One former lawmaker worries that a bill intended to curb online sex trafficking is too narrowly focused and could “sow chaos” by eliminating a consistent standard for prosecuting crimes committed on the internet.
“We need to have a solution to this problem that is consistent across more than 4,000 federal crimes and thousands more state crimes,” former Republican California congressman Christopher Cox said Tuesday at a House Judiciary Committee hearing on the Allow States and Victims to Fight Online Sex Trafficking Act. “We don’t have enough time in our lives to fix these crimes one at a time.”
Instead, Cox said the government should do more under existing laws to bring traffickers to justice.
As the House counterpart to the Senate’s Stop Enabling Sex Traffickers Act, the bill would amend Section 230 of the Communications Decency Act of 1996, a law that prevents websites from being held legally liable for content generated by users. As it stands, Section 230 immunity doesn’t apply in federal criminal cases, but the bills would eliminate immunity in state criminal and civil lawsuits as well.
Supporters of the legislation argue that because sites that facilitate sex trafficking often claim immunity under Section 230, additional legislation is needed to effectively sue them. However, because federal law already prohibits sex trafficking, Cox believes the government already has the jurisdiction to convict any party with “knowing conduct” that facilitates sex trafficking, like Backpage.com has been charged with previously.
“Section 230 was never intended to provide legal protection to websites that commit any crime,” said Cox, who helped pen the legislation along with then-congressman Ron Wyden in 1996. “If we enforced the statute the way it’s written, we wouldn’t be having this discussion.”
However, the issue of sex trafficking may be too widespread for the Justice Department to handle on its own, said Catholic University law professor Mary Leary, and courts’ broad interpretation of Section 230 immunity “stops victims and survivors at the courthouse door.”
Instead of “tying the hands” of state attorneys general and civil plaintiffs, she argued a bill like SESTA is needed to attack bad actors on every front. She said the success of a joint federal, state and local crackdown on online child pornography could provide a rough guideline for how to address the issue of sex trafficking.
While Cox acknowledged the need to bring together law enforcement officials at every level to combat the problem, he said the proposed legislation isn’t the most effective way to create a unified front. Instead, he favors creating a joint federal-state strike force to crackdown on sites like Backpage, and wants to extend the Travel Act, which allows state and local authorities to fight organized crime, to include businesses facilitating sex trafficking.
Both strategies would leave Section 230 unchanged, and preserve the single standard for prosecuting online crimes. Cox said creating a special exemption for sex trafficking within the bill would not only muddy the waters with a patchwork of differing state and local laws, but could also negatively impact the way judges rule on other crimes committed on the internet.
“Courts would have to give meaning to the fact that Congress singled out sex trafficking and no other offenses,” Cox said. “This would make it harder for them to reach the result we would all presumably want in, say, an internet terrorism case: that is, we would not want Section 230 to be a barrier to prosecution of a website that was complicit in creating web content in violation of laws against terrorism. Singling out one crime in a revised Section 230 could easily distort the results in other criminal cases.”