1464 |
| Moran, Jerry | M000934 | 8307 | S | R | COMMMEMBER | KS | 115 | 1507 |
| Thune, John | T000250 | 8257 | S | R | COMMMEMBER | SD | 115 | 1534 |
| Baldwin, Tammy | B001230 | 8215 | S | D | COMMMEMBER | WI | 115 | 1558 |
| Udall, Tom | U000039 | 8260 | S | D | COMMMEMBER | NM | 115 | 1567 |
| Capito, Shelley Moore | C001047 | 8223 | S | R | COMMMEMBER | WV | 115 | 1676 |
| Cantwell, Maria | C000127 | 8288 | S | D | COMMMEMBER | WA | 115 | 172 |
| Klobuchar, Amy | K000367 | 8249 | S | D | COMMMEMBER | MN | 115 | 1826 |
| Heller, Dean | H001041 | 8060 | S | R | COMMMEMBER | NV | 115 | 1863 |
| Peters, Gary C. | P000595 | 7994 | S | D | COMMMEMBER | MI | 115 | 1929 |
| Gardner, Cory | G000562 | 7862 | S | R | COMMMEMBER | CO | 115 | 1998 |
| Young, Todd | Y000064 | 7948 | S | R | COMMMEMBER | IN | 115 | 2019 |
| Blumenthal, Richard | B001277 | 8332 | S | D | COMMMEMBER | CT | 115 | 2076 |
| Lee, Mike | L000577 | 8303 | S | R | COMMMEMBER | UT | 115 | 2080 |
| Johnson, Ron | J000293 | 8355 | S | R | COMMMEMBER | WI | 115 | 2086 |
| Duckworth, Tammy | D000622 | S | D | COMMMEMBER | IL | 115 | 2123 | |
| Schatz, Brian | S001194 | S | D | COMMMEMBER | HI | 115 | 2173 | |
| Cruz, Ted | C001098 | S | R | COMMMEMBER | TX | 115 | 2175 | |
| Fischer, Deb | F000463 | S | R | COMMMEMBER | NE | 115 | 2179 | |
| Booker, Cory A. | B001288 | S | D | COMMMEMBER | NJ | 115 | 2194 | |
| Sullivan, Dan | S001198 | S | R | COMMMEMBER | AK | 115 | 2290 | |
| Cortez Masto, Catherine | C001113 | S | D | COMMMEMBER | NV | 115 | 2299 | |
| Hassan, Margaret Wood | H001076 | S | D | COMMMEMBER | NH | 115 | 2302 | |
| Inhofe, James M. | I000024 | 8322 | S | R | COMMMEMBER | OK | 115 | 583 |
| Markey, Edward J. | M000133 | 7972 | S | D | COMMMEMBER | MA | 115 | 735 |
| Nelson, Bill | N000032 | 8236 | S | D | COMMMEMBER | FL | 115 | 859 |
Disclaimer:
Please refer to the About page for more information.