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Sex Trafficking Can Be Stopped Without Destroying Free Speech and Innovation

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In an attempt to curb online sex trafficking, Congress may destroy the internet as we know it, while not actually stopping trafficking. The bill being proposed is so troubling, that even Sen. Kamala Harris, who has led crusades against sex trafficking in the past, has not come out in favor of it yet.

The Stop Enabling Sex Traffickers Act of 2017 (SESTA), introduced by Sen. Rob Portman (R-OH) would do little to stop the issue, while threatening the future of free speech and innovation on the internet. SESTA aims to overhaul parts of Section 230 of the Communications Decency Act (CDA), which protects internet services from being held liable for offensive content posted on their sites by third parties.

Sex trafficking is horrible when it happens, but it provokes hysterics and exaggerations. Data that came out last month shows that in spite of the people claiming that sex trafficking is the newest, most terrible problem, most states have close to zero arrests related to it. In Florida, for example, of the 105 investigations into trafficking in 2016, none lead to an arrest..

Supporters of SESTA argue that CDA does not go far enough to hold internet services accountable. On the contrary, the author of the original CDA, Sen. Ron Wyden (D-OR), made it clear that the bill does nothing to prevent law enforcement from prosecuting criminal law, state law or intellectual property law. Individuals and advertisers can be held liable for any post that promotes illegal activity––CDA just protects the host services from frivolous lawsuits.

Additionally, supporters of the bill argue that the CDA, as it currently stands, leaves law enforcement handcuffed in prosecuting online sex trafficking. But they’re wrong. The CDA only prevents them from targeting online services for the third party content that appears on their sites. It does nothing to prevent law enforcement from going after the actual facilitators of sex trafficking, or any other illegal activity. For example, if a sex trafficker posted an ad on Facebook using language that Facebook’s algorithms may not have picked up on as related to sex trafficking, the sex trafficker could still be held liable under CDA, but Facebook could not.

There is even some wiggle room in current law that allows the government to hold sites accountable for profiting from illegal activities. Law enforcement officials in California are currently prosecuting a criminal case against Backpage, despite the fact that SESTA is not currently law. The pimping charges that were originally brought against Backpage executives have since been dropped, because of the sloppiness of the case from former Harris, who was serving as California attorney general at the time. But the state is still moving forward on prosecuting the executives on money laundering charges related to the site’s role in facilitating, or profiting from, prostitution. The notion that law enforcement does not have the ability to prosecute sex trafficking cases because of CDA is flat out erroneous.

Additionally, CDA offers specific protections for internet services that take a “good faith” attempt to block obscene or offensive content that ends up on their site. Websites like Facebook and Google have utilized the good faith provision and created strict community guidelines that allow them to remove all sorts of obscene material.

For example, Facebook removes any sexually explicit content or anything that solicits sexual activities. The social media giant even goes as far as banning consensual adult nudity on its site to “protect” its audiences.

During a Senate Commerce Committee hearing last month, Eric Goldman, a law professor at Santa Clara University, who focuses on internet law, highlighted why SESTA would lead to less responsible behavior from internet services. He argued that prior to CDA, companies had to either accept liability and enact costly editorial measures for third party content, or essentially ignore moderating any third party content to avoid liability. SESTA would lead these sites to stop moderating content altogether, because of the liability issue, thus creating a situation where sex trafficking content could become rampant online.

Many groups and individuals that work with sex trafficking victims have expressed grave concern with SESTA, as well. Freedom Network, the largest network of anti-trafficking service providers, has said the changes SESTA proposes would “deter responsible website administrators from trying to identify and report trafficking.” Freedom Network also argued that SESTA would push those listing these services further into the shadows, making it even harder to identify trafficking victims online. After all, light is the best disinfectant for heinous material.

There are also private organizations that have made it their mission to prevent trafficking. Thorn, for example, is a group that partners with tech giants and NGOs to conduct research and determine the best ways to prevent trafficking. In 2016, Thorn helped identify and protect 2,020 victims of child sex trafficking, worldwide. SESTA would effectively drive traffickers further to the depths of the dark web, making it harder for groups like Thorn to discover and report online trafficking.

There is no reason to gut a bill that has allowed free speech and innovation to thrive online. With tech groups and sex trafficking advocates both opposed to SESTA, Congress should take a hint and realize this legislation would be disastrous to the internet and do nothing to curb sex trafficking.

Dan King is an advocate for Young Voices and a journalist residing in Arlington, Virginia. He writes about free speech, mass surveillance, civil liberties and LGBT issues. He can be found on Twitter @Kinger_Liberty.

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