Anti-sex trafficking law opposed by many internet companies likely to pass this week

Most people will agree that online sex trafficking should be stopped. However, a new bill aimed at doing that, which is likely to be signed into law this week, could have unintended consequences that broadly impact online publishers and the internet as a whole.

The legislation, called the Stop Enabling Sex Traffickers Act, would allow victims and prosecutors to pursue internet publishers and others that “knowingly” enable or facilitate trafficking. Here’s a high-level summary of the bill’s language:

This bill amends the Communications Act of 1934 to specify that communications decency provisions protecting providers from liability for the private blocking or screening of offensive material shall not be construed to impair or limit civil action or criminal prosecution under state or federal criminal or civil laws relating to sex trafficking of children or sex trafficking by force, fraud, or coercion.

The bill amends the federal criminal code to specify that the violation for benefiting from “participation in a venture” engaged in sex trafficking of children, or sex trafficking by force, fraud, or coercion, includes knowingly assisting, supporting, or facilitating the violation.

The law has mostly been opposed by technology companies because it amends section 230 of the Communications Decency Act,  which had shielded publishers from liability for content on their sites. Critics warn it will disproportionately impact smaller publishers. Many also fear it will impair free speech online.

Google and others have said they don’t oppose the spirit of the bill, just the specific rollback of online immunity for publishers. The company explained the nature of this opposition in a blog post last year:

While we agree with the intentions of the bill, we are concerned that it erodes the “good samaritan” protection and would actually hinder the fight against sex trafficking. While large companies are more likely to continue their proactive enforcement efforts and can afford to fight lawsuits, if smaller platforms are made liable for “knowledge” of human trafficking occurring on their platforms, there is a risk that some will seek to avoid that “knowledge”; they will simply stop looking for it. This would be a disaster. We think it’s much better to foster an environment in which all technology companies can continue to clean their platforms and support effective tools for law enforcement and advocacy organizations to find and disrupt these networks.

The measure grew out of a legal case against Backpage.com, brought by three women who argued they were forced into prostitution, which was then advertised on Backpage. Sex trafficking charges were brought against the online classifieds publisher’s officers — the site has been described by some as an “online brothel” — but were dismissed by a California court under the broad immunity provisions of the Communications Decency Act.

Some see the impending passage of the law as a sign of Silicon Valley’s diminished clout in Washington in the wake of myriad scandals surrounding “fake news” and the 2016 election. However, Facebook (at the center of a data appropriation controversy right now) did not oppose the bill as passed yesterday by the Senate.

In the Senate, only Democrat Ron Wyden and Republican Rand Paul voted against it. Wyden argued it would potentially lead to litigation against smaller companies that couldn’t defend against them.

This move can also be seen in the larger context of governments and others trying to make online publishers more directly responsible for the content that appears on their sites and platforms.