Allow States and Victims to Fight Online Sex Trafficking Act of 2017
Floor Speech
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Ms. LOFGREN. Mr. Chairman, section 230 of the Communications Decency Act has been an important element of the law. It has allowed the internet to flourish. We support that.
But we never intended section 230 to protect people who are trafficking in human beings, who are abusing children, who are prostituting children. Really, modern slavery. It is an outrage.
And when we saw the court cases about Backpage where they basically used the CDA as a shield for action that was absolutely criminal, in my judgment, those guys belong in prison, as far as I am concerned. The good news is that the bill drafted by Representative Wagner actually fixes this problem.
We just got a letter from the U.S. Department of Justice. I just received it. This is what they say: ``Every day, trafficking victims in America appear in online advertisements that are used to sell them for sex. The Department works diligently to hold traffickers accountable for their crimes but faces serious challenges.''
It goes on to say that the ``high evidentiary standard needed'' is a problem; but it also says that that bill, as drafted and reported from the Judiciary Committee, addresses the issues that are preventing prosecution, and it ``would take meaningful steps to end the industry of advertising trafficking victims for commercial sex.''
I would just like to say thanks to the authors of the bill, as well as the Judiciary Committee, on which I serve. We worked together on a bipartisan basis to make adjustments. We had hearings so that we could have this bill that the Department of Justice says will allow them to successfully go after these guys who are trafficking these children and other victims.
A word of caution, however, and I will talk about this later when the amendment comes up, on the Walters amendment.
The Justice Department says in this letter that they believe ``any revision . . . to define `participation in a venture' is unnecessary,'' and, in fact, that the ``new language would impact prosecutions by effectively creating additional elements.'' In fact, they say the amendment will make it harder to prosecute.
We get told in law school that bad cases make bad law. One of the ways to avoid that is to have the committee process work through it. That did not happen in the case of the amendment that will be offered later.
So based on the Justice Department's admonition, I am grateful to their celebration of the underlying bill, and I am mindful of their warning that the amendment could undo all of the good work that we have done on a bipartisan basis.
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Ms. LOFGREN. Mr. Chairman, I rise in opposition.
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Ms. LOFGREN. Mr. Chairman, section 230 of the Communications Decency Act stands for a very simple, powerful idea: a website should not be liable for the actions of its users.
Because of section 230, we have the internet as we know it today. Also, because of section 230, the vast majority of websites can safely and effectively report and coordinate with law enforcement on various crimes, including sex trafficking, child pornography, and the like.
Unfortunately, section 230 has been utilized by bad actors, including a notorious one, Backpage, to traffic in children and to exploit victims. Really, they are slavery victims. The underlying bill, H.R. 1865, puts a stop to that. As the Department of Justice has noted, it will allow for the prosecution of people who are trafficking in victims online.
The Walters amendment, however, for the first time, would carve a hole in section 230 and make it actually more difficult than the underlying bill to prosecute traffickers online. By creating potential liability for ``knowing'' that a user is using their website for facilitating sex trafficking, the Walters amendment would create what legal experts call the moderator's dilemma.
There is no obligation under law to moderate your website. In fact, if you have 2 million users or 10 million users, you really don't know what is being posted by your users. But under this amendment, if you made any effort to try and find out what was happening among your users--as many websites do today, especially for child pornography, but also for trafficking--you would incur liability because you would then have a reason to know.
Other laws that deal with intermediary liability, such as a requirement to report child pornography or copyright safe harbors of the DMCA, have very clear and specific provisions on when a website has sufficient knowledge and what express actions it should take. The Walters amendment has none of these. There is no case law on it either.
So the amendment really would put web owners in a very weird place. If you do anything to moderate, you are risking liability. The safe incentive would be to not monitor at all. That would be tragic and it would be a gain for child predators, although I know that that is not the intention. You can't stop moderating just for trafficking. You either moderate or you don't moderate.
We do know that there have been tremendous advances for machine- operated filters to find child pornography. Actually, that is one of the easiest things to find, using filters, and it is very important that websites cooperate with law enforcement to catch those bad guys.
Under the Walters amendment, the disincentive would be huge not to do that. I think that is why the Department of Justice does not support the Walters amendment.
As I said earlier--and the chairman put the letter into the Record-- the Department believes that any revision to define participation in a venture is unnecessary. They say that, while well-intentioned, this new language would impact prosecutions by effectively creating additional elements that prosecutors would have to prove at trial.
That is why it is a bad idea to adopt this amendment. As the chairman of the committee has said, section 4 of the amendment also violates the ex-post facto clause of the Constitution by attaching criminal liability to actions that preceded the enactment of the bill. This is clearly unconstitutional.
Although I don't have any doubt as to the good intentions behind the offering of this amendment, it would actually impair the ability to protect victims. It would make it more difficult to prosecute, as the Department of Justice has pointed out.
It didn't go through the Judiciary Committee. I think that is a major fault. One of the things we were able to do in the committee--and we did this together, on a bipartisan basis--was to sort through the unintended consequences of seemingly simple language.
Nothing in writing law is simple. Certainly, nobody wants a provision that is going to negatively impact prosecutions; have unintended consequences for State actions, as the Department of Justice has pointed out; and would provide a disincentive for people to moderate activities to try and catch bad guys and to work with law enforcement.
So, although the intentions are good, the amendment is flawed. I hope we vote ``no'' on it, and then I hope we give a resounding unanimous vote ``yes'' for the underlying bill.
Mr. Chair, I yield back the balance of my time.
Mrs. MIMI WALTERS of California.
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Ms. LOFGREN. Mr. Chair, I demand a recorded vote.
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