The Senate Commerce Committee held hearings this week on amending the tech industry’s safe harbor in the Communications Decency Act that protects pimps and other human traffickers who use the Internet to facilitate child rape. As became apparent in the hearing, the Internet Association (aka Google) is very much opposed to any change in its safe harbor protection. (Big Tech’s main safe harbors (aside from having the money to beat the litigation bejesus out of anybody including governments) are Section 230 of the Orwellian Communications Decency Act and the safe harbors in Section 512 of the Copyright Act often called the “DMCA” or the faux “DMCA license.)
One less obvious issue of great importance in Senator Portman and Senator Blumenthal’s bill (S.1693, The Stop Enabling Sex Traffickers Act of 2017, called “SESTA”) is amending CDA 230 to permit state prosecutors from bringing criminal complaints (and victims from bringing civil complaints) under the duly enacted laws of their states. This gives Big Tech considerable pause because The Little People (aka their users who make them rich) might be more likely to have their day in state court for these bad acts.
Let’s be clear–even if this were a 51 jurisdiction issue, the state laws aren’t going to be that different or complex. The state would prosecute Pimp X for selling Jane Doe into child sex slavery which is bad. The state prosecutors have to prove their case beyond a reasonable doubt. On the civil side, a parent like Ms. Ambrose (who testified at the hearing) could bring a case because her child was trafficked and murdered. She’d still have to win her case based on the applicable evidence standard, carry her burdens and overcome any affirmative defenses, as would living victims who sue for their harms.
These elements are unlikely to vary much from state to state.
Given the unimaginable number of these cases that occur every hour of every day and mostly online, it is just too vast a problem for federal prosecutors to shoulder alone. Indeed, state prosecutors have a duty to bring cases under their state’s laws but perps can get away with their depraved oppression of young women and men by conducting their business online where prosecution is less likely to occur. Courts block state law prosecutions because the federal law has been interpreted to pre-empt any state prosecutions. The SESTA legislation would fix this loophole.
So why wouldn’t we want our children to have all the help they can get? Why wouldn’t we want state prosecutors to be able to make these cases and why would we want the pimps to be able to hide in the shadows of the oxymoronic Communications Decency Act?
Thank goodness we have Professor Eric Goldman to enlighten us in this exchange (at about 1:42:00) with Senator Catherine Cortez Masto (D-NV):
SENATOR CORTEZ MASTO
MR. GOLDMAN, I’VE ONLY GOT ABOUT 1:26 LEFT. I UNDERSTAND YOU HAVE CONCERNS WITH STATES HAVING THAT AUTHORITY. I ASK WHY.
CORRECT. THANK YOU. SO THE QUESTION IS WHY DO I HAVE TO THE RESERVATION THAT STATE ATTORNEY GENERALS ENFORCING THE LAW, THERE ARE TWO DIFFERENT ISSUES IN THE BILL. ONE IS THE BILL WOULD AUTHORIZE STATE CRIMES TO BE NEWLY ENFORCED IN ADDITION TO FEDERAL CRIME, THERE’S SOME OVERLAP BETWEEN THE TWO. NOW, WE OPEN UP THE DOOR TO A WHOLE BUNCH OF NEW LAWS NOT PREVIOUSLY ENFORCED AGAINST THE INTERNET COMMUNITY. THOSE LAWS HAVEN’T BEEN APPROVED BY THE REST OF THE INTERNET, EFFORT TO IMPOSE THESE OTHER CRIMES ON THE REST OF THE INTERNET CREATES A POSSIBILITY THE STATE ITSELF, THE PEOPLE THAT AREN’T IN THAT STATE ARE HAVING THE LAWS APPLIED AGAINST THEM IN WAYS THEY MAY NOT HAVE HAD A CHANCE TO VOTE ON….
So glad he cleared that up. The Internet hasn’t approved state laws against child rape, so the 50 state attorneys general who back the SESTA legislation can go pound sand. You know who also didn’t get to approve either the state or federal laws against human trafficking?
Desiree Robinson, the daughter of witness Yvonne Ambrose. She was 16 and she was trafficked, raped and murdered. She never got to vote.
So forgive me if I don’t shed a tear for whether “the Internet” approves of laws that would call Desiree Robinson’s abusers to justice.
As her mother told the Committee:
Be the change you want to see in this world. Not only for justice for Desiree, but for all the countless Jane Does out here and the other little girls to come who don’t have a voice. We have to be the change now to protect our babies from websites like backpage.com that open the door for predators without any accountability.