Explanation of New Senate Bill

March 21, 2018 marks a significant victory in the fight against human trafficking and commercial sexual exploration. In a 97-2 vote, the Senate voted to pass a combination of the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (“FOSTA”), H.R. 1865, and S.B. 1693, the “Stop Enabling Sex Trafficking Act of 2017″ (SESTA”) which will amend the Communications Decency Act of 1996 (“CDA”), 42 U.S.C. § 230, to ensure that prosecutions and civil suits against corrupt website owners who knowingly facilitate trafficking will not be blocked by so-called “Good Samaritan” immunity.

This bill makes two major changes that will aid prosecutors in their fight against online human trafficking. First, FOSTA/SESTA will amend the United States Code by adding in  a new statute, 18 U.S.C. § 2421A, which criminalized “using a facility of means of interstate or foreign commerce…[owning, managing, or operating] an interactive computer service…or [conspiring or attempting] to do so with the intent to promote or facilitate the prostitution of another person.” thus, under this new statute, when companies use their online platforms with the intent to promote or facilitate commercial sexual exploitation or human trafficking, they can now be held criminally liable. This amendment closes a significant gap in the existing law. Currently, companies with online platforms were virtually free to engage in as much promotion or facilitation of trafficking as they pleased because they were shielded by the CDA’s immunity provisions.

For years, companies with online platforms, such as Backpage.com, have been actively involved in the exploitation of others, all the name of their bottom line. Despite these blatantly irresponsible and immoral practices, these companies were often shielded from suit under §230(c),  which has been interpreted to provide immunity from liability for website owners who engage in screening methods, taken in good faith, to reduce illegal content on their sites. This “good Samaritan” immunity provision, however, has been missed by companies like Backpage.com to create a shield behind which they can actively engage in the facilitation of trafficking. For further information about Backpage.com and their illegal activities, see the Senate Investigatory Committee’s report and the CSE Institute’s policy paper supporting the SESTA which was introduced prior to FOSTA.

The proponents of FOSTA/SESTA recognized this fatal flaw in the CDA and, consequently, sought to amend it. Therefore, the second, and perhaps the more important, change that FOSTA/SESTA will make is to the CDA itself is to include a specific exception to this immunity under §230(e) which will permit both prosecutions and civil suits to proceed under the federal trafficking laws, 18 U.S.C. §§ 1591 & 1595, and their state analogs. This change will effectively ensure that there are no more cases like Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), where the court recognized that Backpage was complicit in the exploitation of the plaintiffs but could not provide any remedy for the plaintiffs under the law.

The passage of FOSTA/SESTA trough Congress signals that Congress is willing to take aggressive steps in bringing the extant law up-to-date to fight the issues that have arisen in today’s internet-drive society. The CSE Institute applauds their work in this area and wants to thank Senators Portman and Blumenthal and Representative Wagner for their tireless work on this issue. Now, more than ever, we are hopeful that Pennsylvania’s legislature will amend 18 Pa.C.S. § 3011 “Trafficking in Individuals” to include “advertises” as one of the predicate criminal acts to enable our Commonwealth’s prosecutors and plaintiff’s attorneys to sue under state law. This amendment would allow the state law to target trafficking where it happens most, online.

Written by Rhea Rhodes Esq., Director, CSE Institute, Villanova University.

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