by guest blogger Alex F. Levy
[Eric’s introduction: Alex Levy teaches Human Trafficking and Human Markets at Notre Dame Law School. She has written a timely and provocative article, The Virtues of Unvirtuous Spaces, about Backpage and online sexual commerce.
A sample of the article: “allowing Internet platforms on which sexual services are brokered to thrive may be key to apprehending traffickers and recovering victims….it is nonsensical to hold Backpage accountable for what traffickers do with it (engage in sex trafficking) but to simultaneously refuse to credit it for what law enforcement does with it (apprehend traffickers and recover victims).” This passage also stood out:
The war on Internet platforms is pageantry: a kind of theater designed to satisfy people’s need to identify and fight bad guys without regard to nuance or long-term outcome. But from a tactical standpoint, it is more than a distraction. Censoring these platforms means forfeiting a resource that naturally facilitates the recovery of victims.
I recommend the article to anyone who is interested in the topic.
While it’s clear that the proposed Stop Enabling Sex Traffickers Act of 2017 poses significant risks to free speech online, I think we should initially focus on SESTA’s efficacy. Will SESTA actually advance its goals? If the bill doesn’t help victims–or worse, hurts them–then it is bad policy, period, and we don’t even need to reach the collateral consequences it would also create. Sadly, the empirical support that SESTA will help sex trafficking victims is thin or non-existent. In this post, Alex explains how SESTA may *hurt* sex trafficking victims–which should make the bill a non-starter. ]
When courts first tackled the question of whether internet intermediaries should be held accountable for material they publish, they struggled to come up with the right analogy. Were computer networks more like bookstores, or like newspapers? Should they be treated like real property, like common carriers, like radio stations, or as something else altogether?
Congress finally addressed the issue in 1996. It found that the nature of the Internet called for an entirely new regulatory approach. Encouraging the proliferation of “political, educational, cultural, and entertainment services,” while minimizing the spread of “lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material, required careful consideration of what, exactly, online intermediaries were in a position to do.
Congress was aware — adamant, even — that information shared on the Internet would need to be constrained in some way. But it was also aware that computer networks weren’t the right ones to do the job. If intermediaries were burdened with potential liability for all the speech they published, they’d only be able to publish as much as they could screen. So instead, Congress decided “to maximize user control over what information is received by individuals, families, and schools,” to “empower parents to restrict their children’s access to objectionable or inappropriate online material,” and to “ensure vigorous enforcement of Federal criminal laws.” By passing Section 230, Congress entrusted a significant part of the regulation of the Internet to users, parents, and law enforcement.
More than two decades later, Section 230 allows people to do more than just set the terms of acceptable speech. It also empowers countless users — including the FBI, victim advocates, concerned citizens, family members, and nonprofit organizations, among others — to proactively fight atrocities such as human trafficking. By removing liability from internet intermediaries (such as Backpage), Section 230 enables intermediaries to serve as a natural pathway between victims and those who want to help them.
Due to its wide accessibility, Backpage has enabled people to find and recover family members (including with the help of journalists); nonprofits point to it as a resource for identifying and reaching out to victims; and scores of criminal indictments reveal its value as a point of connection between police and victims. Statistics also show how Section 230 may assist the fight against human trafficking: the National Center for Missing and Exploited Children (NCMEC), among others, reports that the majority of child sex trafficking reported to them involve Backpage.
None of this should be surprising: after all, it stands to reason that victims whose services are advertised in more visible places, like Backpage, are more visible to everyone — and thus easier to recover. In this way, Backpage sets a trap for traffickers: lured by the prospect of reaching a large, centralized repository of customers, traffickers end up revealing themselves to law enforcement and victim advocates. There’s nothing to suggest that Backpage causes them to be victimized, but plenty of reason to believe that, without it, they would be much harder to find. Section 230 allows Backpage to serve as a lifeline between trafficking victims and those who want to usher them to safety.
Nevertheless, the story is often told differently, with Backpage cast as a bad actor. The same advocates who talk about finding victims on Backpage often blame Backpage for their victimization, despite the fact that there’s no evidence of a causal connection between Backpage and sex trafficking (and indeed, there are good reasons to doubt that sex trafficking has skyrocketed in recent years, as many dramatically claim). But according to their version of the narrative, the fact that trafficking victims tend to turn up on Backpage means that Backpage is to blame for their harm — but, confusingly, not their recovery.
These advocates note, correctly, that Section 230 is crucial to Backpage’s functioning. The reason that Backpage can shine a light on human trafficking is because, thanks to Section 230, it can’t be punished for what it merely reveals. It’s crucial to note, however, that Backpage is legally accountable for what it does. Not only does Section 230 explicitly state that nothing about it “shall be construed to impair the enforcement of…any…Federal criminal statute,” but Congress specifically expanded human trafficking laws in 2015 to prohibit knowingly advertising (or knowingly benefitting from one who knowingly advertises) human trafficking. That’s all to say that if Backpage is trafficking people — or knowingly advertising human trafficking — the DOJ already has all the tools it needs to prosecute it.
But while Backpage isn’t allowed to traffic people, Section 230 currently prevents it from getting in trouble for shining a light on human trafficking. That’s the crucial distinction at the heart of Section 230, and it’s the provision that proves most infuriating to those who insist that causing victims to disappear from Backpage is going to somehow return them to safety. Because of Section 230, people who try to sue Backpage for simply revealing trafficking have been unsuccessful (if they could show that Backpage had engaged in trafficking, their suits would not be dismissed).
In order to get trafficking victims to stop appearing on Backpage, these advocates call for legislation to limit its Section 230 protection. Their most recent move is the “Stop Enabling Sex Traffickers Act of 2017” (“SESTA”), introduced in the Senate in early August. Among other things, SESTA would allow people to directly sue Backpage (and other intermediaries) for damages for human trafficking — even if Backpage didn’t do anything more than shine a light. If this passes, Backpage’s rational response would be to shut down its dating ads, and maybe even more. (Its “escort” section already shut down, months ago, but, as one journalist remarked, and as any quick search of Backpage will tell, commercial sex ads migrated to “casual encounters” immediately afterwards.) In other words, it will be forcing Backpage to censor its content, and causing traffickers to bring their victims to darker places. It is far less likely that family members, journalists, and nonprofit organizations will know where to find them when they do.
In my recent article entitled The Virtues of Unvirtuous Spaces, I wrote:
Backpage’s usefulness to antitrafficking advocates is, in fact, fully compatible with a profit-seeking approach. This is because Backpage’s value to traffickers as a means of gaining more customers and its value to law enforcement as a means of accessing and recovering more victims rise and fall together. Put differently, traffickers and law enforcement assess the value of Backpage with reference to the same characteristics, namely, accessibility and visibility of ads.
While more visibility invites more business, it also increases the possibility that victims will be discovered by law enforcement, or anyone else looking for them. By extension, it also makes it more likely that the trafficker himself will be apprehended: exposure to customers necessarily means exposure to law enforcement. This is true with respect to both the number and content of the posts. Any attempts to evade law enforcement will likely reduce profits; if traffickers avoid posting pictures of their victims’ faces, for example, their chances of attracting customers—who value information about the provider’s appearance—also drop.
Section 230 doesn’t cause lawlessness. Rather, it creates a space in which many things — including lawless behavior — come to light. And it’s in that light that multitudes of organizations and people have taken proactive steps to usher victims to safety and apprehend their abusers.
SESTA wouldn’t make Backpage more accountable for what it does — it already is subject to the same criminal laws as the rest of us, and courts have held that its civil immunity is limited to its functions as a publisher. What SESTA would do is make Backpage accountable for what it reveals. This would ultimately force Backpage to turn off the light, which, of course wouldn’t reduce trafficking; it would just shuttle it out of view. And it’s especially dangerous to confuse a problem’s disappearance with its resolution when, as here, it’s visibility that often leads to victims’ recovery.
Source: Eric Goldman Legal