On March 21, 2018, the Senate passed a hybrid of S.B. 1693, the “Stop Enabling Sex Trafficking Act of 2017” (“SESTA”), and H.R. 1865, the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (“FOSTA”) in a 97 – 2 vote. However, the road to getting this vital piece of legislation passed was marred with unbridled misinformation and controversy.
Opponents of these two bills, including New York Post author Karol Markowicz, touted the same two arguments in support of their position: first, they claimed that SESTA/FOSTA would toll the death knell for free speech on the internet, and second, that these bills will not serve to protect victims of trafficking, but would actually harm them and those who engage in commercial sex by choice. Neither of these arguments accurately portrays the law as it would be affected by these bills, and all fail to face the reality that sex trafficking will continue to thrive if nothing is done.
Those who argue that the passing of SESTA/FOSTA will kill free speech on the internet have, at best, misunderstood the potential First Amendment ramifications of the proposed bills and, at worst, willfully misinterpreted the bills so as to incite others to anger about these proposed changes. In reality, the legislative change do not even touch the “Good Samaritan” immunity provision of the Communications Decency Act (“CDA”) which has been touted as a bastion of free speech on the internet. This immunity provision was created to protect website owners who choose, in good faith, to screen their websites for offensive or illegal material. These screening mechanisms do not have to be either foolproof or perfect; instead, for CDA immunity to kick in, they merely have to be undertaken with good intentions. Thus, because the CDA only allows for private screening of third-party content and does not require it, there is no state infringement upon individuals’ First Amendment right to free speech. For more information about the Good Samaritan screening provision of the CDA, see here and here.
The second argument often put forth by opponents of SESTA and FOSTA is that the proposed changes to the CDA, specifically the creation of an exception for violations of the federal sex trafficking law, 18 U.S.C. § 1591, will increase liability for both website owners and for individuals who willingly choose to advertise themselves for sex on these websites. What these opponents seem to ignore is that both SESTA and FOSTA impose high mens rea standards on those who seek to hold these website owners liable under the trafficking laws.
Rather than creating open season on websites where these types of advertisements may be posted, they open websites up to liability only when a prosecutor or civil plaintiff can show not only that the website owners knew that their actions “assist[ed], support[ed], or facilitat[ed]” a violation of § 1591, but also knew that the victims were “recruit[ed], entic[ed], harbor[ed], transport[ed], provid[ed], obtain[ed], advertis[ed], maintain[ed], patroniz[ed], or solicit[ed]” by means of “force, threats of force, fraud, or coercion” or were under the age of eighteen. This double layer of knowledge creates an extremely high bar for prosecutors and plaintiffs to jump—in most cases, it will be nearly impossible to show that the website owners knew that advertisements contain images of individuals who were forced, defrauded, or coerced into trafficking.
It is important to note that the CDA only provides immunity for website owners, not for third-party individuals who post content on these websites. Thus, any argument that SESTA/FOSTA will expose individuals who willingly choose to sell themselves for sex is a strawman argument: not only were these individuals never protected by the CDA, but if someone willingly chooses to advertise themselves then they were not forced, defrauded, or coerced and, therefore, the trafficking law was not violated in any way. CSE Institute Director, Shea Rhodes, Esq. further explained the misinformation around this legislation in a recent op-ed she co-wrote alongside other experts in The Hill.
Regarding the statistics cited by Ms. Markowicz in her New York Post piece, while she claimed to be critical of the studies she based her arguments on, she completely failed to understand the basic nuances that make human trafficking such an insidious crime against humanity. The CSE Institute advocates for the Nordic Model, which decriminalizes those being prostituted and provides supportive social services and exit strategies. However, many members of the public, law enforcement, and the media still refer to prostituted persons strictly as criminals, which keeps many victims in the shadows. Additionally, traffickers are not readily asking to have their business of selling people be aired in the public square. Thus, it can be extremely difficult for research groups to collect data on large populations of victims and traffickers to bolster their studies. Just because we do not always see victims and traffickers on our front porch does not mean they don’t exist.
Ms. Markowicz also claims that the media has induced a “hysteria” about human trafficking based off of inflated numbers of these cases being reported. The United States Department of Justice was able to list several prosecutions involving sex trafficking over the past few years, which does not include local cases being tried in courts all over the country. Prosecuting cases in general, especially those involving human trafficking, is not as easy as it looks on TV. Victims rarely contact law enforcement to report they are being trafficked. It sometimes takes trafficking-specific training to teach law enforcement what this clandestine crime even looks like. Further complicating the issue, many victims have “trauma-bonded” with their traffickers who they see as their boyfriends, thinking they need their traffickers for food, shelter, clothing, drugs, etc. Most are scared they will be brutally beaten or killed if they disobey their traffickers. And, in reality, the longer it takes a victim to be recovered or come forward, the more evidence that is lost, letting victims remain victimized while their traffickers run free. Therefore, the statistic used by Ms. Markowicz about Cook County, Illinois only prosecuting 2% of trafficking cases is actually a reflection of the difficulties involved in prosecuting sex trafficking cases, not a lack of these cases existing.
At the end of her article Ms. Markowicz cherry-picks statistics by the National Human Trafficking Hotline in order to give some credence to the idea that human trafficking does, in fact, exist. Markowicz writes that 4,460 potential trafficking cases were reported to the hotline, out of a population of 320 million in 2017. Yet, according to The National Human Trafficking Hotline’ s own website, they received 26,557 calls to their trafficking tip-line in 2017. Out of that number, they were able to identify 4,687 of those calls as being made directly from victims and survivors of trafficking, 10,534 calls displaying what the organization considers “moderate indicators” of a trafficking situation, and 10,708 calls containing “high indicators” of a trafficking situation. The website also goes on to cite that there were 8,524 human trafficking cases reported in 2017, all together. To reiterate, this is a crime that is clandestine by design. Victims rarely self-report, and the perpetrators aren’t held accountable until they are caught. Thus, these numbers are likely just the tip of the iceberg when it comes to the actual size of the problem.
Finally, Ms. Markowicz’s makes the troubling assertion that legalizing prostitution is the best way to end human trafficking. This is an “industry” literally built upon the suffering of others. Little girls and boys do not grow up aspiring to be sold for sex to strangers as a day job. In fact, research shows that in places where prostitution has become legal there is still trafficking, there is still violence, and the demand for commercial sex actually increases. To promote the legalization of prostitution as a solution to human trafficking is irresponsible and down-right degrading to the survivors of human trafficking who experienced the atrocity Ms. Markowicz has the luxury of labeling “hysteria”.
All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University.