Will Congress censor Reddit in the name of combatting sex trafficking online?

No one supports child sex trafficking. All major technology companies, in some way, are trying to fight this heinous crime. Right now, the Senate is debating a measure that would weaken laws protecting online free speech and the current robust online economy, while doing little to help the fight against child sex traffickers.

The law protecting free speech and the online economy is called Section 230 of the Communications Decency Act. This law prevents people from suing “interactive computer services,” such as Reddit, Facebook, Amazon, Yelp and others for content that users create. The law also prevents states from charging these companies with crimes under state law. Congress passed Section 230 to provide legal protection to online companies making good-faith efforts to block, or filter, obscene content.

Section 230 does not bar prosecution of federal crimes. To the extent that interactive computer services have reason to know child predators use their sites and are doing nothing, or worse are assisting or abetting these child predators, the federal government led by the Department of Justice can investigate and prosecute. An exception to the law is not necessary where most of the exception already exists.

{mosads}Because of various immunities offered to computer services, there are some complaints that Section 230 interferes with efforts to curb child sex trafficking. This is simply not true. Because legislators in the mid-1990s designed the law to incentivize companies to protect children, they wrote into the law the tools necessary to prosecute those who would take advantage of children.

There are two different approaches interactive computer services take regarding “user generated content.” The first is that employed by Reddit, Facebook, Twitter, Amazon, Yelp and others. They permit users to post opinions, reviews, photographs, and so on, with minimal interference. In these cases, the sites are conduits for the speech of their users.

The second approach occurs when sites actively edit “user” content. A number of news sites operate in this mold, including the site at the center of the “Stop Enabling Sex Traffickers Act,” called Backpage. Backpage, in turn, is in trouble because its founders allegedly coached users on how to create listings to avoid law enforcement investigation, edited posts, and otherwise knew their site was being used to help child sex traffickers. When a computer service starts editing content, or advising users on how to avoid language indicative of criminal behavior, it likely loses its Section 230 immunity, as it is no longer a pure “interactive computer service.”

Many of the court cases addressing Section 230 discuss this distinction. There have been a few instances in which a service has lost its immunity because it was either under a duty to warn users or significantly altered content, but most court cases brought by victims or private citizens against interactive computer services have been dismissed because of Section 230.

There is one theory, though, that has not yet been tested: Section 230 provides that “nothing in this [law] shall be construed to impair the enforcement of … chapter … 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.” Translated to English, that means, to the extent interactive computer services may violate either laws prohibiting the sexual exploitation of children or other Federal criminal laws, they are not immune from investigation or prosecution.

Chapter 110 of Title 18, in turn, has numerous prohibitions against the sexual exploitation of children. The prohibitions include everything from the possession and production of child pornography to child sex trafficking. Chapter 110 also requires service providers to report actual knowledge of child sexual exploitation.

Since Section 230’s enactment, there are no cases testing the extent to which interactive computer services may be subject to criminal investigations. The closest case is from Mississippi, where a federal court determined Section 230 prevents the state’s attorney general from broadly subpoenaing Google for vague violations of state criminal and consumer protection laws. This, though, raises an important question. Why has the DOJ not yet prosecuted an interactive computer service that has been caught violating federal law, regardless of whether the service acted as a mere conduit or actively edited content?

The legislative process takes time—time children victimized through the sex trade do not have. No one wants to delay law enforcement investigation and prosecution of those responsible for such heinous crimes. Such crimes should be investigated immediately, using tools that exist today. Thus, the question is not whether new tools are needed, but why the Department of Justice has not used all the tools at its disposal.

Jonathon Paul Hauenschild, J.D., is the director of the Task Force on Communications and Technology at the American Legislative Exchange Council, a nonprofit aimed at promoting limited government.

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