U.S. House Approves Law Targeting Sex Trafficking Ads, Threatens to Undermine Section 230 of the Communications Decency Act

by Davis Wright Tremaine LLP

On May 20, 2014, the U.S. House of Representatives passed the Stop Advertising Victims of Exploitation Act of 2014 (“SAVE Act”). If enacted, the bill would expose websites and other media to federal criminal penalties for publishing ads for sex trafficking. But the bill could have unintended consequences and chill free speech on the Internet.

The SAVE Act would amend 18 U.S.C. § 1591, which imposes a minimum 10-year sentence on anyone who “recruits, entices, harbors, transports, provides, obtains, or maintains” any person, knowing or in reckless disregard of the fact that either (1) force, fraud, or coercion will be used to cause someone to engage in a commercial sex act, or (2) any means will be used to cause a minor to engage in such an act. The law also makes it a crime to knowingly benefit financially from participating in a venture for such trafficking. The SAVE Act would add “advertises” to the list of predicate acts and impose the same criminal penalties on websites and other media as on the participant in the underlying sex trafficking crime.

By its terms, the SAVE Act would apply to persons who knowingly advertise the prohibited sex trafficking acts, but does not define “knowingly” or “advertises.” The Chairman of the House Judiciary Committee, Rep. Bob Goodlatte (R-VA), stated that the bill would require the government to prove websites or other publishers “knew the advertisement involved a minor or a coerced adult.” But Section 1591 already criminalizes such knowing participation in sex trafficking. Other representatives who support the SAVE Act suggested the bill would allow prosecutors to bring charges against websites that host unlawful third-party content, singling out in their criticism Backpage.com and Google.

Free speech and Internet industry groups, including the ACLU and Center for Democracy and Technology, have warned the SAVE Act could have “unintended consequences for free speech online.” See www.aclu.org/blog/free-speech/anti-backpagecom-bill-will-shut-down-free-speech; see also www.cdt.org/blog/save-act-endangers-online-content-platforms/. They note the bill will allow prosecutors or anyone else who dislikes content to complain and force the content to be taken down, because online providers faced with potential criminal liability will simply censor speech, whether it is lawful or not. These groups also say the SAVE Act will give online providers incentives not to monitor for unlawful content to avoid accusations they “knowingly” violated the law. Likewise, websites that cooperate with law enforcement and report third-party posts that may involve sex trafficking could be less likely to do so. And, because the bill’s terms are vague, it could apply to many online providers, including Facebook, Craigslist, and Twitter, as well as to other media, such as print publishers.

If enacted, the SAVE Act would undercut the protections of Section 230 of the Communications Decency Act, 47 U.S.C. § 230, another federal statute that immunizes all online providers for claims premised on content provided by third parties. Section 230 has been widely recognized as a boon to the growth of the Internet in the U.S., but it preempts only state law and does not override federal criminal law, an exception the SAVE Act aims to broaden.

The SAVE Act, as passed by the House, has not been introduced in the Senate. Sen. Mark Kirk (R-IL), previously proposed a different bill in the Senate, also called the SAVE Act, http://www.kirk.senate.gov/?p=press_release&id=1021, although he has not introduced that bill.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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