Allow States and Victims to Fight Online Sex Trafficking Act of 2017
Floor Speech
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Mrs. WAGNER. Mr. Chair, I thank the gentlewoman from Alabama, my friend, Mrs. Roby, for her fearless leadership and support on this issue.
Today we bring, Mr. Chair, H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act, or FOSTA, to the floor, finally.
Mr. Chair, I want to thank my partners on the other side of the aisle, my dear friends, Congresswoman Joyce Beatty and Congresswoman Carolyn Maloney, for their tireless support on this effort.
The sad truth is that sex trafficking is a crime as old as the Nation itself. Over the past few years, Congress has routinely taken bipartisan action to fight it, yet sex trafficking seems to continue unabated. This is largely because the methods of recruitment and sale of sex trafficking victims have evolved with technology, and U.S. laws have remained stagnant.
Today, when the House votes on FOSTA, we will be sending a clear message: businesses that sell human beings online can no longer do so with impunity. Section 230 of the Communications Decency Act explicitly allows enforcement of Federal criminal law, but courts have mistakenly found that it does not allow robust enforcement of State criminal law.
Last summer, 50 State attorneys general called on Congress to untie their hands to allow them to bring justice to the websites that sell our children and the victims. Empowering our State and local prosecutors is in the best interests of the American people. Federal prosecution is discretionary, and the vast majority of crimes are prosecuted at the State and local level.
Most websites engaging in the online sex trade are first identified at the local level and should be quickly addressed before they ever reach the size of Backpage.com. Without proper State and local enforcement, there is no real criminal deterrent against businesses looking to enter the sex trade. Today, we will change that.
FOSTA will allow prosecutors across the country to protect their communities without fear of section 230 preemption. FOSTA will produce more prosecutions of bad actor websites, more convictions, and put more predators behind bars. It will provide a meaningful criminal deterrent so that fewer businesses will ever enter the sex trade and fewer victims will ever be sold and raped.
Clarification of section 230 is desperately needed. In August 2017, the Sacramento Superior Court dismissed charges brought against Backpage by the California attorney general, saying: ``If and until Congress sees fit to amend the immunity law, the broad reach of section 230 of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking.''
Today, Mr. Chair, Congress sees fit to amend the immunity law to hold accountable websites that support exploitation. FOSTA also creates a new crime targeting websites that are intentionally promoting prostitution, and it encourages States to use or adopt similar laws.
Unfortunately, sex trafficking ads are written to evade law enforcement. Looking at these ads, you usually can't tell that force, fraud, and coercion were used against the victim or that the person depicted in the ad is a minor.
Because indications of knowledge of sex trafficking are typically hidden, it is nearly impossible for prosecutors to demonstrate beyond a reasonable doubt that the website operators knew that the ads involved sex trafficking. This is why prosecutors tell me that they would oftentimes prefer to use prostitution laws instead of sex trafficking laws when charging these websites.
Sex trafficking laws are written to target pimps, johns, and businesses, but are not always the best tool against the online sex trade. FOSTA gives prosecutors the freedom to use both State sex trafficking laws and the State prostitution laws, and lets prosecutors decide how best to do their jobs.
Importantly, prosecutors will be able to seek a higher penalty for websites that promote prostitution and recklessly contribute to sex trafficking. Online sex trafficking is flourishing in America because there are no serious legal consequences for the websites that profit from the exploitation of our most vulnerable.
FOSTA, combined with the SESTA Walters amendment that adds back in victim-centered provisions from my original language, will finally create these serious legal consequences.
Today we are voting to keep our commitment to trafficking survivors, both by empowering them to hold accountable the websites that stole them and by arming prosecutors with the tools they need to ensure that the most vulnerable members of our society are never sold online in the first place.
I trust that my colleagues will join me in this vote to fundamentally transform the fight against online sex trafficking in America.
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Mrs. WAGNER. Mr. Chair, I thank the gentlewoman for yielding and for bringing up the Walters amendment to H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act, called FOSTA.
The Walters amendment reinstates critical pro-victim provisions from my original bill. It also reflects the work that has been done in the Senate on these provisions, which are the meat of S. 1693, the Stop Enabling Sex Traffickers Act, or SESTA.
FOSTA has over 175 House cosponsors and SESTA has over 67 Senate cosponsors. These two bills depend on each other to address the problem of online sex trafficking.
Mr. Chair, we should not allow Big Tech money and special interests to try and overdefine this conversation and override our criminal justice system.
FOSTA amends section 230 to allow for stronger criminal enforcement against websites that profit from human trafficking, and SESTA amends section 230 to allow for stronger civil enforcement against websites that profit from human trafficking.
They are two sides of the same coin and they must pass together. We need both criminal and civil tools to properly combat the highly ``lucrative'' industry of online sex trafficking.
Moreover, it is imperative that we clarify that section 230 does not impair or limit the ability of trafficking victims to use the Federal private right of action that Congress clearly provided in the Trafficking Victims Protection Act.
Two years ago, the First Circuit Court of Appeals ruled that there is a fundamental tension between these private right of action and section 230. Today, by voting ``yes'' on the Walters amendment, the House will dispel this tension. No website is immune from civil liability for knowingly facilitating the sale of trafficking victims.
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Mrs. WAGNER. Mr. Chair, I thank the gentlewoman from Alabama for yielding.
Mr. Chair, in recent years, sex trafficking has moved from the streets to the internet. The National Center for Missing and Exploited Children has witnessed an 846 percent increase in suspected child sex trafficking reports. Eighty-one percent of these reports concern online trafficking facilitated by websites that help traffickers post advertisements of child victims.
I find it hard to imagine that if a neighborhood business hosted a slave auction, the auctioneer would not be considered liable. But that is actually what is happening with websites like backpage.com and hundreds others.
I have spoken with State and local prosecutors across America who want to hold online advertisers accountable for facilitating traffic and promoting prostitution, but they cannot.
Section 230 has been interpreted so broadly that courts have ruled in favor of backpage.com in criminal and civil cases, despite the website's clear criminal conduct. These rulings defy congressional intent.
Twenty-two years ago, Senator Jim Exon from Nebraska, the sponsor of the Communications Decency Act, stated that ``the information superhighway should not become a red-light district.''
Section 230 was an amendment to the CDA that intended to motivate websites to screen explicit content in ``good faith,'' and to shield websites from unfair liability for third-party content. However, section 230 was never intended to shield websites from liability for criminal conduct.
Congress did not intend to allow businesses to commit trafficking crimes online that they could never commit offline. It never meant to imply that criminal conduct can hide behind the defense of legitimate publishing or editing.
H.R. 1865 is a long-overdue clarification of section 230 explaining to America's courts that State and local prosecutors are not handcuffed from protecting their communities and that the State laws should be freely enforced against websites that unlawfully promote prostitution and sex.
Mr. Chair, the Jackson Lee amendment will help us track the use of this new crime, and I am delighted to support it. I thank the gentlewoman for offering it.
Mr. Chair, I am horrified that children and adults are sold on the internet like a T-shirt or takeout. I am horrified that human beings are sold with impunity and have no access to justice.
Today, please vote ``yes'' for justice.
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