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"The Hill" features Law Professor Audrey Rogers in an opinion piece "Misinformation campaign is at the center of opposition to common sense sex trafficking legislation"

03/20/2018

"The Hill" features Law Professor Audrey Rogers in an opinion piece "Misinformation campaign is at the center of opposition to common sense sex trafficking legislation"

BY MARY GRAW LEARY, DONNA M. HUGHES, SHEA RHODES, AUDREY ROGERS AND PENNY VENETIS, OPINION CONTRIBUTORS

Audrey Rogers is a criminal law and computer crimes professor at Pace University, Elisabeth Haub School of Law, who has written extensively on digital exploitation.

To close an unconscionable loophole created by the courts in lawsuits brought by children sold online for sex, the House of Representatives passed sensible, narrowly tailored legislation. This bill clarifies that websites, such as Backpage.com, that knowingly partner with sex traffickers and sell sex trafficking victims online, can be sued for damages and held accountable under state anti-trafficking criminal laws. The House voted overwhelmingly (388-25) to support Rep. Ann Wagner’s (R-Mo.) bipartisan Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA-SESTA”).  This week, this legislation reached the floor of the Senate.  Sens. Rob Portman’s (R-Ohio) and Richard Blumenthal’s (D-Conn.) Stop Enabling Sex Traffickers Act (“SESTA”), which is now joined with FOSTA, has bipartisan support with 67 co-sponsors from both parties.  Some in the tech world want to kill this bill by flooding the airwaves with misinformation. Their arguments make no sense.

One recent study found that 70 percent of child sex trafficking victims surveyed were sold online.  The Attorney General of California testified before the Senate that nearly every sex trafficking case his office handles involves online advertising.  For the last decade, whenever a victim who had been sold online tried to sue, or a state attorney general tried to enforce his own state’s anti-trafficking laws, websites such as Backpage.com have successfully fought them in court.  Backpage.com got their suits dismissed by arguing that a 1996 law (Section 230 of the Communications Decency Act) grants them immunity to engage in this business.

Who can oppose such common sense legislation to close this unintended loophole? Well, sex traffickers who profit from such sales of human beings can.  The ILO estimates that forced sexual exploitation generates approximately $99 billion a year in profit.  Then there are the internet companies that, unlike brick and mortar companies, have enjoyed total immunity while making money from this loophole. A Senate investigation into Backpage.com found that approximately 93 percent of its revenue  (estimated at $150 million in 2016) comes from “adult services” ads.  Other websites are seeing the high profit and no risk opportunity from ads that sell people online and they are not hesitating to join in behind this legal protection.

These tech company advocates, serving as Backpage.com's  surrogates, are engaging in a campaign of misinformation. Their arguments are legally deficient. First, they claim that FOSTA-SESTA violates free speech.  Selling victims of sex trafficking is not speech.  It is a criminal action in every state and under federal law. Furthermore, the Supreme Court has been quite clear, “[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection.” Next, they argue that this sensible and much needed law will “kill the Internet.”  Legal scholars, pro-technology and Internet advocates, as well as major tech companies have refuted this claim.  For example, Oracle stated that SESTA “does not, as suggested by the bill’s opponents, usher the end of the Internet. If enacted, it will establish some measure of accountability for those that cynically sell advertising but are unprepared to help curtail sex trafficking,” and“[f]rankly, we are stunned you must even have this debate.” Even the Internet Association supports SESTA.

Read the full article.