The National Center for Missing and Exploited Children reported that in 2016, one in every six of the 18,500 runaways reported in the United States were likely victims of sex trafficking. In addition to using physical venues, traffickers also coerce victims through social media and other online platforms. Online media has frustrated efforts to decrease sex trafficking in the United States as unsuspecting minors with greater access and needs are easily drawn by predatory use of these platforms. The Stop Enabling Sex Traffickers Act of 2017 (SESTA) offers a way to decrease immunity for traffickers’ conduct online.
Articles 34 and 35 of the Convention on the Rights of the Child protects children from any form of sexual exploitation or trafficking. The United States Department of Homeland Security is among government bodies that categorize sex trafficking as a form of slavery in the United States. Thus, sex trafficking is further prohibited under the Universal Declaration of Human Rights and the American Convention on Human Rights, both of which condemn cruel or degrading treatment and prohibit slavery in any form.
The Communications Decency Act of 1996 (CDA) prohibits anyone from knowingly allowing use of interactive computer services to send communications that are obscene or connected to child pornography. However, Section 230 of the CDA includes a provision to protect users and providers who do not publish such content themselves from penalty. Accordingly, the First Circuit held that the CDA protected Backpage.com (hereby “Backpage”) from liability for violating anti-trafficking legislation because the CDA gave providers like Backpage broad protections to preserve First Amendment rights. SESTA may potentially fill gaps in the CDA’s language that courts are obligated to abide by and that allow traffickers to ensnare minors through interactive online platforms such as Backpage.
Introduced by Senator Rob Portman (R-Ohio) with twenty-eight bipartisan co-sponsors in response to an investigation of the use of Backpage’s classified advertisements, SESTA amends the CDA by specifically including facilitation of child sex trafficking as a violation of the CDA. SESTA clarifies that the CDA does not extend protection to providers whose online forums help traffickers advertise sexual services to be rendered by victims. It states that nothing in the CDA bars “enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sex trafficking.” Further, SESTA adds language to include facilitation within the definition of participating in a venture, so that online platforms can be legally complicit in sex trafficking.
Currently, the greatest challenge to prosecuting electronic sex trafficking practices is that courts must apply the language of the CDA and therefore must legally recognize that Backpage and similar platforms are merely hosts not liable for their users’ postings. Senator Ron Wyden, who co-authored the CDA, argued that the CDA does not allow for any violations of criminal law, including those against trafficking victims, as the law’s language currently stands. However, Senator Portman has stated that the courts’ rulings demonstrate that electronic practices encouraging sex trafficking cannot be prosecuted unless the law’s language itself is changed so that courts are no longer bound by semantics. The First Circuit’s ruling exemplifies how adjudication of sexually predatory practices on Backpage is narrowed to how protections are defined and can be interpreted under the CDA, regardless of ethical or statistical grounds.
Critics of SESTA find that it may compromise a free Internet and could wrongfully implicate other platforms whose providers willfully choose not to police the conduct on their platforms for fear of “knowing” and thus being complicit in users’ activities. However, SESTA does not alter definitions of terms such as “knowingly,” so the reference to anti-sex trafficking laws and liability for facilitation provides greater coverage for victims without penalizing providers who are otherwise unaware that they must report criminal conduct under existing laws. Further, three noteworthy technology and media entities have expressed support for SESTA: Oracle, 21st Century Fox, and Hewlett-Packard maintained that SESTA would help the technology industry fulfill its responsibility to specifically hold traffickers accountable.
SESTA is a necessary piece of legislation because although the government has a great interest in protecting online communications under the First Amendment, the government also has an equal if not greater interest in reducing child sex trafficking to come into compliance under both international and regional human rights treaties. Because courts are restricted in their interpretation, current laws have been insufficient to prevent traffickers from slipping through the cracks that the CDA has permitted to form online. SESTA could fill this void without compromising constitutional rights by simply reaffirming that laws protecting communications do not do so at the expense of protecting minors online.