Human Rights Groups Ask Senate To Reject Proposed Sex Trafficking Law That Strips Long-Held Protections For Website Owners

Legal Issues

from the government-would-rather-create-new-crimes-than-stamp-out-the-old-ones dept

Tue, Nov 18th 2014 10:31am — Tim Cushing

Various members of the US government are hoping to repeat the dubious success of shutting down Craiglist's adult ads by targeting Backpages.com. This has gone on for a few years at this point, with states' attorneys general and various legislators laying the blame for sex trafficking at the feet of the online classified ad service.

Rather than realize the service could be an ally in the fight against these criminals, law enforcement agencies -- along with like-minded government officials -- have spent a lot of time and money pursuing a total shutdown of the service.

Now, the Senate is considering the "SAVE Act" (Stop Advertising Victims of Exploitation Act)[pdf link], which was passed out of the House by a 392-19 vote earlier this year. The bill expands the definition of "trafficking" to include "advertising," amending the definition of this federal crime.

Worse, it strips away protections website owners who host third-party content have enjoyed for years. The summary provided by Congress.gov highlights proposed changes that will do damage to many more entities than its intended targets.

Shields from liability under such prohibition an Internet access service provider, browser provider, common carrier, telecommunications carrier, or other generic search or utility provider solely based on providing generic search or utility services.

Notably, website owners are excluded from these liability protections, basically eliminating Section 230 immunity for anything the government considers to be an "adult advertisement."

Requires anyone selling, commercially promoting, or placing an adult advertisement to: (1) verify the identity of each person purchasing advertisement space for, and each person depicted in, such advertisement; (2) verify that each person whose goods or services are advertised is not under age 18; (3) create and maintain individually identifiable records pertaining to each such person for at least seven years; and (4) affix to each adult advertisement a statement describing where such records may be located.

Not only will website owners now be held accountable for third-party content, they'll also be expected to police it to ensure nothing runs afoul of this broadly-worded law. Failure to do so could result in a five-year prison sentence.

The very obvious and extensive collateral damage of this legislation is pointed out in a letter to senators authored by a number of human rights organizations and trade associations. [pdf link]

We of course share the vital goal of ending human trafficking, of all kinds. Trafficking is an egregious crime. Congress should provide additional funding for desperately needed victims services, counseling, and community outreach as well as prosecutions under the strong federal law that already criminalizes the conduct of those who knowingly advertise such activity online.

However, the unfortunate fact is that this bill is overbroad, counterproductive, and would place unconstitutional burdens on the free speech and privacy rights of millions of Americans who have nothing to do with trafficking. S.2536 creates new and draconian federal criminal liability for websites and other online services that host content created by third parties, including both online and print publications, many of which are small businesses. Furthermore, not only does this raise serious free speech and privacy concerns, it will drive the truly bad actors – the traffickers – underground and overseas, while subjecting wholly innocent individuals to potential criminal liability for unknowingly running afoul of this sweeping law.

The letter also points out how the addition of new recordkeeping requirements will only serve to turn more law-abiding citizens into criminals -- and easy targets for cops and prosecutors who love easy "wins."

S.2536 does not require that the website operator, online service, or publication know or intend to host “adult advertising” content before imposing liability. If one of a site’s millions (or billions) of users were to upload a post or an image that fell under the bill’s broad definition and that site operator had not already collected a copy of the user’s driver’s license, the site operator would face a mandatory minimum penalty of $250,000 and up to 5 years in prison. The effects would be felt the hardest by smaller businesses, both online and print, for whom one single violation triggering the mandatory minimum penalty could very well mean bankruptcy, and would serve as a disincentive to new start-ups.

Thus, S.2536 would create obvious privacy concerns, as any reasonable operator would feel immense pressure to collect the government-issued photo ID of each of their users to guard against the potential that one of them might one day post lawful content covered by the bill.

The end result of this legislation won't be less trafficking, but rather, more criminals. Law enforcement resources will be diverted to investigate and prosecute site owners and third-party contributors, neither of which may be aware of the new regulations, much less what the government will decide is covered by the term "adult advertising" on any particular day, in any particular jurisdiction. Rather than contribute to the elimination of trafficking, this legislation will simply dump more people in prison and run more small companies out of business.

Will the Senate listen? Considering that opposing this bill puts you on the side of sex traffickers and child exploitation, the odds of this bill being rejected are very low. Hopefully, some sanity will be amended into the proposed bill before it goes up for a vote. But the previous margin of victory (392-19) suggests this will sail right through the Senate as well, possibly before anyone notices the numerous problems inherent in the legislation.

BILLS 113s2536is (PDF)BILLS 113s2536is (Text)

Coalition Letter Opposing Senate SAVE Act (PDF)Coalition Letter Opposing Senate SAVE Act (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: advertisers, liability, save act, secondary liability, section 230, trafficking

32 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 18 Nov 2014 @ 10:43am

I just don't see this bill/law surviving a court challenge on its constitutionality not to mention the fact that it flies in the face of the CDA. If the bill passes into law, I expect we'll see multiple lawsuits filed against the law because it violates the constitutional rights of website owners and operators not to mention the fact that it conflicts with the Communications and Decency Act.
[ link to this | view in thread ]
Richard Eckert, 18 Nov 2014 @ 10:49am

@Anonymous Coward - I agree with what you say, but do wish there was a way to limit/stop the trafficking
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 10:50am

The law will function as intended
The end result of this legislation won't be less trafficking, but rather, more criminals.

This is the point of the law. The more people can be criminalized, the more people can be controlled.
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 10:50am

This logic applicability doesn't make sense
Failure to do so could result in a five-year prison sentence.
Here's a problem I don't understand:

- This bill defines a "person" as an individual or entity, which may broadly include organizations, shareholders, etc., as punishable.
- This bill states that if a "person" (see above) is found guilty, they may be imprisoned.

So, theoretically, under this bill with how it is worded, an entire website company (e.g. Craigslist, which employs I think around 30 people) could be found criminally liable. Some clarifying text in the bill seems to potentially even expand this past Limited Liability protections.

Why is this acceptable for websites, but not things that permanently injure or kill people, such as big bank executive boards, or oil company CEOs, or anything else? Why is this okay for the goose, but not the gander?
[ link to this | view in thread ]
Anonymous Hero, 18 Nov 2014 @ 10:58am

Written by Sleazy Police maybe?
> Requires anyone selling, commercially promoting, or placing an adult advertisement to: (1) ...

(5) provide a backdoor to the iPhones of each person depicted in the content; (6) provide a password to the Facebook accounts of each person depicted in the content (topless preferred); (7) provide detailed interests/hobbies of each person depicted in the content (medically induced erections preferred).
[ link to this | view in thread ]
JoeCool (profile), 18 Nov 2014 @ 10:58am

Re: This logic applicability doesn't make sense
Because the gander has the money and connections. Duh.
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 10:59am

Re: The law will function as intended
That's what it has always been about.

Laws are not written to prevent or mitigate criminal activity. They are only written to give the government more power and authority for when they 'decide' they are ready to come for you.

This means for convenience sake, you have to make all things great and small criminal activity!
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 11:11am

The first sex slave ad will be posted in ...
I sincerely hope the first sex slave ad will be posted in the comment section of the personal websites of the Congressmen/women who vote for this bill.
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 11:30am

(1) Pass bill (2) Declare problem solved
Of course the two biggest effects of this will be (a) targeted prosecutions and (b) the move of all of this outside US jurisdiction. (Odd thing, that: the Internet is global.)

Actual real live sex traffickers are also smart enough, by the way, to use forged or stolen credentials -- of which there are plenty available. So sure, some of them will provide "their" ID, which I'm sure will come as a shock to retired librarian Mrs. D and her cat when a SWAT team kicks down their door in a pre-dawn raid to bust the sex slave ring that she's not running.

You don't stop people like that by passing inane, stupid legislation like this. You stop them by funding enough investigators to do the tedious, laborious work of taking them down, one at a time. There's no short-cut. There's no easy way. It's mind-numbing, detail-oriented, boring work but it's the only way.
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 11:38am

Our government will only be happy when everyone is a criminal, when they can just pick you up and put you in jail at the wim of for profit prisons. Its sicking..i dont know if they are just that stupid, or that corrupt, or both
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 11:44am

No one it seems ever learns you can not legislate morality. It's been tried over and over and it doesn't work even if it stands up to court decisions.

There's a reason why this is the oldest profession and it's been with us a long time. Making it illegal hasn't made it go away. It's just made to morph into a better hidden service.
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 11:53am

I see an opportunity
site operator had not already collected a copy of the user’s driver’s license
One of the common criticisms, whether or not valid, of voter photographic ID laws is that such laws disproportionately harm the poor, minorities, and the elderly, because those groups allegedly are less likely to have a government-approved photographic ID card. Since the proposed bill would effectively require site operators to collect a government-approved photographic ID card from their users prior to posting, it then follows that this bill excludes from online posting the same people who are harmed by voter photographic ID laws. Posting online is not a right in the same category as voting, but for some of these people, online communities may be the only communities they have. So won't someone please think of the poor, minorities, and the elderly and vote no on this bill, thereby protecting those groups?
[ link to this | view in thread ]
Rekrul, 18 Nov 2014 @ 11:58am

But the previous margin of victory (392-19) suggests this will sail right through the Senate as well, possibly before anyone notices the numerous problems inherent in the legislation.

It's not that they don't know that such a law would create huge problems for a lot of people, they simply don't care.
[ link to this | view in thread ]
The Anti-Zuck, 18 Nov 2014 @ 12:19pm

Finally, a way to kill Facebook
1. Create a couple dozen shell accounts on FB, then post ads copied from any number of local hookup purveyors.

2. Bonus points if the "Call Now" number belongs to an elected representative.

3. ???

4. Profit
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 12:53pm

Really, "SAVE"?
It's all about the acronym. Howzabout a Stop Hurting Internet Traffic Act or a Fight Unlawful Corporate Kleptocracy Act?
[ link to this | view in thread ]
Anonymous Coward, 18 Nov 2014 @ 1:03pm

Smells familiar...
This is 18USC2257 grafted onto a Frankenbill.
[ link to this | view in thread ]
Marak, 18 Nov 2014 @ 1:06pm

Umm.

Now no ones ever accused me of being a lawyer, but coyldnt this cover banner and side adds on streaming networks? If thats the case there are a lot of not-work-friendly sites that are in trouble o.0
[ link to this | view in thread ]
That One Guy (profile), 18 Nov 2014 @ 1:37pm

Re: This logic applicability doesn't make sense
Because the gander throws a lot of money into politics, the goose doesn't.
[ link to this | view in thread ]
DannyB (profile), 18 Nov 2014 @ 1:51pm

Who's side are you on?
> Considering that opposing this bill puts you on the
> side of sex traffickers and child exploitation . . .

This is the fundamental problem. We need to get past this idea that being against a bad solution means we are somehow in favor of keeping the problem that is was supposed to solve.

What? You're against a bill that tries to catch kidnappers by allowing the government to search any private home, anytime, anywhere, with no judicial oversight? You must be in favor of kidnappers!
[ link to this | view in thread ]
Avatar28 (profile), 18 Nov 2014 @ 2:06pm

Re:
I had the very same thought. Considering that those are the only ads that will run on a lot of questionable sites, a lot of those sites may find themselves in trouble soon too.
[ link to this | view in thread ]
toyotabedzrock (profile), 18 Nov 2014 @ 2:56pm

This would kill off large parts of xtube and youporn. They could never stay in business if they had to do all of that.
[ link to this | view in thread ]
toyotabedzrock (profile), 18 Nov 2014 @ 3:00pm

Re: Who's side are you on?
How dare you, you are not following the feminist approved thought process!

I'm not MRA but I really disagree with the vocal feminist sect that uses outrage like Fox news.
[ link to this | view in thread ]
toyotabedzrock (profile), 18 Nov 2014 @ 3:02pm

Re:
I think most people think that would be good. But most people are to sexually repressed to pass actual solutions.
[ link to this | view in thread ]
toyotabedzrock (profile), 18 Nov 2014 @ 3:14pm

Re: I see an opportunity
If you don't live in an area where you need a car or cannot afford one people tend to forgo getting ID. Also if you are impoverished you are often forced to move and with that you end up losing your possessions like paper birth certificates and SSN cards.
I have a middle class family and they lost it on me.
To get your birth certificate back, especially in large states means a trip to the capital of the city you where born in with some other identification needed.
There is also a segment of the population that was not born in a hospital and never had birth certificates or they have no living relatives who can help prove their identity.
[ link to this | view in thread ]
orbitalinsertion (profile), 18 Nov 2014 @ 4:25pm

Re: Re: Who's side are you on?
The fuck are you talking about? Or are you just randomly injecting some weird straw-feminism so you can comment on feminism? (Clue bus: Most feminists wouldn't support this law for at least 2 reasons. Since you mention them.)
[ link to this | view in thread ]
Andrew D. Todd, 18 Nov 2014 @ 7:58pm

It Will Be Bypassed
This is easily bypassed by offshoring, of course. Someone sets up in a foreign country. puts up a website, with a downloadable mail order form and an acrobat file for the envelope, complete with a fictitious return address, and instructions about how much postage to use. Each form has a unique user ID printed on it, together with a detachable stub containing the User ID and a Password. The customer puts a twenty dollar bill in the envelope, with the form, treating it as an acceptable risk, and mails it off. The offshore businessman honors the credit, most of the time, wanting to gain a reputation for fair trading. At rates reflecting offshore service and trivial quantities of data, twenty dollars is a lot of money. The businessman chooses to locate in a country where there are enough tolerated brothels to make mere advertisements for services provided outside the national territory a non-issue.

Many third world countries have to decide whether to let tourists bang little boys or not. On that scale, advertisements for sex in New York are a trivial issue.
[ link to this | view in thread ]
Anonymous Coward, 19 Nov 2014 @ 4:38am

This could be another way to get some kind of SOPA passed. If this goes through, it would cause problems for "crack" sites that distribute tools for getting around DRM and the like. Most of them carry advertisements for adult service and porn sites.

Enforcement is another another issue. Astalavista,for example, one of the biggest "crack" sites, is located in the Slovak Republic, so they are not subject to American law since their services are located in the Slovak Republic.

To the Feds I say good luck trying to enforce this in the Slovak Republic.
[ link to this | view in thread ]
Case, 19 Nov 2014 @ 5:42am

Same old Story...
The moral panic around vast sex slave rings gets stoked to target legitimate sex workers, and in the process everybody else's civil liberties also get thrown under the truck. Do you really think Feinstein (who co-sponsors the bill) considers that an unwanted side effect?

And yes, large-scale human trafficking does exist -- its victims are the scores of undocumented and unprotected workers congress at best wants to do nothing about. But the idea of trafficking in sex slaves, especially underage ones, being a widespread occurrence is not backed by any evidence (though as usual, the defenders will tell you that the lack of evidence shows just how much power THEY have...)
[ link to this | view in thread ]
DOlz (profile), 19 Nov 2014 @ 5:53am

Makes sense
"Rather than realize the service could be an ally in the fight against these criminals, law enforcement agencies -- along with like-minded government officials -- have spent a lot of time and money pursuing a total shutdown of the service. “

It’s a lot less work to sweep a problem under the rug rather than fix it.
[ link to this | view in thread ]
Anonymous Coward, 19 Nov 2014 @ 9:51am

I see this being abused by the NSA, DHS, etc.

"Don't want to hand over all your customer data, huh? Sure would be a shame if someone (definitely not us, we're too ethical for that) posted an escort ad that left you on the hook for a few years in prison, don't you think?"
[ link to this | view in thread ]
John85851 (profile), 19 Nov 2014 @ 10:05am

Out of sight, out of mind
1) Make it illegal for sites to display ads for illegal services.
2) Ads for illegal services stop.
3) Therefore, since no one can see any illegal ads, the illegal activies have stopped.
4) Job done, go home.
[ link to this | view in thread ]
Anonymous Coward, 19 Nov 2014 @ 11:28am

At least they are not going as far as the Attornies general wanted, and keeps liability protections for ISPs, Wifi, and VPN/Proxy providers.

And they were very wise doing that. Requiring sites to be blocked would have just caused people to used offshore VPN or proxy services beyond the reach of U.S. laws.

That is why SOPA would have never worked. There are a lot of "under the radar" VPN services, like mine, mostly on the VPNGate.net, using SoftEther, that would have been beyond the reach of U.S. laws.

What I do is turn on the VPNGate.net listing for a while, let people get the latest configuration files, and the pull the plug. I have the software configured to where it will function, when I am not listed, as long as they don't download any new openVPN configuration files, meaning I stay off most IP blocking lists

People, outside the U.S., doing that, are NOT SUBEJCT to U.S. laws, so a teenager, say, in Russia, running a VPN servers in his bedroom is NOT SUBJECT to prosecution in the United States, should someone in the U.S. happen to use his under-the-radar VPN. If they had gone as far as a number of various Attornies General wanted, everyone and his brother would have been using offshore VPNs to bypass site blocking.

And such under-the-radar VPNs are undetectable. Even though Iran has outlawed VPNs, I still see a lot of connections from users in Iran to bypass the national firewall. Since MY servers are in the United States, they are ONLY subject to UNITED STATES laws, and are NOT SUBJECT to Iranian laws. In other words, I am NOT SUBJECT to prosecution in Iran, even though Iranian citizens are logging on to my under-the -radar VPN.
[ link to this | view in thread ]