January is Human Trafficking Awareness Month and this short video briefly describes the issue of websites that knowingly profit from sex trafficking advertisements of children. It calls viewers to action by asking you to contact you senator to ask that SESTA be passed to close the loophole that allows this heinous criminal activity to continue.
Congress passed the Communications Decency Act (Title V of the Telecommunications Act of 1996) to protect children from exposure to Internet pornography. The act included a defense, Section 230, for Internet providers, protecting them from liability for material posted to their sites by third parties. Thus, if pornography or other illicit material is posted to a site by someone not associated with the site operator, the site was to be held harmless.
In Volume 17, Issue 1 of the Berkley Technology Law Journal, Paul Ehrlich discusses the Communications Decency Act in depth and describes the results of Section 230:
“Congress passed the Communications Decency Act (“CDA”)’ in 1996 to address the myriad problems surrounding the regulation of obscene, illegal, or otherwise tortious content found on the Internet. Many of the CDA’s provisions regulating decency have been struck down by the courts as violations of the First Amendment. One of the surviving elements is a congressional grant of immunity from suit to ISPs [Internet service providers] and other interactive computer services for content originating with third parties. The text of the statute relies on terms of art from the law of defamation, formally protecting interactive computer services from treatment as “publisher[s] or speaker[s].’ However, while defamation law recognizes a distinction between liability as a publisher and liability as a distributor, courts have unanimously read Section 230(c)’s grant of ISP immunity as covering both publishing and distribution liabilities. In doing so, courts took Congress’ desired balance between the competing interests of decency and efficiency and tipped the scales decisively towards efficiency. The effect of these rulings has been the emergence of a comprehensive immunity from suit for ISPs so long as the suits are based on content not authored by the ISP. Whether or not Congress intended this result, ISPs and other interactive computer services have used Section 230 as a complete defense against recent suits…”
Ehrlich continues in footnote 5 of this section, “Publishers are presumed to have more control over material disseminated and are therefore subject to strict liability. Distributors are subject to liability under a knowledge or negligence standard.” This interpretation would make it seem that once a distributor of third party information is made aware that there is a problem of defamation or otherwise illegal activity that then the distributor could be held responsible. Conversely, this is not the case.
Amending Section 230 is not an issue of free speech. This is an issue of illegal activity occurring in a public forum. Section 230 was well intentioned, but it has been used by companies as a place to advertise illegal conduct such as sex trafficking of women and children. Congress likely never intended this result, yet some courts have ruled that the 230 defense provides, in effect, blanket website immunity for all material posted by third parties on the sites.
In The Children’s Legal Right Journal, Abigail Kuzma eloquently explains these issues in her “A Letter to Congress: The Communications Decency Act Promotes Human Trafficking.” Kuzma describes the issue in great detail, provides substantial evidence for the need to amend the CDA, and also proposes possible amendments. She writes, “…it is critical that legislative action be taken to require all hosts of adult services sections to take preventive action against the posting of abusive ads. Such a bill could be drafted as an amendment to the CDA itself, the Children’s Online Privacy Protection Act (COPPA), the Trafficking Victims Protection Act (TVPA), or as a state law amendment that could be called the Internet Protection Against Child Trafficking Act (IPACT).” Please refer to her letter to learn more about the issues of human trafficking as a crime and human trafficking via the internet.
Business owners claim that illegal activity on their websites is not their responsibility because of Section 230 of the Communications Decency Act. Businesses that profit from these types of advertisements are using ignorance as an excuse so that they can claim they have no role in either prostitution or human trafficking. In order to stop human trafficking, we must take action to make access to this crime more difficult. The ISPs will do nothing to help modern day slaves as long as they believe that they are not an accessory to the crime because they have no liability or legal responsibility. However, if they knowingly profit from crimes such as human trafficking they are in fact aiding and abetting those crimes. Section 230 needs to be amended—not so that free speech is tarnished or diminished in any way, but so that people who are being used and sold can have a voice separate from their abusers.
-Kari C.
Sources:
Ehrlich, Paul. “Communications Decency Act 230.” Berkeley Technology Law Journal 17.1 (2002). web. 11 Jan. 2016.
Kumez, Abigail L. “A Letter to Congress: The Communications Decency Act Promotes Human Trafficking.” Children’s Legal Right Journal 34.1: 23-58. Web. 2 Feb. 2016.