(Bloomberg) — Google and Facebook Inc. are among companies opposing a Senate bill aimed at squelching online trafficking of children, a stance that makes the Silicon Valley giants uneasy allies of a website accused of providing an advertising platform for teen prostitution.
The companies and tech trade groups say online providers will face greater liability for speech and videos posted by users if U.S. lawmakers move against Backpage.com and its online classified ads. Bill supporters disagree, saying the measure creates a narrow exception to deter lawbreakers and won’t harm the internet.
“There’s clearly a problem” as victims of sex trafficking advertised on Backpage repeatedly lose before judges who cite the federal immunity, said Yiota Souras, general counsel for the National Center for Missing & Exploited Children, a non-profit group. “Time and again victims are getting kicked out of court, even though there’s trafficking going on.”
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The tech companies say they agree with the purpose of the law, but fear the unintended consequences. They want to preserve immunity they won from Congress two decades ago, after the brokerage dramatized in the film “The Wolf of Wall Street” sued an online service over critical comments posted on message boards.
Now at least 28 U.S. senators have signed onto the effort to retract some of that protection granted during the dawn of the commercial internet. A hearing on the bill is scheduled for Sept. 19; in recent days Oracle Corp. and 21st Century Fox Inc. have endorsed the measure.
The Internet Association, a Washington-based group with members including Alphabet Inc.’s Google, Facebook, Twitter Inc. and Snap Inc., said in an email that sex-trafficking is abhorrent and illegal. But, the group wrote, the bill is “overly broad” and “would create a new wave of frivolous and unpredictable actions against legitimate companies rather than addressing underlying criminal behavior.”
Google, asked for its position on the bill, referred to a blog post by its vice president of public policy, former U.S. Representative Susan Molinari. “While we agree with the intentions of the bill, we are concerned” the measure would hinder the fight against sex trafficking. Smaller web sites anxious to avoid liability for knowingly aiding sex traffickers might stop looking for and blocking such content, Molinari said.
“We — and many others — stand ready to work with Congress on changes to the bill, and on other legislation and measures to fight human trafficking and protect and support victims and survivors,” she wrote.
Nu Wexler, a Facebook spokesman, declined to comment.
At issue is the nine-lives existence of Backpage.com, called “the leading online marketplace for commercial sex” by a Senate investigative subcommittee. The website, with a look similar to the popular Craigslist classified site, contains listings that offer services localized by city, according to the report.
An adult category was pulled from the site as legislative scrutiny intensified, Senator Claire McCaskill, a Missouri Democrat, said at a January hearing. She asked whether the cessation marked the end “to Backpage’s role in online sex trafficking of children, or just a cheap publicity stunt.”
Backpage accepted ads that contained words such as “lolita,” “teen,” “innocent” and “school girl,” and before publishing stripped them of the terms to conceal that they indicated child sex trafficking, according to the Senate report. Still, ads find ways to indicate a child is being sold, for instance listing a “sweet young cheerleader” and a“new hottie” with “very low mileage,” according to a 2016 filing at the U.S. Supreme Court asking justices to hear a victim’s case against Backpage. The court denied a hearing.
The Dallas-based site, once part of the Village Voice Media group, has repeatedly fended off attempts by prosecutors and trafficking victims to shut it down, successfully arguing that the immunity conferred by Congress protects its activities. Still, legal scrutiny is a constant. A federal prosecutor in Arizona is conducting a grand jury investigation and indictments may result, Backpage told a Washington state court in a February filing.
Liz McDougall, general counsel for Backpage, didn’t supply a comment.
In one recent case, a California judge threw out charges of pimping, saying federal law shielding websites “even applies to those alleged to support the exploitation of others by human trafficking.”
The California judge cited another recent case, in which the same part of federal law was found to protect Facebook from lawsuits brought by terror victims who claimed the social media giant helped groups in the Middle East, such as Hamas, by giving them a platform to air their incendiary views.
The language at issue is part of the Communications Decency Act, passed by Congress in 1996. A portion of that law, Section 230, provides immunity to internet sites that publish content provided by another person or entity.
Lawmakers were spurred to action after website provider Prodigy Services Inc. lost a $200 million judgment in a lawsuit brought by Stratton Oakmont Inc. over online messages, including one that called the brokerage a “cult of brokers who either lie for a living or get fired.” Regulators eventually shut Stratton, and the exploits of its founder Jordan Belfort, which included cocaine use, cavorting with prostitutes and lying to customers, were retold in the 2013 movie “The Wolf of Wall Street.”
Congress in a legislative report said it was including Section 230 “to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own.”
Since then judges have interpreted the statute broadly, and tech companies have come to depend upon it.
Now senators including Rob Portman, an Ohio Republican, and Democrats McCaskill and Richard Blumenthal want to narrow it. Their bill introduced Aug. 1 would eliminate federal liability protections for websites that assist, support, or facilitate violations of sex trafficking laws, and let state officials take actions against businesses that violate those laws.
Current law “was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us,” Portman said in a news release. He called the changes “narrowly crafted.”
Silicon Valley has been fighting the measure since before it was introduced. In a Nov. 14 letter to then-President-elect Donald Trump, the Internet Association trade group listed policy priorities including upholding Section 230, calling it “indispensable for the continued investment and growth in user-generated content platforms.”
In meetings over the summer with congressional staff, representatives of Google and Facebook argued against the bill and promised to oppose it, according to two people familiar with the gatherings who asked not to be identified because the meetings weren’t public. The companies declined an invitation to testify, said one of the people.
Bill opponents include the tech groups Center for Democracy & Technology, the Electronic Frontier Foundation and the rights group American Civil Liberties Union, which all signed an Aug. 4 letter to Senate leaders calling Section 230 as important as the First Amendment in supporting free speech online.
Matt Schruers, a vice president for law and policy at the Computer & Communications Industry Association, a trade group with Google and Facebook as members, said Section 230 in bumper-sticker terms amounts to, “Don’t Shoot the Messenger.” Undermining the provision could could chill online activities, he said.
‘You’ll see people exiting the market,” Schruers said in an interview. “You’ll see only the largest companies willing taking the risk.”
Schruers’s group was among 10 tech trade associations that warned in an Aug. 2 letter to senators that the bill would severely undermine Section 230, creating “a devastating impact on legitimate online services” by “allowing opportunistic trial lawyers to bring a deluge of frivolous litigation.”
“It’s not even a major change in the law,” said Mary Leary, a law professor at Catholic University in Washington, D.C. “It’s just a clarification.”