Background for Cyber Law and Business Report

1. Stop Enabling
Sex Traffickers
Act of 2017
CLBR Backgrounder

3. 7,621 HUMAN TRAFFICKING CASES IN US
(2016)
77%
Involved Sex
Trafficking
•Victims
•83.9% Women
•31.6% Children
•80.7% Non-
Immigrant
•CA, TX and FL
•33.3% of all cases
Source - https://humantraffickinghotline.org/states

4. I Am Jane Doe
February 2017
Zeroing in on what one victims’
advocate calls the public square for
a modern-day form of slavery, Mary
Mazzio’s eye-opening documentary
reveals that the buying and selling
of tweens and teens, long
recognized as a plight in some
developing nations, is also very
much a domestic problem.
-- Hollywood Reporter

5. “No provider or user of an interactive
computer service shall be treated as the
publisher or speaker of any information
provided by another information content
provider“.
SECTION 230, COMMUNICATIONS DECENCY ACT

6. THE POLICY BEHIND
CDA SECTION 230
• The Congress finds the following: (1)The rapidly developing
array of Internet and other interactive computer services
available to individual Americans represent an
extraordinary advance in the availability of educational and
informational resources to our citizens. . . .
• (3)The Internet and other interactive computer services
offer a forum for a true diversity of political discourse,
unique opportunities for cultural development, and myriad
avenues for intellectual activity.
• (b)It is the policy of the United States—(1)to promote the
continued development of the Internet and other
interactive computer services and other interactive media;
• (2)to preserve the vibrant and competitive free market that
presently exists for the Internet and other interactive
computer services, unfettered by Federal or State
regulation;

7. GETTING AROUND SECTION 230
Not Interactive Computer
System
Distributor Liability
Moderator
Super-User Liability
Promissory Estoppel
Partial Responsibility for
Content Development
Site Marketing
or Text Claim,
Failure to Warn *
Design Site to Require
Illegal Content
Federal IP Claim
Federal Criminal
Conspiracy Prosecution
* On Appeal

8. Jane Doe v.
Backpages.com,
LLC, Case No.1:14-
cv-13870-RGS (D.
Mass. May 15,
2015)
• Congress has made the
determination that the balance
between suppression of trafficking
and freedom of expression should
be struck in favor of the latter in so
far as the Internet is concerned.
Putting aside the moral judgment
that one might pass on Backpage’s
business practices, this court has no
choice but to adhere to the law that
Congress has seen fit to enact.
• Decision affirmed by First Circuit
(2016), cert. denied by Supreme
Court (2016).

9. J.S. v Village Voice Media Holdings,
LLC (Wash. Sept. 3, 2015)
• Court Rejects CDA 230 Defense
• The allegations “if proved true, would show that
Backpage did more than simply maintain
neutral policies prohibiting or limiting certain
content.” The thrust of the allegations was that
Backpage’s website and content guidelines
were not simply neutral policies prohibiting or
limiting certain content but were instead
“specifically designed … so that pimps can
continue to use Backpage.com to traffic in
sex.”

10. October 2016
Backpage CEO Carl Ferrer
Arrested
• Charged with Pimping by
California
• Complaint Dismissed
Under CDA 230
• Cal AG Refiles as Money
Laundering and Pimping
Case

11. January 2017: Senate
Investigations Subcommittee
Report
• Backpage knowingly covered up evidence of criminal
activity by systematically editing its so-called adult ads.
• Backpage knows that it facilitates prostitution and even
child sex trafficking.
• 93 percent of Backpage’s ad revenue in 2011 stemmed
from its adult section.
• Of all the child sex trafficking reports submitted by
members of the public to the CyberTipline, more than
seventy-one percent (71%) relate to Backpage ads.”
(National Center for Missing and Exploited Children)
• Backpage shuts down “adult” ads in response, but ads
migrate to other portions of the site.

12. July 2017: New
Revelations
• “A contractor for the controversial
classifieds website Backpage.com
has been aggressively soliciting
and creating sex-related ads,
despite Backpage’s repeated
insistence that it had no role in the
content of ads posted on its site,
according to a trove of newly
discovered documents.”
• Backpage Philippine contractor
lured adult advertisers, even
creating ads for them.
Link: http://wapo.st/2sJpAwf?tid=ss_tw&utm_term=.d7fafab56961

13. July 13: Rep. Wagner Calls for
Criminal Investigation of
Backpage
We write to urge the U.S. Department
of Justice to immediately investigate
Backpage.com and bring the website
to justice under 18 U.S. Code § 1591
for knowingly advertising and
financially benefiting from
participation in sex trafficking.

14. S.1693 - Stop Enabling Sex
Traffickers Act of 2017
(SESTA) Aug. 1, 2017
• Senator Rob Portman (R-OH),
Chairman of Senate Investigations
Subcommittee
• 27 Co-sponsors
• The Communications Decency Act
is a well-intentioned law, but it was
never intended to help protect sex
traffickers who prey on the most
innocent and vulnerable among
us. This bipartisan, narrowly-crafted
bill will help protect vulnerable
women and young girls from these
horrific crimes.”

15. SESTA
• Amends Section 230 to clarify that
nothing in the section should be construed
to impair enforcement of any criminal or
civil actions federal trafficking statutes
(U.S.C. Title 18, Sections 1591 and 1595)
or any state criminal prosecution or civil
enforcement action targeting conduct that
violates the federal criminal law
prohibiting sex trafficking of children or
sex trafficking by force, threat of force,
fraud, or coercion.
• Amends U.S.C. Title 18, Section 1591(e) to
clarify that “participation in a venture”
encompasses knowing conduct that, by
any means, assists, supports, or facilitates
a violation of the section.

16. House Legislation:
Broader Reach
H.R. 1865 Allow States and Victims to Fight Online Sex
Trafficking Act of 2017 introduced by Ann Wagner (R-
MO) and 111 Co-sponsors.
Excludes from CDA 230
• “any State criminal statute that prohibits (i) sexual
exploitation of children; (ii) sex trafficking of children;
or (iii) sex trafficking by force, threats of force, fraud,
or coercion.”
• “any federal or state law that “provides causes of
action, restitution, or other civil remedies to victims of
(i) sexual exploitation of children; (ii) sex trafficking of
children; or (iii) sex trafficking by force, threats of
force, fraud, or coercion.”

17. Critics: Is SESTA Necessary?
• 2014 Stop Advertising Victims of
Exploitation Act (SAVE Act)
makes advertising sex
trafficking a crime.
• New facts may limit CDA 230
defense.
• Advocates – attacking business
model not just single company.

18. What State Laws
Would Apply?
• Could states impose new requirements
under the guise of regulating sex-
trafficking?
• Will this be an invitation to litigate and
create uncertainty as each state
interprets exceptions?
• Business groups – “language will have
the unintended consequence of allowing
opportunistic trial lawyers to bring a
deluge of frivolous litigation targeting
legitimate, law-abiding intermediaries
and create the potential for
unpredictable, inconsistent enforcement
by state authorities for political or
monetary gain.”

19. Critics: Is Reckless Disregard
Too Broad?
SESTA imposes criminal liability for assisting sex trafficking knowingly or
with reckless disregard of its criminality.
• What steps should a prudent service provider take to ensure they do not
have “reckless disregard” for publishing content from sex traffickers?
• Holding platforms liable if they have “knowledge” of certain user
activities will discourage websites from partnering with law
enforcement or otherwise engaging in voluntary initiatives to stamp out
trafficking on their sites, lest they be held to have effective knowledge
of user activities that could create legal liability.
• SESTA would increase operators’ incentives to censor even
constitutionally protected speech and would discourage them from
providing open fora for dialogue and exchange. SESTA would constrain
individuals’ ability to access information online and to find platforms
for their speech.

20. Critics: Unintended
Consequences
• Would driving Backpage out of business
make it more difficult for law
enforcement to monitor?
• Would SESTA force at risk companies to
move offshore?