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Home>Archives for Guest

September 15, 2017 by Guest

Law Professors Weigh in on Amending the CDA – Part 2

Q: We keep hearing that passing these bills will end the internet as we know it? What do you think of these claims?

These claims are misplaced.   For example, the Senate bill is a 4 page bill that simply clarifies how the CDA (passed in 1996) is affected by the TVPA, which was passed 4 years later.  It retains the immunity provision for Good Samaritans and will not substantively expose any good actor to increased liability, stifle creativity, or affect free speech.

In 1996 Congress had many goals with the CDA, most of which are mentioned in the “Findings” and “Policy” sections of the CDA.[1]  On the one hand, the Internet was in its infancy, and Congress wanted it to grow to its full potential.  That being said, it also worried that this nascent industry might allow access to sexually explicit material on a new scale.  Therefore, Congress struck a balance between these two concerns and passed the CDA as part of a wider system to limit the ability to access sexually explicit material online.  Congress also wanted to prevent service providers from being sued for screening out this material.  Thus, they created a Good Samaritan provision which protects Good Samaritan companies from being sued for their self- regulation to screen out explicit material.  It was never intended to give immunity to bad actors not engaged in self- regulation, but engaged in illegal activity, but that is how the tech industry has argued the CDA should function.[2]

Over two decades later, the Internet is no longer fragile or in its infancy.  Rather, it has developed significantly and is on very solid ground.  It has also grown criminally and Congress has learned two important facts.  First, the Internet is the largest marketplace where trafficking victims are sold.  Second, that bad actors are misusing the Good Samaritan protection to insulate them from liability for their criminal activity, arguing that the CDA provides absolute immunity because they are service providers.

These legislative proposals are narrow.  The Senate bill simply clarifies the CDA by including sex trafficking in the list of crimes Congress seeks to inhibit on the internet.  All these proposals will do is clarify and update the CDA but they do nothing to limit the Good Samaritan exemption.  Good Samaritans will continue to be protected just as they are now.  Bad Samaritans will not.

Q: How do these bills hold some bad actors, like Backpage.com, accountable without chilling free speech on the internet?

The claim of First Amendment deprivations are also misplaced allegations designed to preclude any common sense discussion of clarifying the CDA.  The First Amendment was intended to help a free and democratic society navigate these issues where criminality and speech can sometimes intersect.  The Free Speech provision was never intended to have certain topics taken off the table never to be analyzed.  These arguments that limiting internet service companies from partnering with bad actors to sell children online will chill speech are simply scare tactics designed to remove amending the CDA from any discussion.

The First Amendment is critical to our democracy, but has never been absolute.  For example, it does not protect offers to engage in illegal transactions.[3]  The CDA sought to address the problem of access to sexually explicit material online.  Congress intended to encourage corporations to limit this material, by protecting them from litigation for their efforts to actively screen such information.  Finding there was a disincentive to self-regulate, Congress explicitly stated one of its purposes was to remove this disincentive by encouraging limiting explicit material.  As such, it drafted the CDA to balance these interests.  As a result, §230(c)(1) recognizes that service providers cannot be treated like publishers of news and be held responsible for the third party content of news posted on their platforms.  §230(c)(2) provides for immunity by protecting ISP’s from litigation for their actions to restrict access, NOT for other criminal actions.  §230(e)(3) limits contrary state laws but does nothing to limit state efforts to enforce their laws consistent with the CDA.

Read Part 1 and Part 3 here. 
By Mary G. Leary, Professor of Law, Catholic University of America, Shea Rhodes, Director of Villanova Law School’s Institute to Address Commercial Exploitation, Chad Flanders, Professor of Criminal Law and Constitutional Law Scholar, St. Louis University, and Audrey Rogers, Professor of Criminal Law and the Internet, Pace University.

—

 

[1] 47 U.S.C.A. 230(a) & (b).

[2] How Google’s Backing of Backpage Protect Child Sex Trafficking, Consumer Watchdog (May 2017).

[3] U.S. v. Williams, 553 U.S. 285, 297 (2008).

September 14, 2017 by Guest

Law Professors Weigh in on Amending the CDA – Part 1

“Sex trafficking, like all social problems, requires a comprehensive response from many quarters.”

By Mary G. Leary, Professor of Law, Catholic University of America, Shea Rhodes, Director of Villanova Law School’s Institute to Address Commercial Exploitation, Chad Flanders, Professor of Criminal Law and Constitutional Law Scholar, St. Louis University, and Audrey Rogers, Professor of Criminal Law and the Internet, Pace University.

Q: Why isn’t federal criminal law adequate to address sex trafficking online? Why are state criminal liability and civil liability important?

Sex trafficking, like all social problems, requires a comprehensive response from many quarters: the criminal law, civil law, business regulations, etc.  These mechanisms are necessary to deter, prevent, and when prevention fails, punish trafficking or facilitating the trafficking of people.  For many crimes we look to federal, state, local, civil, criminal, medical, and educational institutions to respond.  Human trafficking is no different.

There is an important aspect of federal prosecution that is worth mentioning here: federal prosecution is discretionary.[1]  Because of the limited resources of the federal government, federal prosecutors do not and cannot take every case.  They select certain cases to handle based on a variety of factors.  Most criminal charges, therefore, take place on the local and state level.  For example, although it is a federal crime to distribute narcotics, the Department of Justice does not handle every narcotics case.  Rather, it selects a small number of cases, leaving the primary job of prosecuting these crimes to the states.

Now, let’s turn to the specific problem of human trafficking.  There is an enhanced need to allow states to enforce their trafficking laws against all bad actors because of the size of the problem and the many actors involved in it.  The problem of human trafficking is massive.  This is an extremely lucrative criminal enterprise[2] with many tentacles.  One of the reasons human trafficking is growing so rapidly is the large role the internet plays in its execution.[3]    We need many pressure points to contain and eradicate this form of victimization on both the state and federal level.  Indeed most of the prosecution of criminal cases of human trafficking is based on state laws.[4]

Furthermore, states have the right – indeed the obligation – to protect their citizens.[5] Since the founding of our nation, there have been many sources of criminal law for all forms of victimization.  States have their criminal codes for crimes that state legislatures see affecting their citizens.  The federal criminal code addresses federal crimes and these are forms of victimization that the United States Congress has identified as crimes with a federal interest.  While some crimes just have a federal interest – treason for example, most crimes are local and the federal government chooses to supplement the state criminal laws, not replace them.

In what other arena do we stop states from enforcing their laws?  In most crimes, and human trafficking is no exception, the amount of criminal activity is massive and we combat it with all the pressure points possible.  Take any crime – narcotics, child pornography, illegal firearms – our system depends upon all the actors in the system to handle these cases.  Can we possibly imagine telling states they cannot prosecute drug dealers or their co-conspirators, child sex predators or those that facilitate their access to children, or those that facilitate illegal trafficking of firearms?  No, of course we cannot.  Human trafficking is no different.

State and federal civil law is also an essential tool to fight online trafficking.  The TVPA and many state trafficking laws recognize that businesses play a role in human trafficking when they actually traffic in human beings, or knowingly benefit from participating in a joint enterprise of human trafficking, or conspire with human traffickers.[6] Given the number of businesses – such as massage parlors, internet companies, hotels – that fall into this category, it is essential that societal responses deter those entities from facilitating human trafficking.   That is why applying civil law deterrents is an essential component of a comprehensive response to human trafficking.  Allowing victims to sue companies who knowingly enter into joint ventures with human traffickers is a basic right of victims of crime.  Denying them that right by providing absolute immunity to service providers because the business is online is not sustainable or within the norms of our system of justice.

Thousands of children are involved in child sexual exploitation.  Some research suggests that 70% of exploited children are sold online.[7]  Even if the Child Sexual Exploitation and Obscenity Section of the Department of Justice devoted all its resources to combating online exploitation, it could not possibly stop a criminal epidemic of this size.  That is why all aspects of the law: criminal, civil, state, and federal are necessary.

Read Part 2 and Part 3 here.

—-

[1] USAM 9-2.020.

[2] Trafficking in Persons Report, U.S. Department of State 1 (2017); Belinda Luscombe, Inside the Scarily Lucrative Business Model of Human Trafficking, Time (May 20, 2014); http://www.ilo.org/global/topics/forced-labour/statistics/lang–en/index.htm;

[3] MARK LATONERO, CTR. ON COMMC’N LEADERSHIP & POL’Y, HUMAN TRAFFICKING ONLINE: THE ROLE OF SOCIAL NETWORKING SITES AND ONLINE CLASSIFIEDS 8 (2011); Mary Graw Leary, Fighting Fire with Fire: Technology in Child Sex Trafficking, Duke Journal of Gender, Law, and Policy, Vol. 21, No. 2 (2014)

[4] Trafficking in Persons Report, U.S. Department of State, 416 (2017).

[5] U.S. Const. Amend. X.

[6] 18 U.S.C. 1591, 1595.

[7]Robbie Couch, 70% of Sex Trafficking Victims Are Sold Online: Study, Huffington Post (July 29, 2014) http://www.huffingtonpost.com/2014/07/25/sex-trafficking-in-the-us_n_5621481.html

July 13, 2017 by Guest

Senate Hearing on the 2017 TIP Report

Today, the United States Senate Committee on Foreign Relations held an annual hearing with representatives from the U.S. Department of State to review the 2017 Trafficking in Persons Report. The State Department released the TIP Report on June 27th, where Secretary of State Rex Tillerson called for a “shared hope” among stakeholders that the 21st century will be the last to see human trafficking.

Committee Chairman Bob Corker (R-TN) presided over the meeting. He was joined by Ranking Member Ben Cardin (D-MD), along with committee members Bob Menendez (D-NJ), Todd Young (R-IN), and Tim Kaine (D-VA). The Honorable John J. Sullivan, Deputy Secretary of State, and the Honorable Susan Coppedge, Ambassador-at-Large, Office to Monitor and Combat Trafficking in Persons represented the State Department as the hearing’s witnesses.

The hearing gave Deputy Secretary Sullivan an opportunity to highlight specific countries that improved, or dropped, in their rankings. Both Afghanistan and Ukraine moved off of the watch list to Tier 2, while China, one of the most talked about reductions, fell to Tier 3 status.

A majority of today’s discussion concentrated on two countries in Southeast Asia, Malaysia and Burma, whose TIP ranking improved in 2017,raising questions among the committee’s senators. Senator Menendez questioned Malaysia’s rise to Tier 2, stating that the sheer number of human trafficking victims in the country does not qualify its removal from the watch list. Malaysia’s climb from Tier 3 to Tier2-Watch in 2015 caused debate among government official, with some claiming that the decision was based on a political agenda. Ambassador Coppedge defended the State Department’s decisions, stating that rankings are determined purely off of the country’s efforts related to human trafficking.

United States Senate Committee on Foreign Relations, Hearing Review on the 2017 TIP Report

Burma’s ranking was also questioned, specifically in regard to child soldiers. Secretary of State Rex Tillerson recently removed Burma, which moved back up to Tier 2-Watch after falling to Tier 3 in 2016, from a list of nations that exploit children as child soldiers; however the TIP Report, cite child soldiers as an abundant trafficking issue in the nation. Both witnesses stood by the Secretary’s decision, claiming that Tillerson made a factual interpretation based on the TIP Report’s findings that Burma recently released 112 child soldiers from government employment.

The witnesses also addressed the potential redesign of the State Department, stating that the TIP Report and anti-trafficking efforts will remain intact with a continued level of priority and integrity.

Shared Hope International works directly with anti-trafficking efforts in India, Nepal, and Jamaica. A blog covering these country’s 2017 TIP Report rankings will be released soon.

By Justin Pollard – Policy Intern, Summer 2017    

 

 

 

 

 

June 6, 2017 by Guest

A Living Legacy

The story of one’s man impact on multiple generations

Burnett Family photo in 1957. (Their fifth child arrived in 1961)

Supper wasn’t a hurried affair when Malcolm Burnett was growing up in the small town of Camas, Washington. It was a family time—a time for the adults to talk and the children to listen and keep quiet. Suppertime conversations at the Burnett family table revolved around current affairs and the family’s history, and Malcolm was an avid listener.

Sitting around the table one evening in the 1930s, Malcolm’s paternal grandfather, Dr. Charles Flagg, shared a story that made a lasting impression on his junior-high-aged grandson. After serving in the Philippines as a US Army surgeon during the Spanish American War and the subsequent occupation, Dr. Flagg was sent back home to Fort Vancouver in Vancouver, WA. Owing to the servicemen’s patronage of the houses of prostitution in the area around Fort Vancouver, the job of examining, treating, and keeping medical records for prostituted women fell to the Army medical corps. Dr. Flagg treated many of the prostituted women during his time at Fort Vancouver, and observed troubling trends in their health.

Dr. Charles E.B. Flagg, US Army Surgeon and in charge of the medical facilities of Fort Vancouver

Malcolm, now his nineties, still remembers the shock he felt when Dr. Flagg said that the average life expectancy of the girls after they were prostituted was 7 years because of the diseases they would contract.

“Syphilis and gonorrhea were very common. In those days syphilis was treated with mercury, if my memory serves me right,” Malcolm mused sadly from the couch in his sitting room. “These things weren’t publicized in the papers, but the military knew what was going on.”

Dr. Flagg went on to tell the story of a middle class family whose daughter had disappeared. “Her brother went to a house of prostitution in Vancouver,” Malcolm recalled Dr. Flagg’s story, “I don’t know if he was going in search of his sister, or if he was a patron, but when the madam showed him to a room on the second floor, his sister opened the door! He and his sister tied the bedsheets together, escaped out the window, and made it safely back to their parents’ house.”

Dr. Flagg described prostitution as a “vicious heartless business,” and his stories made an indelible impression on Malcolm, who has held a firm, lifelong belief that “sexual exploitation through prostitution should not be winked at and kept hush-hush, but should be fought like any other crime.”

[easy-tweet tweet=”“Sexual exploitation through prostitution should not be winked at, but fought like any other crime.”” user=”SharedHope”]

“When you combine this history with the fact that I have four daughters, four granddaughters, and three great-granddaughters in my family, you can see why I support the work done by Linda Smith and Shared Hope International to eradicate this vicious, heartless business worldwide!” Malcom added, “Because I grew up with a strong feeling about people who make money on prostitution, we wanted to get behind her work.”

“When I worked for Boeing, I knew men who patronized prostitutes. It’s sickening how our culture accepts it.”

Malcom and “his boss” Zoe, a rescued Bull Terrier who keeps him active.

Malcom  determined at a young age to make a difference and to save girls from that life. He stays involved today by sharing the message of awareness with his family, friends, and church community. He continues to support Shared Hope in any way he can. He is particularly grieved by the way our society views prostitution as normal.

A few years ago, Malcom and Linda met over lunch to discuss several bills then being considered by Washington State to strengthen laws to prosecute those who buy and sell children. He leaned across the table and said passionately, “I may be 92, but I’m not dead yet!  What do you need me to do?”

Malcolm joined the forces of letter writing activists to convince state lawmakers it was the right thing to do, saying, “If everyone did something, we could get it done!” As a result of those efforts, Washington state is one of 7 states who currently hold an A grade in Shared Hope’s Protected Innocence Challenge.

Malcolm Burnett life is a powerful example of individual responsibility, active citizenship, and compassion. In passing these values on to his children, grandchildren, and great-grandchildren–and in the difference he has made through his contributions in the lives of those served through Linda Smith and Shared Hope’s work–Malcolm has created a living legacy.

Note: Nick Lembo is the original interviewer and author of this piece. It was modified by Jennifer Lindsay for use on the Shared Hope Blog.

May 30, 2017 by Guest

The Ripple Effect

Chifonne, one of our Ambassadors of Hope shares her story! 

When I first heard about sex trafficking, I was probably 12 years old. It was the very early days of Shared Hope, not long after Linda Smith had been to India, and she shared at a local event where my mom heard what Linda saw and experienced, and how she was working to help. My mom was incredibly moved by what she learned, and in turn, told a number of other people about it. I was, of course, one of those people. I was shocked and horrified that girls could be SOLD as if they were property.

Chifonne & Lindsay

I remember going to my best friend Lindsay’s house and telling her about it. She was also outraged, and we decided we had to do something to help these girls. We convinced our children’s pastor to let us make a presentation to our children’s church, as long as we promised not to use words like “sex”. I remember the two of us standing in front of all our friends that Sunday morning and telling them about kids our age or younger who were slaves, and how we could help free them. We took an offering that morning and raised $34, which we sent to Shared Hope.

This happened 17 years ago, but it was the start of something significant for both Lindsay and me.  I’ve been an Ambassador for several years, and have also been part of other local teams and groups working to end Domestic Minor Sex Trafficking. My friend Lindsay went on to co-produce a documentary about sex trafficking in the US, Sex + Money: A National Search For Human Worth to which Linda Smith was a contributor, and which screened at college campuses across the nation. Both Lindsay and I have continued at times doing work abroad with girls and children at-risk.

[easy-tweet tweet=”You never know how people’s hearts are being stirred by your words.” user=”SharedHope”]

I say all of this not to toot our proverbial horns in any way, but as a reminder for all of us who work to raise awareness. You never know how people’s hearts are being stirred by your words, or what they may do in response to being informed. If you recall, neither my friend nor I had been at an actual “presentation.” Someone who had been – my mom – shared with me, and I shared with a friend, who in turn shared with a lot more friends. That ripple effect is happening ALL THE TIME. What you do has impact that reaches far wider than you may realize.

[easy-tweet tweet=”What you do has impact that reaches far wider than you may realize. ” user=”SharedHope”]

Chifonne, Washington State Ambassador

We need your help to take action and offer prevention education in your community! Become an Ambassador of Hope today! 

[easy-tweet tweet=”Shared Hope needs your help, become an Ambassador of Hope today! ” user=”SharedHope”]

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