By Nitasha Tiku, WIRED
December 12, 2017
Last month, tech companies, anti-sex-trafficking advocates, prosecutors, and legislators celebrated a hardwon compromise on a bill designed to help prosecutors and victims pursue sites such as Backpage.com that facilitate online sex trafficking. Now that consensus may be in jeopardy amid a controversial proposed amendment to the House version of the same bill, which had 170 cosponsors and was expected to sail through without incident.
Both bills had focused on altering Section 230 of the Communications Decency Act, which grants websites immunity for material posted by others. Those bills would remove the liability shield for “knowingly” publishing material related to sex trafficking.
The new proposal would remove the shield for publishing with “reckless disregard,” but only if "intent" is first proven to facilitate prostitution. The bill does that by creating a new crime under the Mann Act, an infamous 1910 law also known as the White Slavery Act, for using a website to promote or facilitate prostitution. Anti-sex-trafficking advocates say looping in the Mann Act introduces a new element that could upset the delicate compromise; they also fear it will hurt the bill’s chances of becoming law, because groups like Black Lives Matter believe the Mann Act has been applied discriminatorily and should be repealed.
The advocates suspect tech-industry lobbyists are behind the new approach. In late November, more than 30 anti-sex-trafficking groups and activists, including Rights4Girls, Shared Hope International, Consumer Watchdog, and Cindy McCain sent a letter to members of the House to “express our objection to recent efforts by some in the tech sector to undermine this proposed legislation.” On Monday evening, the same group sent another letter addressed to the ranking members of the Judiciary Committee, ahead of a planned Tuesday committee meeting to mark up the new bill.
Although the new letter does not mention the tech industry’s role, some advocates point out that the language in the amendment closely mirrors a suggestion made by Chris Cox, a former congressman and lobbyist who serves as outside counsel for NetChoice, an advocacy group funded in part by Google. NetChoice declined to say whether Google was one of its larger donors, but noted that it has two dozen members. “We don’t speak for any one member, not do we represent any members,” spokesperson Carl Szabo, the group’s vice president, told WIRED.
Advocates also point to an email from a lawyer for the Judiciary Committee as another sign that that tech firms may have been involved. They believe the Nov. 8 email from Margaret Barr was intended for tech industry lobbyists, but mistakenly reached additional recipients. In the email, Barr outlines the changes to the bill, then writes that the committee believes the new language “will sufficiently protect your clients from criminal and civil liability, while permitting bad actors to be held accountable.” The advocates think Barr was addressing tech lobbyists because the initial opposition to the bill from companies like Google was driven by concerns about liability. Barr referred questions a spokesperson for the Judiciary Committee, who did not respond to a request for comment.
The new approach was introduced by Representative Ann Wagner (R-Missouri). Wagner’s office says the changes were made with the support of the Department of Justice, local district attorneys, and advocates. Her office provided a letter of endorsement from the National Association of Assistant United States Attorneys and two nonprofits that support the new approach: Freedom Coalition, a right-wing Christian organization that is not focused on human trafficking, and US Institute Against Human Trafficking, another faith-based group.
In a statement to WIRED, Wagner says, “I am adamant that Congress passes legislation that will prevent victimization, not only via Backpage.com but also the hundreds of other websites that are selling America’s most vulnerable children and adults.”
Senate sponsors of the bill do not support the changes. In a statement to WIRED, Senator Richard Blumenthal, the Democratic cosponsor of the Senate bill, says, “This legislation’s priorities are shamefully misplaced. There is no good reason to proceed with a proposal that is opposed by the very survivors it claims to support, particularly when the alternative is a carefully crafted measure supported by all major stakeholders.”
Senator Rob Portman, the Republican cosponsor, says the new proposal “ is opposed by advocates because they’re concerned it is actually worse for victims than current law.”
The Internet Association, a key tech trade group, switched its view to support the Senate bill, known as the Stop Enabling Sex Traffickers Act, shortly after representatives of Google, Facebook, and Twitter faced two days of criticism from lawmakers for their roles in enabling Russian meddling in 2016 election. People familiar with the matter said Facebook was central to the group switching its position, and that Google went along reluctantly.
A few days after Internet Association announced its support, Facebook COO Sheryl Sandberg wrote a Facebook post in support of the bill. Facebook declined to say if it is supporting the new House approach, known as Allow States and Victims to Fight Online Sex Trafficking Act.
In a statement to WIRED, Facebook said: “Facebook prohibits child exploitation of any kind, and we support giving victims of these horrible crimes more tools to fight platforms that support sex traffickers.”
After the Internet Association endorsed the bill, Google assured Senate offices that it would stop lobbying efforts to derail the bill, according to a person familiar with the matter.
“I hope Google is not working at cross purposes with the survivors who are desperately seeking redress,” says Mary Mazzio, a filmmaker who has been active in the effort to hold websites more accountable for trafficking on their pages.
The Department of Justice and Google did not respond to requests for comment.
Lauren Hersh, a former prosecutor and national director of World Without Exploitation, a national coalition of 130 groups, met with lawmakers Monday to tell them that she and other advocates do not support the House bill. “We just want to slow this process down in the House. Our ask is to not have this go to Judiciary [Tuesday]. All the steps that were taken to [achieve] compromise on SESTA, we want that to happen here.”