2/11/2012

By Lauren Britsch, J.D. Candidate

The United States is a “source, transit, and destination country for men, women, and children subjected to forced labor, debt bondage, document servitude, and sex trafficking.”[1] A dearth of statistics makes it difficult to know the scope and exact nature of the problem of human trafficking in the United States. Estimates and anecdotal evidence demonstrate, however, that the problem is widespread and affects not only foreigners but also U.S. citizens, particularly minors. The National Center for Missing and Exploited Children estimates that at least 100,000 American children are trafficked into the commercial sex industry within the United States annually. 

The centerpiece of the federal government’s anti-human trafficking efforts is the Victims of Trafficking and Violence Protection Act of 2000, better known as the TVPA. The TVPA increased the penalties for the criminal prohibition of slavery that had existed for many years, and it created the crimes of forced labor; trafficking with respect to peonage, slavery, involuntary servitude, or forced labor; sex trafficking; destroying or possessing a person’s identification documents; and benefiting financially from peonage, slavery, and trafficking.  In addition to enhancing criminal penalties for slavery crimes and creating new criminal provisions, the TVPA also provided a generous set of benefits and services for trafficking victims in the United States, including access to refugee benefits, the opportunity to remain in the country through continued presence or a T-Visa, protection from imprisonment, medical care while in custody, and confidentiality when in custody. Most states also have enacted human trafficking laws, although their breadth and depth vary, with many laws focusing only on criminal offenses.

One aspect of human trafficking the law has not been able to address successfully and which has resulted in much public attention is the use of the internet to facilitate human trafficking. In some cases of sex trafficking, pimps use the internet to advertise their victims to customers. In a recent New York Times opinion piece,Nicholas Kristof highlights this aspect of human trafficking by telling the story of a 13 year old girl who was pimped online. The advertising of minors for sex online was formerly a public relations problem for Craigslist, which took down their adult services section on September 23, 2010, due to protests over the advertising of young girls.

Backpage.com is another advertising site with an adult services section that has recently become the center of attention. Unlike Craigslist, Backpage has refused to take down its adult services section. Forty-eight attorneys general signed on to a letter to Backpage dated August 31, 2011, requesting that it follow the model of Craigslist and take down its adult services section. The letter states that the National Association of Attorneys General had tracked fifty instances of human trafficking charges related to advertising on Backpage over three years. The letter also specifically requested that Backpage substantiate its claims about its policies and efforts to prevent illegal activity.

Backpages’ response to the NAAG stressed its commitment to stand against child trafficking, defended the website against the NAAG’s accusations, and detailed some of its security measures aimed to eradicate illegal activity. Backpage’s letter also invoked the website’s right to freedom of speech under the First Amendment. In a response to Nicholas Kristof, Village Voice Media (which owns Backgpage.com) argued that Backpage often cooperates with law enforcement and that taking down its adult services advertising section will only push ads for illegal human trafficking to other sections or other sites.

The letter from Backpage to the NAAG also expressed the opinion that Backpage cannot be liable for any illegal activity that occurs on its website. Current law and judicial interpretation indicates that Backpage is probably right in this respect.  There have not been any attempts to hold websites like Backpage criminally liable for activities like human trafficking that are facilitated by their services. However, at a September 2010 House Judiciary Committee hearing on Domestic Minor Sex Trafficking, where Craigslist was a topic, a representative of the Department of Justice stated, “I am not aware of any laws that would make them liable, unless there was evidence that Craigslist was a participant specifically, whether they were, for example, conspiring with those who were misusing their site, that is, knowingly conspiring to violate the laws.”  

Liability for websites like Craigslist and Backpage has been tested in the civil context. One law that has been interpreted to protect these websites is the Communications Decency Act, passed as part of the Telecommunications Act of 1996. The Act states, in 47 U.S.C. § 230, 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.”

This section was interpreted in Dart v. Craigslist, 665 F. Supp. 2d 961 (N.D. Ill. 2009). The Cook County Sheriff filed suit against Craigslist alleging that the “erotic services” section of its website constituted a public nuisance by facilitating prostitution. The Sheriff sought to recoup the money spent by the sheriff’s department in policing Craigslist-related prostitution, compensatory and punitive damages, and an injunction requiring Craigslist to stop the complained-of conduct. Craigslist filed a motion for judgment on the pleadings arguing that        § 230 immunized Craigslist from liability for the activity on its website. The district court granted the motion. The court declined a broad interpretation of § 230 used by most courts, but still recognized that § 230 forecloses liability in appropriate circumstances. According to the court, § 230 does not generally prohibit civil liability for websites, and immunizing ISP’s who do nothing to monitor content published on their websites would be inconsistent with the statute’s purpose to encourage monitoring. Here, however, immunity was appropriate because Craigslist did not induce users to engage in illegal activity. The “adult services” section of the site could encompass legal activities, not just illegal activity like prostitution. Given those factors and especially because Craigslist warns used not to post illegal conduct, the Sheriff’s argument that Craigslist caused or induced illegal conduct failed.

Though civil liability for advertising websites in human trafficking may be foreclosed, there is still the possibility of criminal liability, but it may be unlikely. Section 230(e) of the Communications Decency Act establishes that nothing in § 230 “shall not be construed to impair the enforcement of” any federal or state criminal law. Though not yet attempted, it seems like     § 230 does not necessarily foreclose the possibility of criminal liability for websites whose services are used to commit human trafficking crimes if their conduct fell within existing criminal prohibitions.