The House of Representatives passed a bill this week that aims to combat online trafficking, targeting the sites that host ads relating to sex work. The bill has received a mixed reception, however, with some arguing it may be ineffective at achieving its goal.
The “Fight Online Sex Trafficking Act” would allow survivors of human trafficking to sue websites like Backpage, where people post advertisements for prostitution. Some of these ads, supporters of the bill claim, are actually for people who are victims of traffickers.
This new bill would amend the Communications Decency Act to allow lawsuits against websites like Backpage if they are found to be in violation of sex trafficking laws.
Knowingly promoting sex trafficking is currently a crime. Previously, however, the Communications Decency Act would have shielded the sites against these suits as websites were not considered to be liable for content posted by their users.
The bill was introduced by Rep. Ann Wagner (R-MO) and co-sponsored by a bipartisan Congressional group. It passed Tuesday by a vote of 388-25.
While the bill has clear bipartisan support, as well as support from some facets of the tech industry, the Department of Justice and a vocal minority of representatives from both parties have raised concerns that the legislation is unconstitutional and will be ineffective in actually fighting sex trafficking.
In a letter from Assistant Attorney General Stephen A. Boyd, the DOJ wrote that the bill’s requirements that prosecutors provide proof that a website benefited from sex trafficking, as well as evidence that the website knew the ad was for a minor or for someone who was coerced or otherwise forced into sex work, would make prosecution of the crime more difficult.
“While well intentioned, this new language would impact prosecutions by effectively creating additional elements that prosecutors must prove at trial," said Boyd.
Rep. Justin Amash (R-MI), the chairman of the House Liberty Caucus, said on Twitter that a provision in the bill that would allow for companies to be held liable for posts made before the law was passed rendered the bill unconstitutional.
“The Constitution reads: ‘No Bill of Attainder or ex post facto Law shall be passed.’ Congress just passed this ex post facto law by a vote of 388-25,” said Amash, explaining that he voted against the bill.
Amash’s concerns were echoed by Rep. Bobby Scott (D-VA), who said in a statement on his website that he felt as though the bill went too far and would hinder efforts to fight sex trafficking online.
“There are laws already on the books that have been successfully used by the Department of Justice (DOJ) to send executives of websites that promote prostitution to federal prison,” said Scott.
“Further, the bill will apply not only to online advertisers of sex trafficking, which Congress already criminalized in 2015 when we passed the SAVE Act (see 18 U.S.C. 1591), and punishes conduct that is much less serious than what is ordinarily viewed as 'sex trafficking.'”
Wagner disputes these claims in a statement, saying the bill will be a tool to put more people in jail for sex trafficking, and will deter websites from posting these kinds of ads.
“FOSTA will produce more prosecutions of bad actor websites, more convictions, and put more predators behind bars. It will give victims a pathway to justice and provide a meaningful criminal deterrent, so that fewer businesses will ever enter the sex trade, and fewer victims will ever be sold,” she said.
Grace Williams, president of the group Children of the Immaculate Heart, which serves those affected by human trafficking, believes that the bill could be beneficial.
In an interview with CNA, Williams said that the evolving nature of human trafficking — and its new reliance on various social media apps and websites — makes it tricky for authorities to arrest those who are responsible.
“[T]he problem is all of these platforms are making it a lot easier to reach victims and making it a lot harder for law enforcement to track down and prosecute because there's no image trail, no paper trail,” said Williams.
She said the bill appears to "give attorneys more means to to be able to pursue legal action" for these sites.
More importantly, Williams thinks the law will send an important message to websites.
“[W]e're sending a message to online forums, and various websites that using people for sex is not okay, and especially when their liberty is compromised or not even present.”
