Allow States and Victims to Fight Online Sex Trafficking Act of 2017

Floor Speech

BREAK IN TRANSCRIPT

Mr. WYDEN. Mr. President, I stand on the Senate floor today in firm agreement with my colleagues that the Congress must do more to combat the scourge of sex trafficking. It is a profound and tragic failure of American institutions that trafficking continues to plague our country and, in fact, has actually increased.

Federal law enforcement has failed to root out and prosecute the traffickers, even when they have been operating in plain sight. So, too, have the big internet companies failed when it comes to sex traffickers who operate on their platforms.

I fear that the legislation before the Senate now is going to be another failure. I fear that it is going to do more to take down ads than to take down traffickers. I that fear it will send these monsters, these evil people who traffic beyond the grasp of law enforcement to the shadowy corners of the dark web, a place where every day search engines don't go, and it is going to be even easier for criminals-- these vicious traffickers--to find a safe haven for their extraordinarily evil acts.

In many respects, this debate mirrors one the Congress went through a little bit more than 20 years ago. Back then, I think it would be fair to say that not many Senators knew much about the internet. In 1995, this body had a laudable goal. The Senate said it wanted to protect kids from accessing pornography online, but the result of those good intentions was, unfortunately, a bad policy--a policy called the Communications Decency Act of 1996.

Behind that policy was a fundamental misunderstanding of both the architecture of the internet and the modern application of the First Amendment. The law didn't just go after those targeting pornography to minors. It took speech that was legal in the real world and made it illegal online. And it produced a paradise for the legal trickster, creating new ways to sue over speech and adversely affecting scores of Americans, medical providers, artists, writers of literature, and more.

As should happen with poorly written policy, all but one part of the Communications Decency Act was struck down by the Supreme Court. The one piece of the law left standing was section 230, which I coauthored with former Congressman Chris Cox. What section 230 was all about was laying out the legal rules of the road for the web. There were innovative new businesses sprouting up all over and novel forms of communication and media connecting and informing people in new ways. But it seemed clear that a quick way to strangle this promising set of developments in their infancy was for these new companies to be held legally liable for every piece of content that users posted on their platforms.

When section 230 was written, nobody could have foreseen all of the effects. Here is what we did know back then. First, we wanted small businesses to start out focusing on hiring engineers, developers, and designers rather than worrying about how they had to hire a team of lawyers.

Second, we wanted to make sure that internet companies could moderate their websites without getting clobbered by lawsuits. I think Democrats and Republicans would agree that this is a better scenario than the alternative, which means websites hiding their heads in the sand out of fear that they would be weighed down with liability.

Third, we wanted to guarantee that bad actors would still be subject to all of the Federal laws. Whether the criminals were operating on a street corner or online wasn't going to make a difference, and we were determined to state that explicitly.

Fourth, we wanted to protect the internet from the whims of State and local legislators. This body has the authority to regulate interstate commerce.

I would ask any of my colleagues to offer an example of how something could be more interstate than the internet.

It may not satisfy some publicity-seeking local official when we talk about the Federal Government's role here, but there is no question that the role of the Congress, in its leading on something that is clearly interstate in nature, is in the best interest of the American people.

For the most part, the framework worked better than I ever imagined it would. As a result of section 230, the small, gutsy entrepreneur-- say an entrepreneur in North Carolina--who has a big dream of working out of his garage has a real shot at succeeding. Marginalized groups of vulnerable Americans have a better opportunity than ever to make their voices heard because of section 230, and small nonprofits have the ability to take their causes nationwide.

One scholar, David Post, even wrote that the 230 law created $1 trillion worth of economic value in the private economy. He said: ``It is impossible to imagine what the Internet ecosystem would look like today without it.''

My wife saw that article, looked at me and said: Well, dear, even a blind squirrel occasionally finds an acorn.

Setting aside spousal kidding, to illustrate why the protection that comes from section 230 is so important, I turn next to what things would be like without it.

Imagine if you are starting a forum site that is dedicated to discussing knitting. If ever there were a topic that sounded drama free, that would be it. Yet suppose somebody goes on the site and shares a pattern he didn't have the right to share. Suddenly, your website is facing a copyright infringement lawsuit. Maybe the controversy--knitting versus crocheting--gets overheated, and the users start trading barbs. Suddenly, you have people slinging defamation suits at your itty-bitty forum host. Then somebody is injured by an automatic needle threader he reads about in a comment thread. Suddenly, you are a codefendant in a liability suit--all because you didn't have the protection of section 230.

Imagine how hard it would be to launch a platform that would be open to the discussion of any topic when even the simplest, most narrowly focused website on the internet can become a magnet for lawsuits. There are not enough lawyers in the world to handle all of that litigation, and my sense is we will have a lot of constituents who will say: Thank God.

In the absence of section 230, the internet as we know it would shrivel. Only the platforms that are run by those with deep pockets and an even deeper bench of lawyers would be able to make it.

Moreover, section 230 is not just about hobbies and commerce. It protects the coordination of free speech, particularly among vulnerable groups of Americans. That is the reason organizations like the libertarian Cato Institute, the progressive Human Rights Campaign, and the ACLU have voiced serious concerns about the legislation before the Senate. You sure don't see those three groups lined up side by side very often, but they are here now. It is because, without the protections of section 230, civic organizations that exercise their right to free speech could be cowed by their more powerful political opponents.

For this example, imagine that a nonprofit organizes a campaign in support of a local ballot measure. It uses social media to build awareness and promote upcoming rallies and events with online discussion boards. Yet, without section 230, powerful interests that are opposed to its work can just swoop in and effectively silence that nonprofit with an onslaught of litigation. Hostile individuals could pose as supporters and make comments on the nonprofit's website that would expose the group to liability suits. I think it is pretty obvious that there would be an enormous, chilling effect on speech in America.

27, 2018] The Death of an Open Internet (By John Samples)

Today the House votes on the Fight Online Sex Trafficking Act (FOSTA), a piece of anti-sex trafficking legislation. It follows and incorporates an earlier effort by the Senate, the Stop Enabling Sex Traffickers Act (SESTA). The bill at issue today is actually a last minute amendment by Representative Mimi Walters (CA) that brings the worst elements of SESTA into FOSTA, creating a hybrid bill far worse than the sum of its parts. This bill has grave consequences for an open, competitive internet and for some people who use it.

Section 230 of the Communications Decency Act has long shielded internet service providers from liability for user generated content, facilitating the internet we know today. FOSTA would likely reduce these protections. FOSTA creates a new federal crime tied to the intent to promote sex trafficking using the internet. Alone, this might be considered an acceptable, narrowly tailored measure. However, the Walters amendment incorporates SESTA's ``knowingly'' standard of liability, which withholds CDA Section 230 protections from sites ``knowingly assisting, supporting, or facilitating'' sex-trafficking. SESTA's standard requires no intent to facilitate sex trafficking, relying upon the mere knowledge that one's app or blog has been used by bad actors.

Preemptive action, driven by effective platform moderation and cooperation with law enforcement, remains the most efficient way to combat online sex trafficking. Unfortunately, FOSTA's incorporation of SESTA's ``knowingly'' standard would stymie this collaboration. If a platform attempts to prevent sex trafficking by removing and reporting offending user generated content, it risks establishing that it had knowledge of the content, rendering it liable for anything that might slip through the moderation process. Instead of encouraging platforms to combat sex trafficking, SESTA's ``knowingly'' standard punishes private attempts to prevent the problem, and cripples broader attempts at effective content moderation.

A combined FOSTA/SESTA would benefit established social media platforms and trial lawyers at the expense of an open internet while doing little to prevent sex trafficking. Facebook may be well resourced enough to cope with the increased legal risk imposed on hosts of user generated content, but their nascent competitors are not. Attempts to avoid running afoul of the ``knowingly'' standard will likely lead to greater reliance on automated filtering.

Other issues have not received the attention they merit. Libertarians (and others) often distinguish law from morality. What is immoral need not be illegal. American law in many jurisdictions does not honor that distinction and criminalizes exchanging sex for payment. Some members of Congress seem pleased this bill will better enforce those laws against people who voluntarily engage in such exchanges.

The consequence of doing so, however, should please no one. Members believe this bill will likely drive women who sell sex for a living off the internet. For them, that is a feature not a bug of the bill. But those engaged in the sex trade are unlikely to give up their work. Instead they will end up on the streets. Why does this change of venue matter? Between 2002 and 2010, Craigslist introduced an ``erotic services'' section on its front page which was used almost exclusively to advertise illegal sex services. Three economists found that this section led to a 17.4 percent reduction in the homicide rate of the women in the relevant jurisdiction. They also noted ``modest evidence'' that the Craigslist section reduced female rape offenses. The economists concluded this reduction in violence came from the women moving indoors and matching more efficiently with safer clients. This potential increase in violence and murder should give pause to even those who deem selling sex immoral.

Congress has worked on these bills for some time through their committees. Now both bills have been thrown together, brought to the House floor, and are expected to become law, all in a week or so. Instead of this rush, the House Judiciary Committee could have finished its work, and the whole House debated and voted on the measure. The Senate and House then could have conferred and perhaps produced a bill acceptable to all. That would be ``regular order'' for Congress in lawmaking. It has once again been ignored. ____ American Civil Liberties Union, Washington, DC, March 12, 2018. Re Oppose H.R. 1865--The ``Allow States and Victims to Fight Online Sex Trafficking Act''. Hon. Mitch McConnell, Majority Leader, U.S. Senate, Washington, DC. Hon. Chuck Schumer, Minority Leader, U.S. Senate, Washington, DC.

Dear Senators: The American Civil Liberties Union (ACLU) writes to express its opposition to H.R. 1865, the ``Allow States and Victims to Fight Online Sex Trafficking Act,'' also referred to as FOSTA, which passed the House on February 27 and may be considered by the full Senate in the coming days or weeks. The bill is a serious, yet unsuccessful, attempt to stop the use of the Internet for sex trafficking without hindering online freedom of expression and artistic innovation. Tech experts say that a thriving Internet requires retaining certain liability protections for online platforms providers. Victims' rights advocates, on the other hand, say the sex trafficking problem requires narrowing those protections. The bill misses the achievable legislative opportunity to do both, and in particular leaves the Internet exposed to the uncertain impact of changed protocols on the part of platform providers.

For nearly 100 years, the ACLU has been our nation's guardian of liberty, working in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States. With more than 2 million members, activists, and supporters, the ACLU is a nationwide organization that fights tirelessly in all 50 states, Puerto Rico, and Washington, DC for the principle that every individual's rights must be protected equally under the law, regardless of race, religion, gender, sexual orientation, disability, or national origin.

The risks to the Internet as the world's most significant marketplace of ideas outweigh the uncertain benefit of the bill to the fight against sex trafficking. Accordingly, ACLU opposes the bill. While the language of H.R. 1865 has been improved to address some of the ambiguities creating the most significant risks, ACLU remains concerned that the bill, if enacted, will foster an atmosphere of uncertainty among online platform providers. This uncertainty will inhibit the continued growth of the Internet as a place of creativity and innovation.

The ACLU has long supported maintaining the statutory immunity provisions of section 230 of the Communications Act of 1934 in order to promote freedom of speech and expression. Section 230 became one of the key factors enabling the robust expansion of Internet-based speech, communications, and commerce. It is a critical factor in maintaining the Internet's diverse ecosystem of speech and art and advancing economic and political dialogue. The rationale for liability protections for online providers is that they should not suffer criminal or civil liability merely for creating online fora to which others may post content, even when some of those communications turn out to be offensive or even unlawful. Any liability should be on those who create and post that content.

We opposed FOSTA's predecessor bill, an onerous bill that would have drastically curtailed protections for online publishers. FOSTA was revised in the House through the efforts of a broad cross-section of victim advocates, law enforcement, and tech experts. The current version creates a new federal facilitation of prostitution crime, but would still impact liability protections for online providers. As finally approved, it also incorporated key aspects of the Senate version of the bill.

ACLU opposed the Senate version of the bill, the ``Stop Enabling Sex Traffickers Act'' (S. 1693, SESTA), but also acknowledged improvements incorporated prior to final committee approval. In particular, the modified version of SESTA heightened the intent standard needed to establish a criminal violation--a key distinction separating a typical online platform provider from one that might inject itself into the online content being posted to its platform. Also, in authorizing state prosecutions notwithstanding the federal liability protections for online platforms, the bill would limit state prosecutions to those where the behavior violated the federal law.

The changes to both the House FOSTA bill and the Senate SESTA bill were the result of concerted advocacy efforts by Internet and other tech experts who testified about the critical importance played by section 230 protections. In the days before the section 230 protections were adopted over two decades ago, online providers were subject to lawsuits for allowing the posting of content. The threats were so financially significant that providers would simply bar the posting of third party content, knowing they could never fully insulate themselves from liability except by blocking all content that might be offensive to some. Since the adoption of section 230, online providers have been free to curate their sites' content without fearing liability for what others post.

Even with the improvements in both bills, ACLU continued to oppose both measures because the risks to the vibrancy of the Internet as a driver of political, artistic, and commercial communication is real and significant. Moreover, there is little to suggest that current law could not be used to find and punish the bad actors who are truly facilitating online sex traffickers. In fact there is at least one pending federal court case that makes this very argument. There are a host of state laws outlawing such behaviors and current liability protections are intended to protect only those who are simply providing a channel for others to use, not those who are determining what is posted and who have a malicious intent to do harm to others. Finally, ACLU is concerned that the scope of the bill's language will encompass the actions of sex workers who have no connection to trafficking whatsoever within its enforcement, including effective harm reduction and anti-violence tactics. Such an outcome is directly contrary to the aims of bipartisan criminal justice reformers who seek to limit the over-federalization of crime where such crimes already exist at the state level.

For the foregoing reasons, the ACLU opposes H.R. 1865 as approved by the House of Representatives. It poses a risk to freedom of speech on the Internet as we have come to know it while purporting to solve a problem that could be addressed in other ways.

If you have questions or comments about ACLU's position on this legislation, please contact First Amendment advisor Michael Macleod-Ball. Sincerely, Faiz Shakir, National Political Director.

BREAK IN TRANSCRIPT

Mr. WYDEN. Mr. President, the fact is that section 230 was never about protecting the incumbents. I have spent my time in public service taking on a wide array of powerful, established interests. When I wrote this policy, I never envisioned a Facebook, but I did hope it would give the little guy and his startup a chance to grow into something big. The bottom line--the central point here--is that it worked.

Despite the fact that section 230 undergirds the framework of the internet as we know it today, there is a significant effort underway to try to take it down, to collapse it. That is, largely, because the big internet companies--the biggest ones--have utterly failed to live up to the responsibility they were handed two decades ago. I am going to explain exactly what I mean.

For these big companies, section 230 is both a sword and a shield. It offers protection from liability, but it also gives companies the authority and, more importantly, the responsibility to foster the sort of internet Americans want to be proud of. In years of hiding behind their shields, these big technology companies have left their swords to rust. Too many companies have become bloated and uninterested in the larger good, and when they have taken positive steps, as Wikimedia has, for example, their practices haven't been adopted by their peers.

I will describe one case study that was reported last week by the tech news website Motherboard.

In 2012, the website Reddit, on which individuals form communities where they share and discuss content, cracked down on users who posted nonconsensual photos of women. These have come to be known as ``creepshots.'' The website Tumblr did not sufficiently police the same inappropriate content, so these reprehensible communities simply relocated from Reddit to Tumblr, and this creepshot problem lived on. That is how easy it is for the creators of vile content to move from one platform to another.

Supreme Court Justice Potter Stewart famously observed that he couldn't define hardcore pornography, but he knew it when he saw it. Congressman Cox and I may not have known exactly what content we intended for sites to be able to take down when we wrote section 230, but I sure know it when I see it. Far too often, the big internet companies refuse to know it even when they see it.

A huge amount of that which populates social media networks each day is every bit as destructive and socially corrosive, if not more so, than the pornography at issue in that famed Supreme Court case. It is the creepshots, the sex trafficking ads, the conspiracy videos about school shootings, and anti-vax nonsense--nonsense that endangers the public health and more.

The tech giants state that no one could track the millions of posts or videos or tweets that cross their services every hour. Nobody is asking them to do that--nobody. Section 230 means they are not required to fact-check or scrub every single post or tweet or video, but there have been far too many alarming examples of algorithms that drive vile, hateful, or conspiratorial content to the top of the sites that millions of people click on every day. Companies seem to aid in the spread of this content as a direct function of their business models.

It is perfectly reasonable to expect some greater responsibility from these giant, multibillion-dollar corporations that were able to thrive as a result of protection that they were guaranteed by law. That was the idea behind section 230. That doesn't carry any obligation to suppress free speech, but it is definitely about being a responsible citizen, a responsible member of the community.

Sites like Facebook, YouTube, and Tumblr constitute the entire internet for millions of users who click through the same group of sites every single day. They have an undeniable role to play in fostering a civil environment. Their failure to do so could very well mean that the internet looks very different 10 years from now, not just for those who spread hateful and conspiracy-driven filth, but for the millions of decent people who use the internet to learn, to find entertainment, and to keep in touch with loved ones.

There was a time when the biggest internet companies had mottos like ``Don't be evil.'' Perhaps it is time for them to aspire to a more modest motto: ``Don't spread evil.''

With all of that said and done, it is not just the internet companies that fail to properly respond to the challenges of our times. When it comes to sex trafficking, which is the underlying issue the Senate is working on today, our country has failed the victims at almost every level.

(Mr. COTTON assumed the Chair.)

For example, the Justice Department could have and absolutely should have investigated the website backpage years ago for its role in promoting sex trafficking; but the fact is, the Federal Government fell down on the job.

Backpage's activities were no secret. In the absence of action by the Department of Justice, a Senate subcommittee, led by our colleagues Senators Portman and McCaskill, conducted their own investigation and subpoenaed key documents. Among those documents were emails that appeared to show that backpage was actively working with sex traffickers to create advertisements. That meant backpage was not due protection under section 230. In fact, a lawsuit in Boston was given the go-ahead based on that precise finding. It has been widely reported that the Justice Department now has its own investigation underway, although it is coming years and years too late. This should have happened eons ago. This is only one example of where the government's efforts have fallen short.

Now, following what I have described, the twin failures of the big technology companies and Federal law enforcement, this body is responding to a very serious moral challenge with flawed policy changes. In my view, the legislation before the Senate will prove to be ineffective, it will have harmful, unintended consequences, and it could be ruled unconstitutional.

I take a backseat to no one when it comes to policies that fight sex traffickers, bring them to justice, and help the victims of their hideous crimes. I have used my position on the Senate Finance Committee to be one of the authors of laws that support victims and provide ongoing funding paid for by those convicted of crimes against children. I have worked with our colleagues, Senator Cornyn, Senator Portman, Senator Klobuchar, to write laws to improve the child welfare system to help prevent kids from becoming victims in the first place. I put my record up against any Member of this Congress when it comes to passing laws that while definitely not going far enough, begin the effort to provide the tools to fight this scourge, but the bill before us today is not going to stop sex trafficking. It is not going to prevent young people from becoming victims, and I am going to describe why that is the case.

First, as I mentioned earlier, the Department of Justice takes the view that an important provision in the bill is unconstitutional. In my judgment, that is another issue that Congress ought to address before sending a bill to the President's desk, but instead it looks like everybody will drive it through as is.

Second--and this is an astounding development--the legislation before the Senate is going to make it harder, not easier, to root out and prosecute sex traffickers. Let me read what the Department of Justice has said recently that proves that this bill is going to make it harder to root out and prosecute sex traffickers. The Department of Justice recently said this legislation would ``effectively create additional elements that prosecutors must prove at trial.'' Colleagues, I will just state we are heading in the wrong direction if we have legislation that would raise the burden of proof in cases against sex traffickers. Imagine that, with nationwide concerns about the evils of sex trafficking, the Department of Justice has said this bill would actually raise the burden of proof in cases against sex traffickers.

The Department of Justice wrote a letter to Chairman Goodlatte of the House Judiciary Committee that lays out the concerns I have just described.

Department of Justice, Office of Legislative Affairs, Office of the Assistant Attorney General, Washington, DC, February 27, 2018. Hon. Robert W. Goodlatte, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC.

Dear Mr. Chairman: This letter presents the views of the Department of Justice (Department) on H.R. 1865, the ``Allow States and Victims to Fight Online Sex Trafficking Act of 2017.'' The Department supports H.R. 1865. We applaud House and Senate legislative efforts to address the use of websites to facilitate sex trafficking and to protect and restore victims who were sold for sex online. The Department appreciates this opportunity to provide technical assistance to ensure that these goals are fully met through narrowly tailored legislation. The Department also notes that a provision in the bill raises a serious constitutional concern.

Every day, trafficking victims in America appear in online advertisements that are used to sell them for sex. The Department works diligently to hold the traffickers accountable for their crimes but faces serious challenges. This is due in part to the high evidentiary standard needed to bring federal criminal charges for advertising sex trafficking, but also because the Communications Decency Act (CDA), codified at 47 U.S.C. 230, bars our state and local partners from bringing any criminal action that is inconsistent with that section. H.R. 1865 addresses both issues and would take meaningful steps to end the industry of advertising trafficking victims for commercial sex. TECHNICAL ASSISTANCE

Section 3(a) of the bill creates 18 U.S.C. 2421A, a new federal offense that prohibits the use or operation of websites (and other means or facilities of interstate commerce) with the intent to promote or facilitate prostitution. The bill also provides for an aggravated felony if the defendant recklessly disregards that the crime contributed to sex trafficking as prohibited by 18 U.S.C. 1591(a). Section 2421A would stand as a strong complement to existing federal laws.

However, the Department notes that Section 2421A as originally drafted is broader than necessary because it would extend to situations where there is a minimal federal interest, such as to instances in which an individual person uses a cell phone to manage local commercial sex transactions involving consenting adults. Therefore, the Department would support amending the language of Section 2421A so that Congress can clarify its intent to target traffickers using or operating interactive computer services, as follows (with a corresponding change to 2421A(b)): ``Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service, as defined in Section 230(f) of Title 47, United States Code, or conspires or attempts to do so, with the intent to promote or facilitate prostitution shall be fined under this title, imprisoned for not more than 15 years, or both.''

The Department believes that any revision to 18 U.S.C. 1591 to define ``participation in a venture'' is unnecessary. Section 1591 already sets an appropriately high burden of proof, particularly in cases involving advertising. Under current law, prosecutors must prove that the defendant knowingly benefitted from participation in a sex trafficking venture, knew that the advertisement related to commercial sex, and knew that the advertisement involved a minor or the use of force, fraud, or coercion. See Backpage.com, LLC v. Lynch, D.D.C., Civil Action No. 15-2155, Docket 16 (Oct. 24, 2016). While well intentioned, this new language would impact prosecutions by effectively creating additional elements that prosecutors must prove at trial. In the context of the bill, which also permits states to bring actions for conduct equivalent to Section 1591, we are also mindful that this language could have unintended consequences as applied by the states.

Section 4 of H.R. 1865 also sets forth critical revisions to the CDA to permit state prosecutors to bring criminal actions related to sex trafficking and the use of the interact with the intent to promote or facilitate prostitution. The Department believes that the existence of this exception to the CDA will alter the landscape of the industry involved in advertising prostitution. CONSTITUTIONAL CONCERN

We note that Section 4 of H.R. 1865 states that the changes to the CDA ``shall apply regardless of whether the conduct alleged occurred [sic], or is alleged to have occurred, before, on, or after such date of enactment.'' This raises a serious constitutional concern. Insofar as this bill would ``impose[] a punishment for an act which was not punishable at the time it was committed'' or ``impose[] additional punishment to that then prescribed'' it would violate the Constitution's Ex Post Facto Clause. Cummings v. Missouri, 4 Wall. 277, 325-326 (1867); see Beazell v. Ohio, 269 U.S. 167, 169-170 (1925); U.S. Const. art I, 9, cl. 3. The Department objects to this provision because it is unconstitutional. We would welcome the opportunity to work with Congress to address this serious constitutional concern.

Thank you for the opportunity to present our views in support of this legislation. We hope this information is helpful, and we look forward to continuing to work with Congress on this important legislation. Please do not hesitate to contact this office if we may provide additional assistance regarding this or any other matter. The Office of Management and Budget has advised us that from the perspective of the Administration's program, there is no objection to submission of this letter. Sincerely, Stephen E. Boyd, Assistant Attorney General.

BREAK IN TRANSCRIPT

Mr. WYDEN. Mr. President, that is not the only problem when it comes to enforcing this law. The bill before the Senate is focused on taking down online advertisements, not on catching criminals or protecting victims. Taking down the ads doesn't mean the pimps and predators will stop and say: Oh, good; we see what the Senate is doing. We are now going to start following the rules. When the ads come down, colleagues, the criminals will go as fast as they can to the darkest corners of our society. Instead of stopping trafficking, the bill is going to push it to the dark web, the dark alleys, and overseas. You can't get to the dark web with traditional search engines.

Career Federal law enforcement officers, the expert investigators, are the people who know how to root out the traffickers under these circumstances. They have expertise that State and local law enforcers don't have. So my view is, by handing new authorities to local officials, the bill moves in the wrong direction.

In my view, the right approach is to make sure career, expert Federal law enforcement officers and investigators have the resources they need to get the job done. One of the amendments I will be offering today provides $20 million a year for 5 years to the Attorney General to spend in coordination with the FBI and Homeland Security to investigate and prosecute those who criminally facilitate sex trafficking. The bottom line, if Senators want law enforcement to do a better job of stopping those like backpage, my amendment gives the right people the resources they need to bring these monsters to justice.

I heard my colleague from Alaska, Senator Sullivan, a good friend, talk at some length about how important it was to have resources to fight the scourge of these traffickers who get more and more sophisticated. They are people who are very clever about staying out in front of the law. When they are on the dark web, it is going to take resources to fight them and put them behind bars. So our colleague from Alaska, Senator Sullivan, sure ought to be for this amendment because this amendment offers real money right now to prosecute these monsters and get them behind bars.

Finally, the bill before the Senate punches a hole in the legal framework of the open internet. I don't every single day quote the editors of the ``Wall Street Journal,'' but I have always had a motto that I will shout out anybody when they are right. The Journal recently summed up the impact of the bill. They said this is definitely going to be an online ``lawsuit bonanza.'' They predict any website that ``should have known'' criminal activity took place on its platform will be a target for lawsuits. Any message board or chat room where users interact with each other can become a new target for litigation.

Without specific protections for companies that make good-faith efforts to find and stop criminal behavior on their platforms, this legislation could actually punish companies that try to moderate their users' posts but let something slip through. Just by looking for illegal material, a website could be setting the table to be sued over anything they didn't find.

The second amendment I will be offering would clarify this issue. It is what is known as the Good Samaritan clause, and we felt strongly about it several decades ago. The companies decide, as a result of a poorly written bill, that their only option is to put their blinders on and ignore vile, illicit content. That is bad for everybody except for the criminals. So I want to eliminate that uncertainty, and I want particularly these small startup companies that are so important for our future to know, without a doubt, that they have the right to moderate the content users post.

So, in technical language, what this amendment says is, neither the presence nor the absence of an attempt to moderate content online can, by itself, trigger liability.

The Journal raised more than the Good Samaritan issue. Just as bad, by passing this exception to section 230, courts might make it harder to prosecute websites for other crimes. Here is what the Wall Street Journal editor said: ``If Congress provides a carve-out for sex trafficking, courts might conclude that Section 230 was intended to be applied narrowly for other crimes and make it harder to prosecute websites [that are] complicit.''

I do fear this bill is going to set off a chain reaction that leads the Congress to cut away more categories of behavior from section 230, dismantle the legal framework that has given the United States the position as a tech economy superpower. This position did not happen by osmosis. It happened because 20 years ago there was an effort to try to lay out a sensible legal foundation, a sensible legal basis for the internet, and that is what is under attack today.

If this legislation that chips away at section 230 is a bad idea for the internet, if you are following this debate, you probably want to know why the biggest internet companies are big cheerleaders for it-- the big companies like Facebook. It is because it will pull up the ladder in the tech world, leaving the established giants alone at the top.

As I said, section 230, from the beginning, was all about giving the little guy the best possible chance to succeed. That is what this has always been about. The big guys can take care of themselves. We want to have a policy that encourages innovation for the startups. That has been a bedrock of my time in public service. Chipping away at the law that is going to curtail the culture of innovation and bare-knuckled competition that has been the defining characteristic of the internet for more than two decades doesn't make any sense to me.

The companies that have reached the top of the internet's economy are kind of worried about whether they are going to be able to keep their place at that altitude. Regulators once feared that Microsoft would dominate the way Americans interacted with the internet, but then a little company called Google appeared on the scene. Facebook, a half- trillion-dollar company got out of its infancy by displacing a competitor called MySpace.

I think colleagues ought to know that these established companies would do just about anything to avoid being displaced themselves. Facebook is trying to make clear that they will do just about anything not to become another MySpace.

Today, Facebook is under attack for allowing the Russians to interfere with our elections. They are under attack for giving hate groups a platform to spread their bile. They are under attack for giving conspiracy theorists, through their algorithms, a platform to lure in the unsuspecting. They are under attack for collecting, monetizing, and storing far more personal information than their users ever suspected. It is a great tool for connecting with family and friends, but it is also something a small team of well-caffeinated coders could duplicate and improve upon in terms of its functionality without a lot of difficulty and without some of the baggage Facebook has picked up over the last 6 months.

So how do they stay on top? One way is to acquire the competition. Young people always tell me that nobody under 30 uses Facebook. The new generation certainly uses Instagram, so they might not even know that it is part of the same megacompany bought out by Facebook. But you can't buy everybody, so then you go to the oldest trick in the book-- make it harder for new companies to get in the game. You don't have to compete if there is no competition, and that is where this legislation comes in.

If internet startups are no longer protected by section 230 and they are exposed to the threat of near constant litigation, it is going to be a lot tougher for them to secure injections of funding and grow. Fewer venture capital firms will be willing to risk their deep pockets if their early-round investments are swallowed up by legal fees instead of paying for coders. But in the eyes of the giant, established corporations, a world without section 230 isn't seen as much of a threat. The $50 million a year in liability statements for these big companies is a drop in the bucket for them. It is the cost of doing business. And it is an added benefit if the cost is too high for new companies to be able to get in the game.

The biggest of these internet companies are trying to hold on to their position at the top with all their might, and they are certainly very interested in using the government to do it. That has been true of a lot of industries before them, and it should come as no surprise that it happens again in the technology area.

The Facebooks of the world will tell you how important section 230 was to the innovation of the last 20 years. Yet there are technology companies like IBM that haven't done a lot of innovating for the last 20 years that want to see section 230 done away with entirely for trumped-up reasons. So, for business, let's not mistake what this debate is all about for a lot of these big, multinational companies. It is not about right or wrong; it is about dollars and cents.

So what does the future hold? As the Wall Street Journal observed, a lawsuit bonanza is in the works. It is pretty ironic that a Republican Congress and a Republican President are going to create the biggest new source of opportunities for trial lawyers in decades.

For the technology business, this bill means bigger is better--not better for innovation, not better for consumers, but better for the profits of those lucky enough to have reached the top of the mountain first.

It is safe to expect a slew of proposed new exceptions to section 230. When somebody is injured, they and their families want recourse, but our legal system is woefully bad at delivering justice. It is unfortunately far better at facilitating deals--often unjust deals-- because numbers are far easier than doing right. This failure means that a line of injured parties will be petitioning to seek the sort of recompense only their Member of Congress can provide.

For America, section 230 is very likely the reason we have a multitude of billion-dollar internet employers and the Europeans have exactly zero. Where countries aren't hiding behind the trade barrier of the great firewall or other artificial market forces, American innovation has won out over the rest of the world.

I think it is pretty hard to see our country thrive and prosper without the kind of legal foundation I have described today, without these 230 protections. And a whole host of scholars have pointed out that this is a unique law in the world. It is the case where the United States got the temperature right from the beginning, and it has led to our dominance in tech. But if the United States goes out and puts all those cracks--those potential cracks, the real cracks--into the foundation of section 230, I would wager that there are plenty of other countries that are going to change their laws to siphon away our companies and take the jobs they create.

The fact is--and I am not sure we in the Senate think about it every day--we are in a fight for the internet literally every day. Our internet companies aren't engaged in the fight. Their interest is currying favor with nations with which they wish to do business. The Chinese, the Iranians, the Russians, even our European allies are maneuvering to impose a more repressive view of speech and expression on individuals around the world, and unfortunately it has a lot of allies here at home.

Free speech has never been free, and it is often not popular. It was wrested from the grip of a dominating state, and it ought to be--it must be defended by every generation, lest the state reclaim control.

Today, in my view, the Senate is looking at taking a real step backward and down a path that this body will regret.
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Mr. WYDEN. Mr. President, I believe strongly that Congress must do more to combat the scourge of sex trafficking and bring these monsters to justice and actually put them behind bars.

I have heard my colleagues from the other side talk again and again about how more resources are needed to fight this evil. This is the only proposal offered to actually put more dollars into the hands of prosecutors to get the criminals behind bars, and it is going to be harder to prosecute them now that they have moved to the dark web.

My colleague has said that prosecutors are against it. It is because my colleague has worked as hard as he could to tell prosecutors that if anything like this is added, it is going to die in the House. Let me just tell my colleague that when we put in more money to prosecute these monsters and it passes, the other body will pass it in about 15 minutes.

I urge my colleagues to vote for the only amendment that actually is going to put these criminals behind bars because we are putting real money into that effort.
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Mr. WYDEN. Mr. President, in my view, it is clear that when colleagues face so much political headwind, they don't feel comfortable supporting something I know they all believe in very deeply. I believe every Senator believes there ought to be real money to go after sex traffickers. I have spoken to colleagues on both sides of the aisle, and they have taken a real pounding on these amendments. My sense is that there would also be opposition to what I think is another practical, good idea, which is the Good Samaritan amendment.

As I have stated, because I anticipate having to turn back to this topic in short order after the effects of this bill become clear, I am going to save this topic for a vote at that time.

2212.
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Mr. WYDEN. Mr. President, as I stated several hours ago, I stand firmly with colleagues who believe more must be done to fight the scourge of sex trafficking and, particularly, to put these monsters behind bars. The bill before us, in my view, takes a flawed approach. What is going to happen is that the criminal sex trafficker is going to head toward the dark web. This is a place you cannot access with a traditional search engine. It is going to be harder when they are in the shadowy corners of our country, of the internet, in order to prosecute them. It is also going to chip away at the foundation of the net, which is so important for vulnerable people. It is why the Human Rights Campaign Fund has made it clear that they are opposed to the bill. We shouldn't be putting at risk vulnerable groups and small startups.

Given that, I believe that this bill, which will clearly pass, will be something the Senate will come to deeply regret. I will be opposing the bill.

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