The Telecommunications Act of 1996 (TCA) was a landmark legislation whose primary purpose was to reduce regulation and encourage “the rapid deployment of new telecommunications technologies,” including the then-fledgling Internet.

A major provision of the TCA is Title V, which is the Communications Decency Act of 1996 (CDA). The CDA was intended to strike a balance between safeguarding children from receiving and/or being featured in online pornography and preventing the stifling of cyberspace innovation by shielding website operators from liability for third-party content.

Specifically, the CDA prohibits “by means of a telecommunications device knowingly … initiat[ing] the transmission of[ ] any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication.” 47 U.S.C. §223(a)(1)(B). Section 223 of the CDA originally also barred “indecent” materials sent to children over the Internet, but that prohibition was struck down by the U.S. Supreme Court in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) as unconstitutional for violating the First Amendment. Yet the Supreme Court sustained the obscenity clause in Reno, and Congress subsequently amended §223 to reflect such as quoted herein.

When President Bill Clinton signed the TCA into law on Feb. 8, 1996, dial-up was the only means of accessing the Internet, Google didn't yet exist, Microsoft's Internet Explorer was less than a year old and there were only 40 million Internet users worldwide.

Today, there are 3.6 billion global Internet users and as the Web has flourished in the last two decades, the online marketplace for sex trafficking of children has exploded.

According to the Department of Justice, the Internet has “facilitated the sex trafficking of children by providing a convenient worldwide marketing channel” where individuals “can use websites and social media to advertise, schedule and purchase sexual encounters with minors” under the guise of escort services.

In fact, according to the National Center for Missing and Exploited Children, reports of online child sex trafficking has increased more than 800 percent from 2010 to 2015. The tragic irony of this is that it is the result in large part to the CDA.

Specifically, §230 of the CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. §230.

So how could a statute enacted to protect children from online pornography become the shield for the online sale of children for sex?

Backpage.com

Put it simply, this issue is the result of a string of legal victories by a website called Backpage.com, which has radically stretched the interpretation of §230 beyond what Congress intended.

Backpage.com provides online classified advertising throughout the United States and its “adult” section was a haven for sex trafficking ads masquerading as offerings for escort services. This is big business for Backpage, with 90 percent of its earnings at one point coming from ads posted in its “adult” section and its revenues having increased from $5.3 million in 2008 to $135 million in 2014, according to the New York Times. In reality, many of the ads posted in the adult section of Backpage.com sold children for sex, using barely coded language like “fresh” and “new to town” to indicate that the person for sale was a minor.

Sex trafficking provides a ready resource for these ads. While the exact number of sex trafficking victims in the United States is unknown, according to the Bureau of Justice Statistics' most recent study based on a three-year sample period, victims span every ethnic/racial group with approximately 40 percent being black, 25 percent white and 23 percent Hispanic, with 40 percent of the total being children. The Department of Justice has found child victims of sex trafficking “come from all backgrounds in terms of class, race and geography (i.e., urban, suburban and rural settings).”

Backpage's most recent victory is Jane Doe No. 1 v. Backpage.com, 817 F.3d 12 (1st Cir. 2016), where the First Circuit held that §230 immunity from civil liability even shielded websites that actively participated in the criminal activity of content providers.

This decision was derided by survivor advocates as “an abdication of judicial responsibility” and hailed by First Amendment proponents as a “big win for free speech online.” In one of Backpage's rare defeats, the Washington Supreme Court in J.S. v. Village Voice Media Holdings, 359 P.3d 714 (Wash. 2015) recognized that §230 could not shield the website where it had coached sex traffickers to water-down their child sex ads to evade law enforcement and, thus, did not merely passively display content.

Indeed, §230 merely intended to shield passive actors on the Internet, such as AOL at the time of the statute's enactment and Facebook and Twitter today. It unequivocally maintains liability for “content providers” as the Washington Supreme Court acknowledged.

Ultimately, Backpage.com shut down its adult section in early 2017 under the weight of U.S. Senate scrutiny, but that is a hollow victory for survivors. In the end, online sex trafficking still appears to remain prevalent, including on Backpage.com with its escort ads having reportedly migrated to its dating and massage sections.

The Battle Moves to Congress

Undeterred, survivors have moved their battle against online sex trafficking of children to Congress, where two originally competing bills were introduced in 2017.

The first legislation was in the Senate, called The Stop Enabling Sex Traffickers Act, S.1693 (SESTA) and the second was in the House, called Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865 (FOSTA).

SESTA would have amended §230 to make explicit that websites can face criminal and civil liabilities for knowingly facilitating sex trafficking, permitting sex trafficking victims to bring civil actions against websites on which they were trafficked and empower state Attorneys General to bring civil actions against websites that violate trafficking laws. SESTA enjoyed broad bipartisan support and is backed by survivor advocates, state Attorneys General and many Fortune 500 companies, in addition to other leading private-sector entities.

On the other hand, FOSTA originally did not amend §230. Instead, it doubled-down on Backpage-esque immunity. It would have shielded websites that facilitate sex trafficking from civil and criminal liability and bar state Attorneys General from bringing civil actions against websites that facilitate the sex trafficking of their state residents.

Rare for this Congress, a bipartisan compromise was reached in February 2018 and an amendment sponsored by U.S. Rep. Mimi Walters (R-CA) was added to FOSTA. The amended FOSTA includes critical language from SESTA that amends §230 to allow sex trafficking victims to pursue federal civil claims against websites that deliberately facilitate or support sex trafficking. According to Rep. Walters, “The FOSTA-SESTA legislation will significantly help prosecutors crack down on websites that promote sex trafficking, while providing much needed recourse for the thousands of men, women and children who are victims of this evil industry.” Ultimately, the House overwhelmingly passed the amended FOSTA on Feb. 27, 2018 with a 388 to 25 vote.

The amended FOSTA returns the balance Congress originally intended for the CDA and corrects the judicial error in the statute's interpretation, such as that made by the lower court in Jane Doe No. 1 v. Backpage.com, 104 F. Supp. 3d 149 (D. Mass. 2015). There, the judge stunningly concluded that “Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned.” Congress made no such choice, especially for a statute originally enacted to protect children in cyberspace.

The Future

What has happened with the CDA is a cautionary tale for addressing competing policy concerns when dealing with emerging technologies and the laws enacted to address them. We can predict such a conflict on the horizon with AI, nanotechnology and machine learning. A balance must be struck between innovation and the human cost. One should not need to yield to the other and result in anyone suffering in the shadow of the law.

Steven Cordero is a litigation attorney and a member of Sanctuary for Families' Pro Bono Council. Sanctuary for Families is a New York-based nonprofit organization dedicated exclusively to serving victims of domestic violence and sex trafficking.