There is a small political movement afoot to combat child sex trafficking online. Representative Ann Wagner of Missouri recently introduced a bill called the Stop Advertising Victims of Exploitation (SAVE) Act, which would make it unlawful to knowingly advertise certain commercial sex acts. The bill has quickly gained co-sponsors, and it joins other bills that are intended to target sex trafficking. Although SAVE does not distinguish between online advertisers and print advertisers (indeed, it does not mention anything Internet-related), its sponsors have stated that the bill is “designed to close Internet marketplaces that host advertisements for the commercial exploitation of minors.”
Prostitution and child sex trafficking in America is an enormous underground industry that has moved from the streets to online marketplaces like Backpage.com, a classified advertising website. Unfortunately, law enforcement and prosecutors are finding it difficult to fully thwart online sex trafficking because Backpage and other websites are hiding behind Section 230 of the Communications Decency Act, which shields Internet service providers (ISPs) from liability for third party postings. Courts have ruled that this section provides immunity to websites that host classified ads, even if there are ads for prostitution or child sex trafficking. This immunity protects ISPs against both state criminal prosecution and civil suits by victims.
This wrinkle in the law has become such a concern that the National Association of Attorneys General (NAAG) wrote members of Congress last July, asking them to amend Section 230 and allow State governments to criminally investigate and charge ISPs that carry ads for child prostitution. Congress has not responded to NAAG’s specific request.
It remains to be seen whether the SAVE act and related bills will adequately address the problem of sex trafficking in online marketplaces. Indeed, none of the proposed legislation amends Section 230; nor do any of the bills allow victims to sue websites that host child prostitution ads. Additionally, they do not permit States to pass laws that would hold ISPs liable for sex-trafficking ads. Rather, the bills only seem to enhance federal prosecutorial tools that are used to combat websites like Backpage.
Assuming these bills gain more traction, they will undoubtedly run into free speech issues. If the laws are not narrowly tailored, Backpage and others may argue that they unduly restrict free speech. This argument has worked before. For example, the District Court for the Western District of Washington accepted Backpage’s First Amendment arguments and preliminary enjoined the enforcement of a Washington State law in part because the law would likely “chill a substantial amount of protected speech in addition to unprotected speech.” That law was similar to the SAVE act.
On the other hand, if the laws are too narrow, they may lose their effectiveness or be counterproductive. For example, under the SAVE act, a website would be liable if it had knowledge of the wrongdoing; thus, Backpage and others may be deterred from scanning content and, thereby, gaining knowledge of wrongdoing.