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H.R. 1865 (115th): Allow States and Victims to Fight Online Sex Trafficking Act of 2017

A new bill could become the first law to apply criminal penalties to website owners due to posts of that site’s users — or so Silicon Valley and tech advocates fear.

Context and what the bill does

Ever since a 1996 law, no internet website or company can be penalized for content a user posts. That’s why Facebook, YouTube, Twitter, or Reddit can’t be sued when anybody uses their platform to post hate speech or advocations of violence or terrorism.

The Stop Enabling Sex Traffickers Act would open a crack in that prohibition. The bill would allow the government to prosecute websites which knowingly help or promote sex trafficking, and also allow users to sue those websites.

The word “knowingly” is key there, as the legislation was sparked by the results a Senate investigative report in July titled “’s Knowing Facilitation of Online Sex Trafficking” which found that the website consciously allowed advertisements for child prostitution and other similar crimes.

Sen. Rob Portman (R-OH), who chaired the investigative committee that produced the report, is the lead Senate sponsor of the bill S. 1693. The legislation was also introduced by Rep. Ann Wagner (R-MO2) in the House as H.R. 1865.

What supporters say

Supporters argue the legislation removes a loophole which has unintentionally allowed one of the most heinous crimes to go unprosecuted when facilitated via internet.

“For too long, courts around the country have ruled that [websites like] Backpage can continue to facilitate illegal sex trafficking online with no repercussions,” Senate lead sponsor Portman said in a press release.

“The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. This bipartisan, narrowly-crafted bill will help protect vulnerable women and young girls from these horrific crimes.”

What opponents say

Opponents obviously don’t support sex trafficking, but they do worry that this could be the first step in a slippery slope, providing the first-ever federal legal precedent for going after and prosecuting websites for content that users post.

“This bill is overly broad and will be counterproductive in the fight to combat human trafficking,” said a statement from the Internet Association, an organization including Google, Facebook, Twitter, and Apple as members. “While not the intention of the bill, it would create a new wave of frivolous and unpredictable actions against legitimate companies rather than addressing underlying criminal behavior.

“Furthermore, it will impose new, substantial liability risks for companies that take proactive measures to prevent trafficking online, hampering the ability of websites to fight illegal activity,” the statement continued. “The bill also jeopardizes bedrock principles of a free and open internet, with serious economic and speech implications well beyond its intended scope.”

Odds of passage

The bill has attracted 32 Senate cosponsors, 21 Republicans and 11 Democrats. It’s also gained 148 House cosponsors, 95 Republicans and 53 Democrats.

Silicon Valley has often been able to defeat legislation it opposed. But that may be changing, as the “free pass” the industry had often received from both parties may be coming to an end amid several controversial moves by the tech industry that have drawn ire from both sides of the aisle.

It awaits a vote in the Senate Commerce, Science, and Transportation Committee, after receiving a committee hearing on September 19. It also awaits a vote in the Senate Commerce and Judiciary Committees.

Last updated Mar 1, 2018. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Apr 12, 2018.

Allow States and Victims to Fight Online Sex Trafficking Act of 2017

(Sec. 2) This bill expresses the sense of Congress that section 230 of the Communications Act of 1934 was not intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims. Section 230 limits the legal liability of interactive computer service providers or users for content they publish that was created by others.

(Sec. 3) The bill amends the federal criminal code to add a new section that imposes penalties—a fine, a prison term of up to 10 years, or both—on a person who, using a facility or means of interstate or foreign commerce, owns, manages, or operates an interactive computer service (or attempts or conspires to do so) to promote or facilitate the prostitution of another person.

Additionally, it establishes enhanced penalties—a fine, a prison term of up to 25 years, or both—for a person who commits the offense in one of the following aggravating circumstances: (1) promotes or facilitates the prostitution of five or more persons, or (2) acts with reckless disregard that such conduct contributes to sex trafficking.

A person injured by an aggravated offense may recover damages and attorneys' fees in a federal civil action.

A court must order mandatory restitution, in addition to other criminal or civil penalties, for an aggravated offense in which a person acts with reckless disregard that such conduct contributes to sex trafficking.

A defendant may assert, as an affirmative defense, that the promotion or facilitation of prostitution is legal in the jurisdiction where it was targeted.

(Sec. 4) The bill amends the Communications Act of 1934 to declare that section 230 does not limit: (1) a federal civil claim for conduct that constitutes sex trafficking, (2) a federal criminal charge for conduct that constitutes sex trafficking, or (3) a state criminal charge for conduct that promotes or facilitates prostitution in violation of this bill.

The amendments apply regardless of whether alleged conduct occurs before, on, or after this bill's enactment.

(Sec. 5) The bill amends the federal criminal code to define a phrase related to the prohibition on sex trafficking. Currently, it a crime to knowingly benefit from participation in a venture that engages in sex trafficking. This bill defines "participation in a venture" to mean knowingly assisting, supporting, or facilitating a sex trafficking violation.

(Sec. 6) A state may file a federal civil action to enforce federal sex trafficking violations.

(Sec. 7) This section states that this bill does not limit federal or state civil actions or criminal prosecutions that are not preempted by section 230 of the Communications Act of 1934.

(Sec. 8) The Government Accountability Office must report to Congress on information related to damages and mandatory restitution for aggravated offenses under this bill.