Justice Programs Archives - Page 3 of 20 - Shared Hope International

October 19, 2017 by Guest

The Smoke Screen That’s Obscuring the Voices of Survivors – Why We Must Amend the CDA

By: Alisa Bernard, Survivor Advocacy Coordinator, The Organization for Prostitution Survivors

I am of the technology generation. I was born the same year the cell phone was invented and Macintosh Apple made its debut. I never knew a time when a computer was not an accessible tool. We live in a time where computers the size of a credit cards can stream a giraffe giving birth across the country and can teach us how to do anything from play the violin to fix a leaky drain. The possibilities are limitless. But what happens when those possibilities are twisted into something darker? What happens when we use our innovations to trade in the flesh of young girls?

[easy-tweet tweet=”What happens when we use our innovations to trade in the flesh of young girls? – Alisa Bernard” user=”SharedHope”]

The online sex trade is not new. When I was prostituted over a decade ago, I was sold online. Online prostitution is not glamorous and it is not safer than street prostitution. The violence endemic to prostitution is not somehow mitigated by the internet. One study stated that violence is perpetrated predominantly by buyers regardless of venue of solicitation. The internet has normalized the buying of sex down to a negligible transaction. Women and girls are being reduced to mail order masturbation aids.

[easy-tweet tweet=”Online prostitution is not glamorous and it is not safer than street prostitution. – Alisa Bernard” user=”SharedHope”]

[easy-tweet tweet=”The violence endemic to prostitution is not somehow mitigated by the internet. – Alisa Bernard” user=”SharedHope”]

The Senate’s proposed reforms to section 230 of the Communications Decency Act would allow for the prosecution of criminal activity on the part of internet service providers for facilitating the online sex trade. Essentially, businesses like Backpage.com could be held accountable for their contributions to the online sex trade. This is an essential step forward in the fight against trafficking in the US. Opposition activists express concern that the sex trade marketplace would make trafficking somehow more hidden or move underground if the online market is eliminated through this act. In reality, a result of the now internet facilitated sex trade is the intentional disappearing of both victims and traffickers. Backpage.com’s business model assists traffickers in obfuscating information in their ads, keeping them hidden behind bitcoins. Photos of children for sale across Backpage.com and similar sites have had their meta-data scrubbed away. Identification of victims and perpetrators has become practically impossible. How much more hidden could the market be?

According to the National Center for Missing and Exploited Children most cases of trafficking occur online and the majority of those are happening through Backpage.com. At first, I thought Backpage.com was simply ignoring the experiences of women and girls like me by populating their site with these ads. Backpage.com isn’t ignorant that we are being bought and sold on their website, they want us to be bought and sold on their website. Every ad costs a price and with hundreds of ads posted daily they won’t say no to such a profit margin. Never mind if most of the product is young girls and women so long as the profits keep rolling in. And why not if they can hide behind a bastardization of free speech laws.

The thousands of women and girls whose faces have glared across a Backpage.com moderator/editor’s screens are not products. Editing an ad for a child doesn’t change the facts. She’s 14 with a pimp, or 23 and her pimp’s name is poverty, editing doesn’t make that 14-year-old 18, and it doesn’t change the 23-year-old’s circumstances. It does, however, add another few dollars into the Backpage.com bank account. So yeah, I care that there are more stringent requirements to post a car for sale than there are to post a young girls body.

Do the rapes of innocent women and girls mean so little? Have we accidently put the freedom to facilitate the rape of girls above girl’s freedom to be safe from rape? Reform is needed. The changes proposed to the CDA do not allow for the mass hysteria the tech industry would have you believe. The changes in the language do not allow for overzealous trial attorneys to go suing innocent internet service providers. If they are doing nothing wrong, they have nothing to fear. If they are using the CDA as a cover to hide their own perpetuation of the sex trade then, yes… they should have much to fear.

[easy-tweet tweet=”If (tech companies) are doing nothing wrong, they have nothing to fear (from amending the CDA). ” user=”SharedHope”]

I am firmly for the protection of the First Amendment and believe that it is one of the most integral core tenets of any free society. However, using the CDA as a smoke screen to conceal trafficking is just as much an attack on free speech as stripping the First Amendment bare. The modern era is rife with technological advancement, and we must update our laws to reflect this ever changing landscape.

I stand in solidarity with those who work to reform section 230 of the CDA, and I beg you, from someone who has seen what the online sex trade really looks like, to mobilize around this issue. Get your voice out, get your opinion out, because our voices cannot be the only ones to stand up.

[easy-tweet tweet=”Get your voice out, get your opinion out, because our voices cannot be the only ones to stand up.”]

September 16, 2017 by Guest

Law Professors Weigh in on Amending the CDA – Part 3

Q: How did we get here? Could the Communications Decency Act have been drafted differently to avoid this problem?

It is very important to understand the history of the CDA and that puts in context the SESTA proposal as a mere clarification of what the CDA was meant to do in 1996 when drafted, and how it should be clarified in light of technologies and crimes that have emerged since 1996. At the time of the CDA the internet was barely beginning, the crime of human trafficking was not recognized in the law, and the extreme growth of sexual exploitation of children online had yet to be realized.

The CDA was enacted in 1996 when the Internet was in its infancy. It was drafted in response to at least one case, Oakmont v. Prodigy.[1] In that case, Prodigy used its software to filter profanity on its platforms, including a bulletin board. However, a security firm sued Prodigy when users put negative comments on Prodigy’s bulletin board about that firm. In a twist of fate, Prodigy lost the lawsuit in part because it had taken efforts to screen out material, but had been incomplete in doing so.

This case influenced Congress to act, as this decision seemed to punish a Good Samaritan who was trying to self-regulate. That is why the legislation is called the Communications Decency Act. Its purpose was to protect people from sexually explicit material online and encourage companies to “take steps to screen indecent and offensive material for their customers.”[2] It was not encouraging companies to engage in criminal activity, but quite the opposite. Therefore, the purpose of the CDA was to encourage a robust Internet while protecting service providers for their actions to restrict access to explicit content. It did so by declaring that service providers should not be treated like publishers for content on their platforms provided by third parties. §230(c)(1). It also provided broad protection for Good Samaritans who restrict access to sexually explicit material. §230(c)(2).

However, since 1996 this law has been interpreted far more broadly than intended or than the words of the statute suggest. Courts have tried to navigate the meaning of the CDA today. But the world today is very different from 1996. First, the Internet is no longer in its infancy. It has grown and is robust and thriving. However, crime and exploitation are also thriving on the Internet in ways unforeseen in 1996. Secondly, the drafters of the CDA could not have anticipated the role of the Internet in human trafficking which was not even recognized as a crime until 2000. Some courts, at the urging of Backpage.com and other tech companies and their representatives, have advocated that the CDA provide blanket immunity for their actions because they are internet companies. They argue that the CDA affords service providers immunity because Congress wanted a robust Internet. Some courts have read the law to offer such a broad protection effectively isolating service providers from liability simply because they are service providers. This is notwithstanding the fact that were these same actions committed by brick and mortar businesses, no immunity would be considered at all. This has prevented states from pursuing criminal charges or victims from suing service providers civilly.

Moreover, the law now recognizes a new series of crimes: human trafficking. The Trafficking Victims Protection Act was not passed until 2000. As a result, there is no guidance in the CDA on how to manage the CDA with the TVPA. So courts have tried to reconcile the immunity provision for Good Samaritans of the CDA with the intent of Congress to hold traffickers and those who enter into a joint enterprise with human traffickers liable in the TVPA. Some courts have struggled with this issue and resolved the conflict in favor of immunity for online entities. Many of these courts have expressed concern that they could not allow trafficking victims’ claims to proceed and asked Congress for clarification.[3] For example, a California Court explicitly stated, “until Congress sees fit to amend the immunity law, the borad reach of section 230 of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking.”[4]

Therefore, it makes perfect sense for Congress to clarify this tension. The Senate bill does so in some very simple ways within the four page bill. First, it adds a line to the “Findings” section of the CDA making the non-controversial clarification that “§230 was never intended to provide legal protection to websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” Second, it adds to the “Policy” section of the CDA the similarly non-controversial statement that one of the policies of the United States is “to ensure vigorous enforcement of criminal and civil law relating to sex trafficking.” Again, this is not a controversial statement. Third, it leaves the Good Samaritan protections in place. Finally, it includes state sex trafficking and the enforcement of state sex trafficking laws as laws unaffected by the CDA, as well as clarifies what it means to participate in a human trafficking venture. These steps are narrow but critical to clarifying confusion experienced by courts trying to reconcile the express intent of Congress in the outdated CDA and current TVPA.

Read Part 1 and Part 2 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.

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[1] 1995 WL 323710 (NY Sup. Ct. 1995).

[2] 141 Cong. Rec. H8470

[3] E.g., Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 29 (1^st Cir. 2016); California v. Carl Ferrer, Michael Lacey, and James Larkin, No. 16FEO24013, Ca. Super. Ct. (August 23, 2017).

[4] Ferrer, No. 16FEO24013 at 18.

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.

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[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.

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[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

August 1, 2017 by Christine Raino

Letter of Support for the Stop Enabling Sex Traffickers Act of 2017

Dear Senator Portman and Senator Blumenthal,

A couple of decades ago sex traffickers and buyers conducted their illegal transactions in dark alleys and back streets. Today these criminal transactions have moved online. Although the location has changed, the crime remains the same and so must our response to those who facilitate and enable it.

In recognition of the tragic nature of online facilitation of sex trafficking, we thank you—and the broad, bi-partisan group of co-sponsors committed to protecting those who are bartered and sold for sex online—for introducing the Stop Enabling Sex Traffickers Act of 2017. The undersigned organizations believe this legislation is necessary to close a legal loophole in the Communications Decency Act (CDA) that allows websites to escape liability for knowingly facilitating sex trafficking.

The CDA was enacted in 1996 to govern the nascent internet industry while promoting an open forum for commerce online. Section 230 of the CDA established immunity for “interactive computer service providers” (ICSPs) from civil and state criminal liability for third-party content in order to promote self-regulation by these online entities. However, over the past twenty years Section 230 has been broadly misinterpreted by federal courts as extending blanket immunity to websites that host ads where trafficked individuals are bought and sold.

Websites that profit from creating marketplaces for the sale and purchase of trafficking victims enjoy a lucrative business model—one with high profits and low risk. When states and victims have tried to hold these companies accountable in the courts, the CDA has blocked their efforts. In 2014, child sex trafficking victims asserted civil claims under the Trafficking Victims Protection Act (TVPA) against Backpage.com—the most extensive online marketplace for sex trafficking victims and the platform where the young plaintiffs had been advertised for sex—but their claims were denied based on CDA immunity. At the same time, the Senate Permanent Subcommittee on Investigations was engaged in a two-year inquiry into Backpage’s business practices, culminating in a report on January 19, 2017 detailing how Backpage had knowingly facilitated child sex trafficking. Backpage has also avoided state criminal liability by attacking state laws in court and barring them from taking effect, also based on CDA immunity. Meanwhile, Backpage.com’s profits continued to rise from $71 million in 2012 to over $120 million in 2015. 1

This is wholly inconsistent with the purpose and protections intended when the CDA was enacted in 1996. As the Communications Decency Act began to make its way through the Senate, Senator Exon stated upon introduction of the bill on February 1, 1995 that the purpose of the bill was indeed to protect children:

Mr. President, the information superhighway should not become a red light district. This legislation will keep that from happening and extend the standards of decency which have protected telephone users to new telecommunications devices. Once passed, our children and families will be better protected from those who would electronically cruise the digital world to engage children in inappropriate communications and introductions. 2

The Stop Enabling Sex Traffickers Act of 2017 clarifies that Section 230 was never meant to automatically shield websites that engage in the crime of human trafficking from a civil lawsuit or state criminal penalties. This bill targets the business model of companies like Backpage.com, by opening the door to civil liability and allowing states to enforce their trafficking laws when online entities choose to profit from the exploitation of sex trafficking victims.

Enacting this legislation is critical to restoring the promise of justice for victims and holding offending websites culpable for their crimes. As sex trafficking explodes on the internet, accountability for online entities that facilitate this exploitation is an essential tool in the international fight against sex trafficking. We, the undersigned organizations, support this critical legislation and urge Congress to restore the human rights protections of the Trafficking Victims Protection Act that have been eclipsed by this misinterpreted immunity for entities that value profits over the protection of vulnerable people.

Sincerely,

Shared Hope International

PROTECT

Rights4Girls

National Children’s Alliance

Exodus Cry

50 Eggs Films

Coalition Against Trafficking in Women (CATW)