With the blessing of major internet firms, congressional legislation aimed at curbing online pimping and human trafficking, particularly of children, could be headed for a vote soon in the U.S. Senate.
Or not, unfortunately.
Sen. Ron Wyden, D-Ore., is blocking a vote on the bill, contending it could harm tech startups, and the influential Electronic Frontier Foundation condemned the measure as limiting the right to free speech, particularly of smaller companies.
But when online sites traffic in prostitution, including with minors, that is not protected by the First Amendment. If the Stop Enabling Sex Traffickers Act, S. 1693, must be fixed, senators should do so. But they should act. The problem isn’t going away.
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In May, Stockton police arrested more than 20 people in a human trafficking scheme that involved eight girls between the ages of 14 and 17, apparently involving Backpage.com. Earlier, a Chicago man was arrested after using Backpage to shop a 16-year-old girl who was murdered. Deputy California Attorney General Maggie Krell has said most trafficking cases now involve websites.
As the law now stands, federal prosecutors could bring charges against online companies that profit from sexual exploitation, but rarely do. The proposal would make clear that state and local prosecutors could bring criminal charges, so long as they can prove online sites intentionally profit from illicit activities. We see no reason why feds should have exclusive jurisdiction.
The issue stems in no small part from a criminal case brought by Sen. Kamala Harris when she was attorney general. It was pursued by her successor, Xavier Becerra, against Backpage.com’s owners in Sacramento Superior Court.
The state accused Backpage’s owners of money laundering and, initially, of conspiracy to commit pimping. Victims included minors. Backpage’s attorneys contend they are immune from prosecution under the Communications Decency Act, a statute signed into law by President Bill Clinton in 1996. That was two years before Google’s creation; Facebook founder Mark Zuckerberg was 12.
The 1996 act was intended to shield children from internet porn, though the U.S. Supreme Court struck down parts of it on First Amendment grounds. In the decades since, when state and local prosecutors have pursued online publications that carry ads for prostitutes, courts have intervened.
So it happened in August, when Sacramento Superior Court Judge Lawrence Brown, presiding over the Backpage case, dismissed pimping charges. Immunity bestowed by Congress on internet platforms extended even to human trafficking, he concluded. Brown did allow prosecutors to pursue money laundering charges. The case is pending.
As the online publication Axios noted, major internet companies had fought the Senate bill, arguing they were mere platforms and could not be responsible for the materials posted on their sites. Then last week, the Internet Association, which represents Silicon Valley giants Google, Facebook and Twitter, agreed to a compromise to what already looks to be narrow legislation.
The announcement came after members of the House and Senate, including California Democratic Sens. Dianne Feinstein and Harris, pilloried the companies for selling ads to Russians during the 2016 presidential election. By supporting anti-sex-trafficking legislation, the social media behemoths could show themselves to be socially responsible.
“This is not a Republican or Democratic issue,” Becerra told the U.S. Senate in September. “This is an issue of justice, and ensuring that our nation’s top cops – my fellow attorneys general across the country – are able to enforce the law.”
We understand the importance of the First Amendment. We also know the First Amendment should not be used as a shield to prevent honest prosecutions of people who profit from the exploitation of kids.