House Judiciary Hears Strong Support for Combating Online Sex Trafficking

There was bipartisan support during a House Judiciary Crime Subcommittee hearing (see here) Tuesday for action to combat online sex trafficking, but no clear consensus on the right legislative path. Ranking member John Conyers, D-Mich, pushed former Rep. Chris Cox, R-Calif., to defend his opposition to a carve-out to current law to make it harder for criminals to fall back on Communications Decency Act Section 230 immunity protections for websites and platforms. IBM backed a related bill.

“I can’t think of a better rule,” said Cox, defending Section 230, which he helped create in 1996, “but I can think of some better court decisions.” Cox opposes HR-1865, which has 149 co-sponsors, and the Stop Enabling Sex Traffickers Act (S-1693) because they would “sow chaos” in the legal system by creating a “unique” exception to what has been a uniform federal policy. Cox spoke for NetChoice, representing Facebook, Google, eBay and other e-commerce companies. Instead of amending Section 230, Cox proposed a series of things Congress do, including passing a concurrent resolution restating that 230’s “clear intent” denies protection to internet platforms that are even partly complicit in creating illegal content.

“There’s a lot that can be done right away,” Cox said in an interview after the hearing, saying he had meetings with members of Congress Tuesday to promote his ideas. Members at the hearing expressed support for a legislative approach, voicing deep concern with reports about online-aided sex trafficking crimes and the seeming inability of prosecutors to punish wrongdoers. “I have no sympathy for these slave owners, slave buyers,” said Rep. Ted Poe, R-Texas. “We need to fix this problem.” Subcommittee ranking member Sheila Jackson Lee, D-Texas, said she's committed to addressing the issue in a constitutional manner: “This is a very tough issue, but we’re all going to work on it.”

Some witnesses supported targeted amendments to Section 230 that would provide protection to online platforms but strengthen the ability to go after bad actors. The startup community is fully committed to finding a solution to the problem of online sex trafficking, said Evan Engstrom, executive director of Engine. “The problems we have identified with HR-1865 and S-1693 are significant but not impossible to fix,” Engstrom said. Both bills could “unintentionally” remove the incentive for websites to monitor criminal activity, he said, suggesting Congress consider a “safe harbor regime” that gives well-intentioned platforms protection while allowing them to address sex trafficking on their sites.

“There are some very bad actors," said Jeff Kosseff, assistant professor of cyber science at the U.S. Naval Academy and author of a book on Section 230. Targeted change "would not cause the internet to disappear," he said. The challenge is to find a way to punish bad actors without harming the tech sector, he said, saying he believes the law is essential to protecting an open internet.

Catholic University law professor Mary Leary praised the House legislation as a positive step toward "needed clarification" of Section 230. Because courts have created case law that gives an "overly broad interpretation" of the CDA, the result has been a form of "absolute immunity for online entities that deal in sex trafficking of adults and children. "Human trafficking crosses all boundaries," Leary said. "This must be met by a comprehensive response. Strong criminal laws are required as well as civil liability components."

With many in the tech community wary of amending Section 230, IBM Tuesday announced support for S-1693. It's "an important, necessary and carefully targeted step to address a serious and growing societal problem, said a letter to sponsor, Sen. Rob Portman, R-Ohio, and co-sponsor Sen. Richard Blumenthal, D-Conn.

The National Center on Sexual Exploitation objected to lack of testimony from victims of sex trafficking. A recent hearing on S-1693 included a witness who spoke through tears about her daughter's exploitation and ultimate death through an online trafficking site (see 1709190065).