I invited my longtime friend Mary Leary, professor of Law at The Catholic University of America, to join me in writing this column. She's a former prosecutor and a fierce defender of children. It's my honor to share today's byline with her.
There has been a great deal of discussion in Washington these last few weeks about women. As sexual assault and sexual harassment allegations surface regarding many people in power, Congress is struggling to find its voice. While all members of Congress can claim they want a world where women are not sexually objectified, harassed, or assaulted, these words need to be backed up by action – not just action regarding sexual harassment training for Congressmen. Such efforts run the risk of being merely symbolic. They must be supported by meaningful legislation that conveys a sustained message that women and girls are not solely sexual objects; and that no one should able to exploit or profit from their exploitation. Now, that would be a change.
Congress has just such a chance to do so. Two bills are pending before it that address the crime of sex trafficking. According to the United Nations, this is a crime whose victims are over 95% women and girls. It disproportionately affects the most vulnerable and marginalized in the country. Many of these women and girls are sold online, and the websites that sell them have been given immunity by the courts. Yes, victims of sex trafficking are bought and sold in the public square, and the websites that facilitate this have been given immunity for their actions.
That is right. Immunity.
In 1996 when the Internet was in its infancy, Congress passed Section 230 of the Communications Decency Act with two general goals. First, to promote the growth of the Internet. Second, to shield children and families from explicit content. As a result Section 230 gives protection from civil liability to good faith service providers who voluntarily screen out such material. It also does not treat websites as responsible for third party content posted on their platforms. After the passage of Section 230, our cultural and legal awareness of sex trafficking emerged. All agree section 230 was never intended to shield websites from criminal or civil liability for collaborating with sex traffickers. Yet, courts have struggled reconciling this 1996 law within this 21st century reality, and they have asked Congress for help.
If this were not troubling enough, since 2008 Congress has already authorized victims of sex trafficking to be able to sue those who knowingly benefit financially from participation in a sex trafficking venture. Notwithstanding this common sense goal of allowing victims access to justice from their traffickers and those who profit from this trafficking, courts have ignored this Congressional intent. Most recently, the First Circuit threw out a lawsuit against Backpage.com, stating that even if “Backpage’s conduct amounts to ‘participation in a sex trafficking venture’…The strictures of Section 230(c) foreclose such suits.”
After years of inaction, as well as courts asking for clarification, Congress dragged its feet. However, in the wake of a Senate investigation into Backpage.com that revealed trafficking facilitation by such websites, two bills have been introduced in Congress that would no longer allow the Internet to be a place where platforms can collaborate with sex traffickers with impunity - actions that would be a crime in any other context. Senators Portman and Blumenthal are the authors of the bipartisan Stop Enabling Sex Trafficking Act (“SESTA”), which has 52 cosponsors and which the Senate Commerce Committee unanimously approved. Congresswoman Ann Wagner is the author of the bipartisan Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”) which had 171 cosponsors in its original form. Both these bills explicitly state that Congress never intended Section 230 to protect websites engaged in such trafficking actions.
Seems like pretty common sense legislation, right? Well, this is where that power dynamic between women and the powerful emerges. While the Senate Commerce Committee did approve SESTA out of Committee, it contains a limited private right of action – albeit more than currently exists – not the full-throated rights normally afforded victims of a crime. The next day, Senator Ron Wyden put a hold on the bill, notwithstanding receiving a letter from victims urging him not to do so. On the House side, Representative Wagner’s bill originally allowed victims and survivors access to both state and federal courts. However, yesterday the House Judiciary Committee marked up a substitute version of that bill which has no private right of action in federal court, nor an explicit right in state court other than what is already allowed (which refers to one case in one state that was settled).
The tech industry has fought access to courts at every turn. Evidence has emerged that this bill was drafted in large part by tech lobbyists. Again, victims, survivors, and all major service organizations such as Covenant House united and urged the House Judiciary Committee to not accept these new proposals that insulate the powerful tech industry and harm these predominantly female victims. Our call went unheeded.
When a person is harmed in America, he or she generally has the right to go to a courthouse and seek to hold those who inflicted or facilitated the harm accountable. This is a useful deterrent, particularly when the party who harmed the victim is a corporation – swayed more by civil liability than perhaps by criminal law. However, courts have denied this right to this narrow group of crime victims – interestingly a vast majority of whom are sexually exploited women and girls. Not only are they denied the right to sue, they are denied the right to sue the powerful tech businesses that make money off of their rapes.
If Congress is serious about protecting women and girls from powerful men who exploit them, it must also be serious about protecting women and girls from powerful companies that knowingly partner with people who sell them to be raped. That is a power differential that Congress must remedy.
If Congress really wants to demonstrate its commitment to protect women and girls from exploitation by those in power, it will pass a law that allows them at least their day in court. It will allow them to enjoy the right to access justice enjoyed by most other Americans…especially the powerful ones.