UPDATE: In October 2016, the D.C. District Court held that Backpage.com cannot preemptively challenge the constitutionality of the SAVE Act under the First Amendment. Because the company asserted that its intention is not to host ads for illegal sex trafficking, but rather ads for legal adult services, Backpage does not have standing to challenge a law that only aims to combat illegal activity. To have standing, Backpage would have had to argue that the SAVE Act criminalizes speech protected by the First Amendment. However, the court’s decision contained a silver lining: confirmation that the SAVE Act limits the intent requirement to a knowledge standard (i.e., knowledge that the person advertised is being trafficked for sex) and not the lower reckless disregard standard.
UPDATE: The Senate version of the SAVE Act became law in May 2015. It was added as an amendment (Section 118) to the Justice for Victims of Trafficking Act of 2015 (S. 178), which became Public Law No. 114-22. The new law amends the federal sex trafficking statute, 18 U.S.C. § 1591, to make advertising a crime. However, unlike the House bill, the law purports to remove the reckless disregard standard and thereby limit the intent requirement to a knowledge standard (i.e., knowledge that the person advertised is being trafficked for sex).
For the second year in a row, the House of Representatives has passed the Stop Advertising Victims of Exploitation Act (SAVE Act, HR 285), a bill aimed at curbing the serious problem of sex trafficking online. The bill, however, is the same as it was last year—and it’s similarly problematic. EFF and a coalition of free speech and privacy groups released a letter today condemning overly broad bills like this.
The SAVE Act would create new federal criminal liability for Internet intermediaries who publish or host third-party advertising content that relates to commercial sexual exploitation.
Websites are generally shielded from legal liability for user-generated content thanks to Section 230 of the Communications Decency Act (CDA 230). This provision is the reason online intermediaries—from Yelp to Craigslist to Wikipedia to bloggers with comments sections—can exist, hosting and curating creative content without fear of being held responsible for the material itself.
There are two exceptions to CDA 230’s protections: federal criminal law and federal intellectual property law. The SAVE Act would strip Internet platforms of existing legal protection by fitting within Section 230’s federal criminal law exception. The bill’s use of the word “advertises” could broadly apply to not only those who place an advertisement, but also websites that display such ads. In other words, the bill would make it a felony to publish or host third-party advertising content with the knowledge—or with the reckless disregard of the likelihood—that the ad relates to sex trafficking.
By criminalizing the publication or hosting of advertising content in this way, the SAVE Act would incentivize online newspapers, social networks, and many other websites—most of which rely heavily on third-party ads for monetary support but cannot choose which ones show up on their pages—to engage in self-censorship. As we’ve seen too many times in the copyright context, websites often choose to take down content as soon as it’s flagged as potentially problematic—even if it’s protected speech—because the cost of review and the risk of litigation is too high. In the case of the SAVE Act, the risk of criminal prosecution for contributing to felony sex trafficking would be too onerous—a minimum of 10-15 years in prison—for many online platforms.
States have attempted to chip away at CDA 230 by passing anti-trafficking statutes with advertising liability, but courts time and again have ruled such efforts are flawed—not only on preemption grounds, but also because such laws violate the First Amendment.
Any attempt to address a social problem by creating broad criminal liability must be carefully crafted to avoid chilling constitutionally protected speech. The SAVE Act, despite its noble intent, does not achieve this.
The bill has passed the House of Representatives—we now call on the Senate to reject this misguided proposal.