Human Trafficking: The un(intentional) effects of SESTA

Human trafficking has been defined by the United Nations Office on Drugs and Crime (UNODC) as, “the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”[1] With society being heavily influenced by technology today, traffickers can conduct almost all of their business online. As a result, the developing field of cyberlaw has become interwoven into the issue of human trafficking.

CDA 230

Section 230 of the Communications Decency Act of 1996 (CDA 230) is one of the most important reasons we have the internet that we do today. CDA 230 limits the liability of interactive computer service providers for content created by third-party users.[2]According to the CDA, section 230 was created to increase the public’s benefit of Internet services by restricting government interference in interactive media and protecting the free flow of expression online.[2]Without those protections, most online intermediaries would not exist in their current form; the risk of liability would simply be too high.[3]However, CDA 230 has become a point of tension regarding technology-facilitated trafficking. CDA 230 is seen by some as an avenue through which providers can be protected from liability as hosts of illegal content created by third parties.

SESTA/FOSTA

The Stop Enabling Sex Traffickers Act (SESTA) along with a companion bill, Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) was prompted by a case involving Backpage.com, in which executives of the site were arrested on charges of pimping a minor, pimping, and conspiracy to commit pimping.[4] However courts dismissed the case based on Section 230 of the Communications Decency Act.[4] SESTA was then passed which would make it illegal for Backpage and similar websites to “knowingly assist, facilitate, or support sex trafficking.”[5]

SESTA in part provided that section 230 does not limit: “(1) a federal civil claim for conduct that constitutes sex trafficking, (2) a federal criminal charge for conduct that constitutes sex trafficking, or (3) a state criminal charge for conduct that promotes or facilitates prostitution in violation of [FOSTA].”[5]

SESTA requires Internet businesses to utilize automated filtering technologies on their websites in order to monitor the activity that is taking place. The automated filtering provides assistance in finding content that may need further review but that review must still be completed by the website’s creators. However, many Internet companies are unable to dedicate enough staff time to fully mitigate the risk of litigation under SESTA. Instead, they tune their automated filters to err on the side of extreme caution removing any mention of content that may be related to sex trafficking.[3] It would be a technical challenge to create a filter that removes sex trafficking advertisements but doesn’t also censor a victim of trafficking telling her story or trying to find help.[6]

Effects of SESTA

FOSTA and SESTA are anti-trafficking, pro-censorship bills on their face however, critics argue that both bills weaken internet freedoms. [6] The algorithms that are utilized fail to differentiate between Internet users talking about themselves and making statements about marginalized groups.[3] The over-censoring of content almost always results in some voices being silenced and the most marginalized voices in society can be the first to disappear. [4]

As a result of SESTA/FOSTA, Tumblr banned adult content on its website on December 17, 2018. Sex worker advocates argue that the bill does nothing to help sex-trafficking victims but it does make sex work a federal crime. [6] These banning policies marginalize sex workers by making it harder to safely conduct their business, report abuse and share safety resources that can help trafficking victims.[7] Many sex workers utilized online communities to also warn other sex workers about violent potential clients that they should avoid interacting with. Limiting these online communities drives the trafficking problem underground which results in an increase in violence. Studies show that violence against women decreases when online advertising is available to sex workers.[8] There has been little evidence to suggest that these bans of adult content have been effective in any way. However, they do make bad actors more difficult to find [9] Additionally, Backpage aided law enforcement in capturing traffickers and provided tips on criminal activity.[10]

Many do believe that very soon sex traffickers will learn what words or phrases trigger the filter and avoid them by using other words or phrases. [3] These platforms that are utilizing algorithms should carefully balance enforcing standards with respecting users’ right to express themselves without criminalization.

  1. Should websites be held accountable/liable for third party content?
  2. Would a balancing test be effective when discussing the use of algorithms? Which factors should be considered?
  3. Could SESTA have been created to criminalize sex work under the guise of anti-sex trafficking efforts?
  4. What amendments would you suggest to SESTA to ensure that it is achieving its purpose?

 

 

 

[1]https://www.unodc.org/documents/middleeastandnorthafrica/organised-crime/UNITED_NATIONS_CONVENTION_AGAINST_TRANSNATIONAL_ORGANIZED_CRIME_AND_THE_PROTOCOLS_THERETO.pdf

[2]47 U.S.C. § 230(a).

[3]https://www.eff.org/deeplinks/2017/09/stop-sesta-whose-voices-will-sesta-silence

[4]https://gizmodo.com/ceo-of-americas-second-largest-classifieds-site-arreste-1787509049

[5]https://www.congress.gov/bill/115th-congress/senate-bill/1693

[5]https://theslot.jezebel.com/house-passes-online-sex-trafficking-bill-that-critics-s-1823374389

 

[6]https://www.huffpost.com/entry/opinion-tumblr-ban-sex-work-porn_n_5c09af57e4b04046345a86b1

[7]http://gregoryjdeangelo.com/workingpapers/Craigslist5.0.pdf

[8]https://motherboard.vice.com/en_us/article/bjpqvz/fosta-sesta-sex-work-and-trafficking\\

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~ by rjohnson1613 on March 31, 2019.

6 Responses to “Human Trafficking: The un(intentional) effects of SESTA”

  1. I believe that websites should face some accountability and liability for the content they allow on their platforms. I don’t believe in any sort of criminal penalties, but if they reap the benefit they should also face some of the consequences. This should be true regardless of the content. I’ve heard many people suggest that perhaps social media platforms should be treated like utilities over the concern of censorship. However, until that day comes, maybe some form of punishment will allow these companies to innovate in the way they review content.

    One alternative would be to prevent large websites such as Tumblr to host this content and allow for more smaller websites that can more accurately review their own users. Ultimately, sites like Facebook and Tumblr will likely have to utilize some autobanning until they can find a better way to review each individual comment. A smaller website will likely have to deal with less reports and can more accurately and fairly review the reports without falling into too much censorship.

    I do have some issue understanding the Jezebel article. It appears that many who use the website for sex work seem to use it in a way that would not impact sex trafficking victims. I think the overreach goes to show that that perhaps FOSTA/SESTA was not created by those who truly understand the issue and now have a regulation that isn’t serving its intended purpose.

  2. Websites should definitely be held liable for third party content. These websites still have to comport with all other applicable laws so it seems they should also be held accountable when it comes to their websites being used to commit illegal acts. It seems the concern is over how websites can officially monitor their sites for signs of human trafficking, however it seems that better algorithms could be created to address human trafficking to prevent traffickers from using these platforms as a headquarters for their illegal business. Perhaps another way to do this is to rely less on algorithms and rely more on a user reporting future. For example, allow users to report content they believe is a violation of the sites rules (rules against trafficking) and then use algorithms and man power to sort through these reports similar to how most social media platforms have these types of things. Also, it may be a good idea to auto-ban things that trigger the algorithmic filter and then allow the website monitors to review the content – if the content is not trafficking, then undo the ban.

    It definitely seems possible that SESTA was used to criminalize sex work. It was sort of a back door way of doing it, but it definitely seems possible. Sex work is incredibly controversial and it is likely that if SESTA was created to explicitly criminalize sex work there would be pushback from the public. Framing it as a way to prevent human trafficking is definitely a way to get around this. I think this is more of a “kill two birds with one stone” scenario though in that they were targeting human trafficking with the added benefit of criminalizing sex work.

    I think SESTA needs to be sure that it is only using the least restrictive means to achieve its goal. SESTA needs to be sure that it is not hampering people from speaking out against their experiences with trafficking because silencing these voices would be counterintuitive to their goal. At the same time, SESTA needs to be sure it is taking steps to help prevent human trafficking. This definitely seems like a balancing test with a very fine line between offending one side or the other.

  3. The issue of liability on the basis of third party content is a complicated issue. If we were to hold service providers liable for the content that is posted on their website, I would imagine many of these service providers would just cease to exist. The potential for criminal and civil penalties as a result of content that the service providers didn’t create/don’t endorse/don’t maintain seems like a giant risk for any business to run. Additionally, holding service providers liable for the content of third parties necessarily requires censorship by a third party. Recently, a republican member of the House of Representatives filed a $250 million suit against twitter for the existence of parody accounts in the name of his mother. While not at all as serious as the issue of sex trafficking, it does beg the question: should Twitter, a service with hundreds of millions of accounts, be responsible for the creation, maintenance, and posts of two accounts? It’s hard to imagine the work force that would be required to review all of the content posted through Twitter. I understand that forcing liability on service providers is a great way to force someone to keep an eye on how the platform is being used, but I feel the negatives of this idea outweigh the cons.

    When it comes to algorithms, I think as long as there is any kind of liability on the part of service providers we’re going to see extreme caution in applying filters. If we’re going to force service providers to face penalties as a result of the content on their website, I think the only smart business decision is extreme caution. It’s important to remember not all of these providers are Facebook or Google, and they can’t afford the staffing required to monitor all of the content that is put on their page. I understand the dilemma though. I think there is a gap here for a new company, or government entity, to take the time to create a standardized algorithm that abides by current laws. Creating the appropriate algorithm for providers to use will allow the appropriate content to get blocked, while allowing those who need to tell their stories to tell those stories.

    I must be confused because I thought that sex work was already against the law? I don’t think the people that drafted SESTA went into the bill with the intent to harm sex traffickers, I just think that they are bad at drafting bills. I’m sure it is hard to draft bills that account for every possible effect of their implementation, but I do think the stated purpose of the bill is the purpose of the bill. I’m not sure which amendments should be added to SESTA.

  4. I believe to a certain extent that websites should be liable for third party content posted on their sites. If a website is known to be a popular place for sex trafficking activity, then the site should be held accountable. It is hard to imagine a site known for sex trafficking activity not knowing that they are known for such explicit means. Issues may arise when trying to prove whether or not a site possessed knowledge of the sex trafficking activity. In such situations, it may be helpful to look at the extent of activity on the site.

    Also, with algorithms on sites used to filter content that sparks concern is a blessing and a curse. These algorithms could help place sites on notice that sex-trafficking is occurring on their site. While these algorithms could also overwhelm sites that do not possess the manpower needed to go through all the flagged content. I do not blame sites for being overly cautious when it comes to the content posted on their site. Why risk the possible litigation? But it is a shame that most sites just do not have the people or do not have enough people dedicated to going through the content flagged by their algorithms. As mentioned, not every post that contains a mention of sex trafficking is bad.

    I as well did not realize that sex workers are legal and allowed to advertise online. Knowing this information, I see a possibility that legislators may have wanted SESTA/FOSTA to cover sex worker’s activities as well. Even if their work is legal, or certain parts of their work are, sex worker’s activities often do not align with the moral compasses of most. Morals often guide legislation because people see a particular act as wrong and want it to stop. In this sense, I could see legislators attempting to kill two birds with one stone.

    SESTA/FOSTA are a solid effort by legislators in their attempt to combat sex trafficking. However, as with many laws, these laws are not perfect, and many kinks still have to be worked out. Better and more accurate algorithms could help with the issue of overly restrictive sites. Further, I would like to hope that most sites that are inadvertently involved in sex trafficking do not want to be. With the help of better legislation, sites could learn how to prevent sex trafficking on their sites before it even starts.

  5. I could easily see how the enactment of SESTA/FOTSA was intended to cover sex workers activities as well as sex traffickers. As was mentioned above, sex workers activities often do not align with the moral compass of many, but that should hardly be a factor in drafting legislation. If the decision is altering algorithms to target sex traffickers or to try and “kill two birds with one stone”, I believe that decision is easy. I can hardly fault legislators for trying to combat sex trafficking, but it seems this is not the best or most direct way to go about it.

    Websites should be responsible for content posted on their platforms to the extent that it encompasses something as terrible as sex trafficking. Platforms such as Twitter should take an active role in reporting and taking down suspected criminal activity, to an extent it does not impede on free speech. Obviously, this is where the issue gets dicey and it will be interesting to see how this issue progresses in the future as social platforms will only become more pervasive.

  6. The problem with trying to have a rational discussion about trafficking is that people try to reduce the efforts to develop responsible legislation into anti-trafficking and pro-trafficking groups. Groups that argued against SESTA/FOSTA were accused of trying to help hide traffickers. You can see the diametrically different approache Polaris, an organization that fights trafficking as its sole activity, took compared to some of the organizations (including DOJ) with regard to SESTA. In reality, the non-trafficking focused groups were advocating for legislation that met constitutional requirements and was not overly broad.

    CDA 230 was adopted at a time when the internet was young and there was some argument that these fledgling technology companies needed shelter in order to have the space to grow. Google, Apple, Facebook and Amazon are now billion dollar businesses that buy up small entrepreneurs before they can even get to market. It’s doubtful those companies still need the kind of across the board protection that CDA 230 offers. However, even without changes to the CDA, companies were never allowed to profit off the wrongdoing of someone posting. The argument made in objection to SESTA was that law enforcement has not made use of the “profiting from” exception. Many scholars believed backpage.com and craigslist.com could have been successfully prosecuted using that exception.

    It may come to a shock to you but not all sex work is against the law. We can talk about that in class. And it is certainly within your rights to have or watch pornography. If a sex worker creates pornography and posts it on Tumblr, it will be taken down. It isn’t illegal and it doesn’t promote trafficking but it will be caught in the over aggressive algorithm. It’s funny how companies can use an overly aggressive algorithm to suppress sex workers but can’t seem to find an algorithm that effectively picks up white supremacist postings or other kinds of postings that incite violence, such as the posts that were used to incite genocidal conduct in Myanmar.

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