EFF opposes the Senate’s Stop Enabling Sex Traffickers Act (S. 1693) (“SESTA”), and its House counterpart the Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865). Not only would both bills eviscerate the immunity from liability for user-generated content that Internet intermediaries have under Section 230, the bills would also amend the federal criminal sex trafficking statute to sweep in companies who may not even be aware of what their users are doing.
As we recently explained, Section 230 has always had an express exemption for federal criminal law, meaning that Internet intermediaries can be prosecuted in federal court. Thus, federal prosecutors have always been able use the federal criminal sex trafficking statute (18 U.S.C. § 1591) to go after online platforms without running into Section 230 immunity.
SESTA and its House counterpart would amend Section 1591 to expand federal criminal liability for Internet intermediaries—increasing the ways they may be on the hook for what are essentially the crimes of their users. These changes are not only unnecessary in light of current law, such an expansion of intermediary liability would undermine the online free speech and innovation that all Internet users have come to expect and enjoy.
Congress Already Gave Federal Prosecutors the Ability to Target Culpable Online Platforms
With the SAVE Act of 2015, Congress amended Section 1591 to make “advertising” sex trafficking a crime. Congress intended to target both the pimps who post sex trafficking ads and the online platforms who host such ads, in particular, classified ad websites like Backpage.com.
We have not yet seen a prosecution under the SAVE Act, but it has been reported that prosecutors have empaneled a federal grand jury in Arizona to investigate Backpage.com. Now Congress wants to further expand federal criminal liability under Section 1591 in dangerous ways—without proof that such an expansion is necessary.
Currently, given the 2015 amendments, Section 1591 can be read as prohibiting two main crimes:
- First, it is a crime for a person or entity to “advertise” sex trafficking or to benefit financially from “participation in a venture” that has engaged in advertising sex trafficking, knowing that an ad reflects a sex trafficking situation. Added by the SAVE Act, this crime was intended to apply only to the culpable hosts of online sex trafficking ads—those individuals or companies who, in fact, know that the ads are for sex trafficking.
- Second, it is a crime for a person or entity to engage in certain activities (other than advertising) related to sex trafficking or to benefit financially from “participation in a venture” that has engaged in certain activities related to sex trafficking. The statute lists the activities for which criminal liability attaches (specifically, if a person: recruits, entices, harbors, transports, provides, obtains, maintains, patronizes, or solicits). For this second set of crimes, the statute permits a lower standard for the defendant’s state of mind: a person or entity who engages in these activities or benefits financially from “participation in a venture” that engages in these activities, knowing or in reckless disregard of the fact that sex trafficking is involved. Thus, individuals or companies need not, in fact, know that a “venture” involves sex trafficking. Rather, if they were aware of a risk of sex trafficking and were "reckless" in dismissing that risk, they would be criminally liable.
Congress assigned the higher “knowledge” standard to advertising sex trafficking in the SAVE Act in light of civil libertarians’ concerns that attaching criminal liability to advertising implicates First Amendment rights.
SESTA Would Dangerously Expand Federal Criminal Liability to Encompass Innocent Online Platforms
The Senate bill would amend Section 1591 by further defining “participation in a venture” to include any activity that “assists, supports, or facilitates” sex trafficking.
Therefore, the Senate bill creates a third crime under Section 1591(a)(2):
- It is a crime for a person or entity to benefit financially from “participation in a venture” that has assisted, supported, or facilitated sex trafficking, knowing or in reckless disregard of the fact that sex trafficking is involved.
There are two problems with this amendment to Section 1591(a)(2). (The House bill has similar amendments.)
First, the words “assists, supports, or facilitates” are extremely vague and broad. Courts have interpreted “facilitate” in the criminal context simply to mean “to make easier or less difficult,” as in using a phone to help “facilitate” a drug deal. A huge swath of innocuous intermediary products and services would fall within these newly prohibited activities, given that online platforms by their very nature make communicating and publishing “easier or less difficult.”
Second, persons or entities would be criminally liable under the bill’s vague and broad terms even if they do not actually know that sex trafficking is happening—much less intend to assist in sex trafficking. This would expose innocent individuals and companies to federal criminal liability should their products or services be misused by sex traffickers.
This reasonable reading of SESTA carries dangerous implications for all Internet intermediaries, not just classified ad websites like Backpage.com, as well as brick-and-mortar companies.
Any company in the chain of online content distribution—whether ISPs, web hosting companies, websites, search engines, email and text messaging providers, or social media platforms would be swept up by these amendments to Section 1591. All of these companies come into contact with user-generated content—whether ads, emails, text messages, or social media posts—some of which might involve sex trafficking. And all of these services can be said to “assist, support, or facilitate” sex trafficking. For example, should a messaging app be used by the perpetrators of sex trafficking to communicate with each other, a federal prosecutor could argue that such a service assisted, supported, or facilitated sex trafficking. Thus, all of these companies would be criminally liable under Section 1591 if a jury concludes—not that the companies actually knew their services were “facilitating” sex trafficking—but that they were “reckless” in dismissing a risk of sex trafficking that they were aware of in a particular case.
Additionally, the new federal criminal liability in Section 1591 created by SESTA would not be limited to online platforms, given that Section 1591 currently is not limited to online platforms but instead applies to “whoever” participates in a venture. Thus, on the face of the bill, any individual or company that “assists, supports, or facilitates” sex trafficking, in reckless disregard of the fact that sex trafficking is happening, is open to federal criminal liability. While perhaps not Congress’ intent, this language could swallow up an endless list of companies who may not, in fact, be aware of what their customers are doing. For example, if a sex trafficker used a legitimate package delivery service or bank in the course of his illicit dealings, would those entities have “facilitated” sex trafficking?
In summary, just because Internet intermediaries cannot invoke Section 230 immunity when faced with liability under federal criminal law, it does not follow that the federal criminal sex trafficking statute should be further amended—beyond what the SAVE Act did—to sweep in what may be innocent Internet intermediaries and hold them responsible for the sex trafficking crimes of their users.
Section 1591—as amended two years ago—gives the U.S. Department of Justice more than enough leeway to prosecute culpable online platforms for their role in sex trafficking.