Online Human Trafficking, Privacy, and 1st Amendment Concerns

Human trafficking is an age old problem spanning millennia. In this millennium, it is a problem which has found its way into a new venue – the internet. In the internet, human traffickers have found a means through which they may market their product while disguising themselves from authorities and law enforcement. While there are many ways through which this may be done, with varying levels of success, one way that has been used successfully is the use of advertisements on the Deep Web. [1] 90% of the Deep Web does not appear to be indexed by search engines with which we are familiar – think Google, Bing, and Yahoo – and so are largely unknown spaces to most Internet users. [2] In this information vacuum could potentially be found any number of things or any amount of information that could be used in the fight against things like child pornography, money laundering, drug trafficking, and, the focus of this piece, human trafficking.

The Defense Advanced Research Projects Agency is a branch of the Department of Defense tasked with developing emerging technology for the U.S. military has stepped into the human trafficking sphere ever so lightly by developing a search engine that is capable of searching the internet for information concerning human trafficking that could lead to successful future prosecutions [3][4] The program that it has designed is known as “Memex”. [5] Think of Memex not just as a search engine, which reacts to the keywords entered by a user, but rather as a program finds information and returns it to the user AND also shows the user assorted patterns in data and stored information, relationships between different pieces of information and data (such as an e-mail address and all sex advertisements accessed by the holder of that e-mail address), and shows the user the places where the largest concentrations of specific kinds of information (such as where sex advertisements are being posted most frequently) [6]

The ramifications of widespread use of this technology seem clear – the technology could prove an excellent tool in the extermination of human trafficking through the Deep Web, it could also leave privacy rights activists a little queasy about the prospect of government having yet another means through which to monitor the activity of Internet users globally and domestically. One offshoot from the Memex program has taken place at Carnegie-Mellon University where a program called “Traffic Jam” has been created. [7] Researches at Carnegie-Mellon have even begun to research ways that the program could identify corresponding images in different pictures that could allow law enforcement to link different pictures to the same hotel room or other location in order to assist in the fight against human trafficking. [8]

While Memex is not yet being released for use by all of law enforcement or other organizations, it has been released to specific organizations for test use with varying levels of success (up to and including actual convictions). [9] In the meantime, the creators of Memex are attempting to test the program at increasing levels each quarter while simultaneously attempting to avoid any potential legal pitfalls regarding government surveillance. [10] The questions raised by the creation of the program are many but here are a couple worthy of classroom discussion:

  1. What constitutional/legal problems, if any, do you believe that the use of Memex could encounter?
  2. Does the fact that, allegedly, thus far only information available to the public has been used by the Memex program to find potential human traffickers in test runs give you peace of mind concerning how that information can then be used to map out the activity of users suspected of criminal activity?
  3. Do you believe that a user accessing a sex advertisement multiple times should constitute probable cause? How about 100 different advertisements? 1 advertisement?

 

Another avenue through which human traffickers have found success is the use of standard online advertisement sites such as Craigslist and Backpage.com – with some estimates showing that Backpage.com has held as many as 70%-80% of all American prostitution advertising at some points in time. [11] While Backpage.com is the current focus of a great deal of the anti-human trafficking crowd’s ire, Craigslist was once public enemy number one in this regard. After a great deal of public outcry, the Sheriff of Cook County, Illinois (Thomas Dart) filed suit against Craigslist alleging that users routinely used the erotic services section of Craigslist in the Chicago area openly offering money in exchange for sex and claimed this to be a public nuisance as well as the facilitation of prostitution.[12] The sheriff hoped to recover the funds his department spent policing Craigslist-related prostitution, as well as both compensatory and punitive damages. [13] The end result of this action was a victory for Craigslist in the courtroom but the larger result of note is that Craigslist shut down its “erotic” services page shortly thereafter.[14] [15]

Many of the arguments put forth by Craigslist in its case against Thomas Dart have now been used by Carl Ferrer and Backpage.com in a series of legal actions in the states of Tennessee, Washington, and New Jersey (what an odd set of bedfellows) as well as a subpoena from a U.S. Senate committee regarding Backpage.com’s practices  [16][17] Principal among these are that he is protected by the First Amendment, that he cannot be held accountable for the posts of third parties on Backpage.com, and that, according to the Communications Decency Act, he cannot be liable for posts by third parties on Backpage.com. [18]

Each of these arguments contains differing legitimate concerns for law enforcement, the general public, and First Amendment jurisprudence. First, Ferrer’s attorneys have argued that “The First Amendment bars the prosecution because imposing an obligation on publishers to review all speech to ensure that none is unlawful would severely chill free expression”. [19] The language used by his attorneys tracks that in Ashcroft v. ACLU but also, more importantly, in Backpage.com, LLC v. Cooper – one of the cases that Backpage.com has already won in which it prevented the State of Tennessee from enforcing a new law that would have criminalized Backpage.com’s role as the alleged intermediary between traffickers and customers. [20] The argument presented really strikes at two potential issues – forcing Backpage.com to review every single listing before it is published and the impact that would have on free speech. In other words, Backpage.com is arguing that it should not be forced to review every listing as that would be both unfeasible and unfair to Backpage.com since it is not creating the contents of the posts. [21] Additionally, doing so would chill free speech by not clearly stating what speech would be illegal and which would not and also by stalling listings as long as necessary for them to be reviewed. [22]

Intertwined with the last main argument presented by Backpage.com regarding the Communications Decency Act, is the second argument presented by Backpage.com – that it is not responsible for the posts of third parties on its site. This is because the federal Communications Decency Act, inter alia, mandates 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.”[23] If that isn’t bad enough already for law enforcement and states trying to cut into human trafficking, the law also states that “…no liability may be imposed under any State or local law that is inconsistent with this section.”[23]

This means that the Communications Decency Act, in layman’s terms, states that Backpage.com cannot be treated as the publisher of information on its site provided by another individual and that no state or locality can do anything contrary to this notion. Regardless of any individual’s personal views on human trafficking, the First Amendment, and so forth, the law is clearly stated, and three separate cases in the area involving Backpage.com have all demonstrated, that the pre-emption line of attack is very strong. [24]

There are, however, a couple ways around this. One is completely hopeful, and a hope I have personally embraced: amendment of the Communications Decency Act to confront the reality of online human trafficking and passage of a corresponding federal criminal statute directly related to online human trafficking. This would focus federal attention and resources in on human trafficking while allowing states to attack the problem as they see fit within themselves (as well as allowing for the full litigation of issues regarding what language gives the public proper notice of what conduct is illegal and which is not, experimentation in different states of different enforcement models, what terminology is not overly broad nor too vague, etc.)

Another is an avenue through which only federal prosecutors could operate: the CDA expressly states that the law is not intended to compromise the ability of the federal government to enforce federal criminal law. [25] Given the proper test case and thorough litigation, this language could be a useful tool for federal prosecutors moving forward should a federal statute clearly and constitutionally criminalize online human trafficking, but would be unlikely to help states and localities combat online human trafficking as the CDA would still preclude them from passing laws contrary to the spirit of the CDA.

Among all this is the crucial backdrop that all content-based restrictions on free speech are, of course, subject to strict scrutiny by the judiciary – which means that, generally, when Backpage.com challenges the enforcement of a new statute anywhere in the country – it will be with the benefit of strict scrutiny analysis of its allegations. [26] What is clear is that current efforts to curb human trafficking are simply not effective enough as some estimates concerning the number of individuals currently being trafficked range into the several millions, hundreds of thousands in the U.S. alone, the majority of whom have been sold online at least once. [27] Yet, we should always be careful not to restrict speech without great care, just cause, and clear articulation of exactly what speech is illegal.

 

  1. What do you make of each of Ferrer’s three main arguments? (Generally speaking that is, the strength of these arguments do of course vary based on circumstances – such as whether Ferrer is being subpoenaed or if Backpage.com is fighting a new statute)
  2. How would you approach the problem of curbing online human trafficking if you were a member of Congress while also not running afoul of First Amendment concerns?
  3. Should Ferrer be held liable for the posts of other individuals even if a means through which to prosecute him can be found given he is not the producer of the posts? Why or why not?

 

[1]-[2] https://www.scientificamerican.com/article/human-traffickers-caught-on-hidden-internet/

[2] https://www.scientificamerican.com/article/human-traffickers-caught-on-hidden-internet/

[3] https://www.darpa.mil

[4]-[10] https://www.scientificamerican.com/article/human-traffickers-caught-on-hidden-internet/

[11], [15], [17] http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2826&context=lawreview

[12]-[14] Dart v. Craigslist, Inc., 665 F.Supp.2d 961 (N.D. Ill. 2009)

[16], [18]-[19] http://arstechnica.com/tech-policy/2016/10/backpage-com-ceo-fights-pimping-charges-says-1st-amendment-protects-him/

[20]-[22] Backpage.com, LLC v. Cooper

[23] 47 U.S.C. § 230(c)(1) (2012)

[24] Backpage.com, LLC v. Cooper, Backpage.com, LLC v. McKenna, Backpage.com, LLC v. Hoffman

[25] 47 U.S.C. § 230(e)(1) (2012)

[26] United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 818, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).

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~ by paulwmcbride on November 14, 2016.

11 Responses to “Online Human Trafficking, Privacy, and 1st Amendment Concerns”

  1. Human trafficking is a worldwide problem, with approximately 20 million people affected by it. And I agree with President Obama that we need to call it by what it really is: modern slavery. [1]. Such a drastic impact requires drastic measurements to deter the crime. MEMEX seems to aid the government successfully. MEMEX mines the internet for data that is hidden from search engines such as google. While reading the articles and the main blog, I was comparing it to my topic, where the FBI was hacking users’ IP addresses. In that scenario, the users were actively trying to hide their digital footprint to avoid detection. [2]. In the issue involving sex ads, the people posting them want to be located by other people to make a profit. Those people are gambling with the chance that the person who responds to such ads is a law enforcement officers and not a potential customer. Additionally, they are posting on pages such as Craigslist and Backpage that can be accessed even without using the dark web. I am having a difficult time seeing potential privacy violation here. We should not allow people to accuse the government of privacy violation simply because the outcome of their action was not what they were hoping for. Our society is moving to a digital world and we should expect that law enforcement is doing the same. Just because you post something of the privacy of your home does not imply that such privacy is maintained once the post is public. Also, if the advertisement implies or explicitly states that the person is offering sex for money, the probable cause element is met. However, if the advertisement is simply for pornographic material or if the law enforcements are relying on evidence of a person watching porn online, the government is overstepping its boundaries. Obscene material is protected by your right to freedom of speech. While the porn industry is a big contributor of human trafficking, there is a huge different in a user looking at porn online and a person trying to engage in human trafficking and trying to pay for sex.

    This leads me to the next issue addressed in the main blog: Backpage.com Backpage argues that if the government is holding them liable for the third parties’ ads, they are infringing on their freedom of speech. I do not agree with the Tennessee ruling nor with the language of the Communication Decency Act. If a person creates a platform that enables human traffickers and handlers to advertise sex for money, that person should be held liable for assisting in human trafficking. Here, we are not talking about isolated instance where third parties were masking their post, Backpage hosted approximately 80% of the US sex worker industry. This is not mere negligence oversight but Backpage was intentionally allowing such post and profiting from them. Furthermore, Backpage was not just sitting back and watching third parties’ post, the administrators were editing the posts. According to the Senate investigation, the administrators edited them in order to cover up the illegal act that was advertised. They could have simply deleted such post but they decided to actively aid in advertising prostitution. We should not allow Backpage to indulge in that practice and now complain about First Amendment Violation. The administrators clearly did far more than simply hosting a platform that enables third parties to advertise sex workers.

    Additionally, the government is not only implementing methods such as Memex to locate and prosecute criminals, it is also using the site to locate victims and rescue them. [4] We have a public policy interest in helping victims to escape the horror they are living in.

    [1] http://www.usnews.com/news/articles/2012/11/16/report-phones-become-the-frontline-of-human-sex-trafficking

    [2] Manhattan http://manhattanda.org/press-release/manhattan-district-attorney%E2%80%99s-office-applies-innovative-technology-scan-%E2%80%9Cdark-web%E2%80%9D-fig

    [3] http://arstechnica.com/tech-policy/2016/09/backpage-com-sex-ad-subpoena-fight-ends-supreme-court-sides-with-senate/

    [4] http://www.ct.gov/dcf/lib/dcf/humantrafficking/reports/HTR3_-_Info_Sheet_-_Social_Media_and_Internet.pdf

  2. I do think Memex being used to prevent or put a stop to serious crimes such as human trafficking would be reassuring to most of us by showing that there is something we can do to fight the issue. Although using this technology may be proactive in detecting human trafficking, it raises serious privacy concerns. Allowing the government to have that much access to information may result in over suspicion of innocent parties. However, I think if there is a way for the government to extract the necessary information for their investigation without abusing their access to private data, it is worth considering. This is a tough issue to balance because, on one hand, you want to protect individual privacy rights but on the other, if you do not have anything significant to hide, then why not let the government use the technology to combat these tragic crimes.

    As far as Ferrer’s arguments with liability for third party posts on backpage.com, I think the First Amendment argument is the strongest. I see where it may seem unreasonable for a website host to review all posts before the posts are published and you can argue it is a limitation on the third parties’ free speech. However, I feel with websites like backpage.com, which are known for listings involving criminal activity, there should be an exception made. Although the individual users are the people posting what they want, it is still not directly coming from the individual user when it is published. The users listing is being expressed and posted through backpage.com. No one is stopping the individual from creating their own listing such as through their own website or another form of communication. Therefore, I think this distinction should permit and impose a duty to web providers to monitor and restrict the content they allow to be published on their websites in order to protect themselves from liability.

    As far as the Communications Decency Act which states a web host cannot be held liable for posts from third parties. I think the act is currently flawed and I agree with the blog post which states it should be amended. I think the Act should have some protections afforded to responsible web hosts and maybe provide guidelines to ensure web hosts are taking proper measures to ensure they are not serving as a facilitator or intermediary for criminal activity. However, I think legislation focusing on the realities of online human trafficking and other online sex crimes needs to be addressed. I think a website where it is generally known for listings which promote criminal activity should not be given a pass on liability just because they let “third parties” post the material.

  3. An argument against Memex could be invasion of privacy. People searching the web on their computer from the comfort of their home do not expect anyone to “spy” on them. The same argument used for the darknet, where users have a higher expectation of privacy should be applied here. On the flip side, Memex seems to be a great (and the only) tool used to prosecute sex traffickers. [1].

    I appreciate that the creators of Memex are testing the program in increments. Rather than releasing the program all at once and dealing with the legal problems retroactively, it seems that the creators are trying to avoid any legal problems they may encounter in releasing the program, not just with the government but with the public as a whole. Something does have to be done about the criminal activity of users. If the user is merely suspected of criminal activity, but none is found, it may be a conflict to keep such information of the user on file.

    There should be a bar set by a certain agency as to how many advertisements would constitute probable cause. A user who clicks on 1 advertisement may have done so mistakenly or out of curiosity. Setting the bar as to how many times a user clicks on an advertisement too low could be catastrophic and invade rights that the government should not touch. I would suggest that having a bar of 10-15 advertisements accessed, whether it be of the same or different advertisement, would be a good bar for government authority to start looking into the activity of the user given probable cause.

    Ferrer’s first argument is that he is protected by the First Amendment. As Paul stated in his blog, Ferrer’s attorneys argued that imposing an obligation on editors to review speech on their website would chill free expression. However, given sites such as Backpage.com and Craigslist.com (which were the two sites the blog focused on) an editor does not have to dig deep into the content published to see whether or not there is illegal activity taking place. For sites that are known to be intermediaries it would be common knowledge that posts would lean towards being illegal. In regards to other websites, it may be a little bit more difficult.

    Ferrer’s second argument of not being held accountable for posts of third parties is difficult to get around. For an editor who runs a small page or blog it is infinitely easier to review all of the posts third parties contribute to the site; however, when there is a site that is as big as Craigslist, such illegal activity is more difficult to track down and would be too time consuming. This argument also plays into Ferrer’s third argument of being unable to be liable for posts by third parties. At the onset, it is hard to hold an editor liable for posts made as it may be impossible to review posted material right away. However, after a certain amount of time, an editor should be able review the material on his or her site and get an idea of what kind of activity is present.

    [1] http://manhattanda.org/press-release/manhattan-district-attorney%E2%80%99s-office-applies-innovative-technology-scan-%E2%80%9Cdark-web%E2%80%9D-fig

  4. The use of Memex definitely skirts the line of invasion of privacy. The fact that only public information has been used does ease the fright of invasion of privacy. The whole Memex concept is really interesting to me because at this point, the traffickers are found by leaving their own technological footprint. I could see this type of technology being misused if it were not monitored or if it were shared with companies outside of the government. Something about the whole concept of Memex reminds me of NSA. It is akin to the government following our actions and waiting for something to happen that they can act on. However, I don’t believe that people should have a reasonable expectation of privacy if they are searching for illegal sex advertisements. It appears that there is not a law in place yet, but I would say that accessing one advertisement should constitute probable cause. There does not need to be a pattern of conduct to prove that criminal activity is afoot. If someone is caught stealing property once, he or she does not get a free pass. If you stole something, there is probable cause to investigate. There is no requirement of multiple accusations of stealing before probable cause exists. Human trafficking is much more egregious than stealing, so human trafficking crimes should not be given any leniency.

    Ferrer’s arguments, as much as I hate to say it, are somewhat strong. It would be very difficult to find a way to prosecute Ferrer if he is not the producer of the posts. The Communications Decency Act is very clear that websites are not liable for the posts made by third-parties. If a loophole is found to prosecute Ferrer, then that opens the door for prosecutions of many websites. The only way around prosecuting Ferrer that I could see is if there is a policy in place that requires Ferrer to remove posts if a complaint is made. If he then ignores the problem, he should be liable because he has been made aware of the issue and chose to overlook it. I think the best way to attack Backpage.com to curb online human trafficking is to require Ferrer to follow some sort of policy that is reactive. For example, if someone reports a post, for any reason, then he must take proper steps to ensure that the posts are decent and that no criminal activity is going on. It would be impossible to demand that Ferrer be proactive by examining and approving each post before it is published to the webpage. That sort of task is insurmountable. But, there must be a middle ground that can hold him to the fire if he is running a website that is involved in risky business.

  5. Memex appears to be an exciting new tool for law enforcement and prosecutors to gather evidence and cooberate witness testimony. Though still in its infancy, Memex has already played an important role in putting away violent sex traffickers such as Benjamon Gaston, [1] who organized multiple gang rapes of a trafficking victim for profit [2].

    As with any new technology that expands our ability to discover private information, there is a concern that it will be used to inappropriately gather information without a warrant. Being that many things are innocently interconnected online, there may also be evidentiary concerns with proving exactly how Memex’s network actually shows a true pattern of sex trafficking and not merely happenstance.

    As best as I understand, Memex works by scouring the dark net for data inputs such as phone numbers, pictures, and names. [3]. Memex then sets about identifying patterns within the totality of the data inputs. [4]. For example, if an advertisement lists a burner phone number, and this number appears alongside a specific name, the program will attempt to correlate the combination of these two data inputs with other data inputs and combinations of data inputs. The result is to create a set of many correlated relationships that are then projected into a network system that separates data inputs and combinations (verticies) by different levels, based on their degree of correlation. Calculations can then be made based on the number of vertices and the number of separations between vertices (edges). In the aggregate, the central verticies (the most correlated data inputs or combinations) will reveal concentrations of facts suggesting sex trafficking or other crimes, similar to a word cloud. As more information is gathered, the network of nodes trends towards maximum connectivity and certainty can begin to be measured by some form of alpha index. Once a network is compiled, this information can then be taken to additional levels of analysis, such as whether there is a geographical component or ties to Islamic terrorist websites, both of which could reveal crucial details about the type of criminal organization at play.

    Though this is a useful tool, I am afraid that it may create a false sense of certainty in some cases. Basic logic tells us correlation is not causation. Imagine a room full of pictures with yarn strung between them. This is the kind of deductive process that Sherlok Holmes might have found useful, but it can be extremely flawed when the connections are many but of very small consequence. These flaws might give authorities what they incorrectly believe is probable cause to investigate further, or sway a judge to issue a warrant. It might also be overly convincing to juries. These are reasons why I am not entirely sold on Memex, despite it using publicly available information. These concerns are only magnified by projections of what computing power (and thus ability to find connections) will be available in the near future and by what data may be added to the network. Certainly, meta data from burner phones, a popular tool of the trade, [5] would fill in a lot of gaps.

    As to Ferrer’s arguments, I believe there is some merit to his point that sites should not have to thoroughly police their sites to protect themselves. However, there is a difference between overlooking illegal activity and turning a blind eye entirely. I believe Section 230 should be amended to remove indemnification in cases of willful blindness. In agreement with the author, I believe the case for amendment is strengthened further if the willful blindness applies in the narrow case of human trafficking. Otherwise, sites will continue to profit from obviously illegal activity while hiding behind the First Amendment. An analogy could be made to a motel owner who turns a blind eye to prostitution and rents rooms by the hour. It is obvious that prostitution is ongoing and that they are not only ignoring it but facilitating the process. Thus, I have no problem with at least requiring data from sties that blatantly ignore the red flags of human trafficking. [6]

    Given the large use of social media in human trafficking, [7] I believe much could be done to fix the problem through reasonable regulations aimed at requiring greater participation from major social networks. Facebook and similar sites should do more to warn users of the dangers present on their network. Positive change could be as simple as a PSA campaign to inform users on what to look out for to avoid ending up in a sex trafficking ring.

    [1] http://manhattanda.org/press-release/manhattan-district-attorney%E2%80%99s-office-applies-innovative-technology-scan-%E2%80%9Cdark-web%E2%80%9D-fig
    [2] http://manhattanda.org/press-release/da-vance-sex-trafficker-benjamin-gaston-sentenced-50-years-life-state-prison
    [3] See http://www.cbsnews.com/news/darpa-dan-kaufman-internet-security-60-minutes/.
    [4] See id.
    [5] http://www.usnews.com/news/articles/2012/11/16/report-phones-become-the-frontline-of-human-sex-trafficking
    [6] http://arstechnica.com/tech-policy/2016/09/backpage-com-sex-ad-subpoena-fight-ends-supreme-court-sides-with-senate/
    [7] http://www.ct.gov/dcf/lib/dcf/humantrafficking/reports/HTR3_-_Info_Sheet_-_Social_Media_and_Internet.pdf

  6. Memex appears to be an exciting new tool for law enforcement and prosecutors to gather evidence and cooberate witness testimony. Though still in its infancy, Memex has already played an important role in putting away violent sex traffickers such as Benjamon Gaston, [1] who organized multiple gang rapes of a trafficking victim for profit [2].

    As with any new technology that expands our ability to discover private information, there is a concern that it will be used to inappropriately gather information without a warrant. Being that many things are innocently interconnected online, there may also be evidentiary concerns with proving exactly how Memex’s network actually shows a true pattern of sex trafficking and not merely happenstance.

    As best as I understand, Memex works by scouring the dark net for data inputs such as phone numbers, pictures, and names. [3]. Memex then sets about identifying patterns within the totality of the data inputs. [4]. For example, if an advertisement lists a burner phone number, and this number appears alongside a specific name, the program will attempt to correlate the combination of these two data inputs with other data inputs and combinations of data inputs. The result is to create a set of many correlated relationships that are then projected into a network system that separates data inputs and combinations (verticies) by different levels, based on their degree of correlation. Calculations can then be made based on the number of vertices and the number of separations between vertices (edges). In the aggregate, the central verticies (the most correlated data inputs or combinations) will reveal concentrations of facts suggesting sex trafficking or other crimes, similar to a word cloud. As more information is gathered, the network of nodes trends towards maximum connectivity and certainty can begin to be measured by some form of alpha index. Once a network is compiled, this information can then be taken to additional levels of analysis, such as whether there is a geographical component or ties to Islamic terrorist websites, both of which could reveal crucial details about the type of criminal organization at play.

    Though this is a useful tool, I am afraid that it may create a false sense of certainty in some cases. Basic logic tells us correlation is not causation. Imagine a room full of pictures with yarn strung between them. This is the kind of deductive process that Sherlok Holmes might have found useful, but it can be extremely flawed when the connections are many but of very small consequence. These flaws might give authorities what they incorrectly believe is probable cause to investigate further, or sway a judge to issue a warrant. It might also be overly convincing to juries. These are reasons why I am not entirely sold on Memex, despite it using publicly available information. These concerns are only magnified by projections of what computing power (and thus ability to find connections) will be available in the near future and by what data may be added to the network. Certainly, meta data from burner phones, a popular tool of the trade, [5] would fill in a lot of gaps.

    As to Ferrer’s arguments, I believe there is some merit to his point that sites should not have to thoroughly police their sites to protect themselves. However, there is a difference between overlooking illegal activity and turning a blind eye entirely. I believe Section 230 should be amended to remove indemnification in cases of willful blindness. In agreement with the author, I believe the case for amendment is strengthened further if the willful blindness applies in the narrow case of human trafficking. Otherwise, sites will continue to profit from obviously illegal activity while hiding behind the First Amendment. An analogy could be made to a motel owner who turns a blind eye to prostitution and rents rooms by the hour. It is obvious that prostitution is ongoing and that they are not only ignoring it but facilitating the process. Thus, I have no problem with at least requiring data from sties that blatantly ignore the red flags of human trafficking. [6]

    Given the large use of social media in human trafficking, [7] I believe much could be done to fix the problem through reasonable regulations aimed at requiring greater participation from major social networks. Facebook and similar sites should do more to warn users of the dangers present on their network. Positive change could be as simple as a PSA campaign to inform users on what to look out for to avoid ending up in a sex trafficking ring.
    [1] http://manhattanda.org/press-release/manhattan-district-attorney%E2%80%99s-office-applies-innovative-technology-scan-%E2%80%9Cdark-web%E2%80%9D-fig
    [2] http://manhattanda.org/press-release/da-vance-sex-trafficker-benjamin-gaston-sentenced-50-years-life-state-prison
    [3] See http://www.cbsnews.com/news/darpa-dan-kaufman-internet-security-60-minutes/.
    [4] See id.
    [5] http://www.usnews.com/news/articles/2012/11/16/report-phones-become-the-frontline-of-human-sex-trafficking
    [6] http://arstechnica.com/tech-policy/2016/09/backpage-com-sex-ad-subpoena-fight-ends-supreme-court-sides-with-senate/
    [7] http://www.ct.gov/dcf/lib/dcf/humantrafficking/reports/HTR3_-_Info_Sheet_-_Social_Media_and_Internet.pdf

  7. 1. First i definitely think there us a 4th amendment privacy concern that the use of memex could encounter. From the blog it sounds like the memex software can be seen as a hacking tool to discover a users private information. This memex software reminds me of the child pornography blog in which the government used software to hack the dark web to obtain the personal information of the people visiting a website containing child pornography. Like the child porn software used in the child porn blog the memex software can get through some of the barriers offenders try to use to block law enforcement from obtaining their personal information. Also i think that there could be issues regarding how evidence is collected and if the evidence was collected legally under the 4th amendment.
    2. I think the fact that the original information only comes from information only available to the public shouldn’t give law enforcement the ability to track all of the activity of users suspected of criminal activity. Just because certain public information implicates criminal activity law enforcement should still need to go through the proper channels to legally obtain a warrant to monitor the activities of the suspected criminal.
    3. I do not believe that a user accessing a sex advertisement multiple times should automatically constitute probable cause. I can picture someone who found the sex ad on accident going back to it multiple times for and number of reasons that are not illegal. Maybe the person is going back to the ad to show others the dangers that are on the internet, or to show how disgusting the ad is, or to try to get it taken down. I think if the person starts accessing the ad an alarming number of times or starts accessing other sex ads then that behavior should be considered probable cause. I think someone visiting 100 different ads should definitely be considered probable cause theres no way that that activity is an accident.

    1. Ferrer’s first argument from the blog that “the first amendment bars the prosecution because imposing an obligation on publishers to review all speech to ensure that none is unlawful would severely chill free expression” seems like a strong argument to me. It does seem overreaching to require publishers to review all speech, that would be time consuming and would result in further freedom of speech issues. Ferrer’s second argument that hes not responsible for third party post also seems like a strong argument. The Federal Communication Decency Act states that a publisher is not liable for third party posts. This act also bars state or local action against publishers for third party posts.
    2. If i were a member of congress i would also go for the plan to amend the Federal Communication Decency Act to allow states to go after human trafficking. I think law enforcement should be allowed to go after human traffickers due to the nature of the crime and the harm caused by it.
    3. I do not think Ferrer should be held liable for the posts of other individual since the law clearly states he is not responsible for third party posts. I think with the laws the way they are now trying to hold ferrer is a waste of time and resources.

  8. Here is an easy way to fix the problems regarding the enforcement and investigation of human trafficking crimes: legalize prostitution.

    In my opinion, the constitutional right to privacy encompasses the right to prostitution. Just as the right to privacy from governmental interference protects a woman’s right to choose to have an abortion, I believe the same can be said to protect an individuals right to engage in consensual sexual activity for compensation. This argument is even stronger since the individuals right to engage in consensual sexual activity does not have to be balanced against other interests like that of a viable fetus in the case of abortion. Admittedly, there may be some governmental interests like public health that warrant some regulations of prostitution in ways like requiring testing and licensing. However, I do not believe there are sufficient governmental interests to completely ban prostitution. Similarly, I believe the individuals have a right to engage in prostitution and that moral disapproval does not provide a sufficient justification for criminalizing those acts in the same way that same-sex couples have a right to engage in consensual acts of “sodomy” despite moral arguments against such activities.

    Why are we even talking about fixing the way we punish prostitutes and pimps when the problem isn’t the fact that we’re having trouble punishing them for their online activities, the problem is that we’re punishing them in the first place.

    Consensual prostitution should not be illegal. Instead, it should be regulated to protect and balance the interests of both the customer, the buyer, and the manager. Legally opening up this industry will create an enormous tax income for the nation and states and will better protect the health, safety, and wallets/pocketbooks of everyone involved in the transaction. Legalization would also fear up law enforcement and judicial resources to punish those people that deserve to be punished – people who engage in nonconsensual sexual slavery. Culpability lies with those individuals that kidnap people and sell them into the sex trade against their will, and those are the only people that should be punished. Legalizing and regulating prostitution ensures that we can punish the most abhorrent while also protecting those that choose to engage in consensual acts.

  9. I don’t think Memex would face any constitutional issues assuming it’s only searching and building off of publicly available data. If it’s available online to the public I doubt a court would find any expectation of privacy that would need to be protected and plain view would start to apply since the information could be found online in plain view. If Memex is going beyond publicly available data than that’s a different story in my mind in terms of the legal issues. I am fairly at peace with using Memex to gather information against suspected sex traffickers, I think the process of posting ads online for these types of services (escort, massage, etc) inherently opens them up to scrutiny by law enforcement. In terms of probable cause I would be worried about treating the act of viewing an ad as PC by itself, I would worry about people accidently ending up in this locations or people doing research/their own investigatory searches becoming suspects. I do think that if law enforcement is able to put together a pattern of viewing ads in terms of quantity of ads viewed and a time period of repeatedly viewing ads I would consider that to start to provide PC if there was some other evidence of acting on such browsing.

    I am generally sympathetic to the argument that platforms should not be liable for what 3rd parties post on those platforms but I think that argument loses its force in cases like Backpage. They have to know what these parts of their platform are used for and at some point the obvious nature of the illegal activity should translate into liability when they fail to take action to prevent such illegal activity. I think DMCA takedowns and our discussion about how to treat sites like MegaUpload is very instructive to this issue. I think they idea that Backpage would be unable to determine what is and is not illegal falls apart on its face, any reasonable person would be able to see that these parts of their site are nearly 100% filled with ads for illegal activity.

    I would require more serious compliance by platforms like Backpage without going so far as requiring them to individually review every ad. I do believe Ferrer should be held liable he clearly facilitated crime and did nothing to stop fairly blatant activity that was illegal and damaging to victims of sex trafficking.

  10. I’m not quite sure as to Ferrer’s first argument. However, I do agree fully with the second argument raised – that it cannot be held responsible for third-party posts on its site. The cutback to this argument would be the issue of vicarious liability. There is, and should be, some type of liability impugned to the entity as it is the controlling entity that should be monitoring what content is placed on the website. I believe this also goes to the third question posed by the principal blogger.

    I definitely believe that Ferrer should be held liable for posts of other individuals even through he is not the producer of the posts. I think the Communications Decency Act provides way too much leniency for individuals like Ferrer. And although the First Amendment may not impose any requirements on people like Ferrer to monitor their site, certain caveats should be made. There is no reason why Ferrer, the site monitor, should not be held responsible for illegal content on his site. Yes, it is a bit taxing, particularly for smaller companies, to engage in this type of 24-7 surveillance. But there needs to be some kind of time frame or grace period allowing the site moderator some leniency from the time the post has been posted to find and take down the post. This is literally just enabling individuals to engage in criminal behavior while the site moderator can simply turn a blind eye, feign ignorance, or (worse still) simply ignore the illegal actions. I bet if the site moderator knew that they would at least be running the risk of being held somewhat vicariously liable for illegal content posted on their website by third parties, they would do much more to ensure that those posts were taken down and are stopped. Take, for example, YouTube. Although there are safe harbor provisions and things of that nature to help protect YouTube from infringing materials being placed onto their site, YouTube still actively searches for infringing material and takes steps to remove it from the site. Even though liability for the is low, they still feel a sense of duty and responsibility to ensure that illegal activity does not get posted on their site. The same impetus needs to be placed on individuals like Ferrer.

    As to the issue of approaching the problem of curbing online human trafficking, I really don’t know what I would do to be honest. The issues that arise from human trafficking is basically that once it gets online, many times it is already too late. Therefore, more needs to be done to fight and stop human trafficking at its source, stop it before it even happens and before individuals are trafficked or offered for sale online.

  11. The issue of data mining is scary! But, data mining is done all the time and it is perfectly legal for companies to engage in mining public information. Every time we visit a website or make a purchase, within 30 seconds our information has been sold to someone by a data mining company. Of course the tricky part is whether the data being mined is public or private. IF the information is public, there is no bar to collecting it. If the government, on the other hand, wants to collect private data then we need to have safeguards in place so that rights that are constitutionally protected are not violated. If public information was collected and it suggested criminal conduct and the government then wanted to see data that was private, I would think that we would need a warrant or some kind of judicial review.

    As I mentioned in my comment to the Sextortion post, I do believe there is some room to review the CDA’s protection of ISP providers. The internet is vastly different today than it was when the CDA was passed. Technology allows the ISP providers opportunities to do things they could not have done before. Perhaps it would be possible to tailor the protections given such that companies that recklessly placed ads soliciting violations of law could be prosecuted.

    The legalization of prostitution has nothing to do with human trafficking for the purposes of sexual exploitation. Even countries, such as the Netherlands, where prostitution has been legalized for years is facing an influx of trafficked women and girls. Human trafficking is exploitation, it is not sex work engaged in by consenting adults.

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