WASHINGTON—A dispute over how to deter a flourishing online sex trade is likely to escalate into a high-profile policy battle in 2018, adding to political headaches for big tech.
Lawmakers for months have been working on ways to address the issue, which has its roots in a 1990s law that gives websites and other online businesses broad legal immunity for activity of their users. The law has provided legal cover for adult classified-ad sites such as Backpage.com to develop into big businesses, shielding them from lawsuits by victims as well as prosecution and other actions by local authorities.
Rival House and Senate committees are approaching the problem in sharply different ways, the former developed with major input from tech firms, and the latter favored by advocates for victims of sex-trafficking, such as the commercial sexual exploitation of children.
The contrasting approaches draw tech companies into a battle over an issue on which they have had to tread carefully.
While the industry wants to play a role in combating sex trafficking, big tech companies including Alphabet Inc.’s Google and Facebook Inc., could lose a big advantage they currently enjoy—the broad legal immunity granted to online businesses under federal law.
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The chief industry lobbying organization, the Internet Association, currently says it supports both the House and Senate approaches. Google didn’t comment, and Facebook pointed to a recent blog post by its chief operating officer, Sheryl Sandberg, endorsing the Senate measure.
But many on both sides of the issue believe the industry prefers the House approach to the Senate, and, more generally, is in no rush to make any changes to current law.
In hopes of pressuring tech companies into going along with their approach, Senate sponsors, backed by victim advocates, plan to turn a public spotlight on the issue starting in January. The Senate measure would amend the 1996 law to clarify that it isn’t meant to impair enforcement of federal or state anti-trafficking laws, including civil suits by victims.
The approach adopted by the House Judiciary Committee this month would make it easier for prosecutors to go after websites. But it did little to open the door to civil lawsuits by victims, who often have faced insurmountable legal obstacles to suing websites and services over online trafficking.
Judiciary Chairman Robert Goodlatte (R., Va.) said in a statement that the committee “worked with law enforcement to craft the bill, so it contains the tools we know they need to better prosecute these crimes.”
Some House lawmakers also believe it is premature to increase the tech industry’s possible civil exposure while the courts are still weighing recently developed evidence and legal theories that could allow victims to recover damages under current law.
The effort is aimed at companies like Backpage, which itself has hosted millions of adult-services ads that prosecutors say are thinly veiled solicitations for prostitution. Trafficking of minors on these sites has become commonplace, authorities say, although Backpage says it makes extensive efforts to screen out sex-trafficking victims.
Big tech firms have worried about changes to the 1990s law, arguing that could expose them to expensive lawsuits by victims, despite their own extensive efforts to screen out sex trafficking.
They also worry that any changes could lead to more exceptions from legal immunity for other online harms, such as harassment, revenge porn or promotion of terrorism.
Some victim advocates say they believe tech companies are overreacting to the possibility of civil lawsuits by sex-trafficking victims.
“There’s this concern that everyone under the sun is going to sue…and put the tech industry out of business, and cause the internet to shut down,” said Shea Rhodes, director of the Villanova Law Institute to Address Commercial Sexual Exploitation. “The tech industry is afraid for all the wrong reasons….To me I just feel like there’s all this hysteria and it’s much ado about nothing.”
An email sent by a House committee staffer to tech lobbyists in early November underscores the industry’s concern. The email assured lobbyists that the House committee was planning “a novel approach in tackling this issue that will protect good actor websites from baseless criminal investigations and frivolous litigation, while allowing vigorous criminal enforcement for websites that purposely promote prostitution and recklessly disregard the fact that victims are being trafficked on their websites.”
Lobbying records show that several major internet firms and groups, including Google and Facebook, have lobbied Congress over the House bill, which victim advocates say was significantly weakened before gaining approval in the House Judiciary Committee in mid-December.
Sen. Rob Portman (R., Ohio), one of the main sponsors of the Senate bill, said his approach is “the right prescription for solving this problem, and I am confident the full Senate will pass it in an overwhelming, bipartisan fashion.”
Aides expect the Portman bill, also backed by Sen. Richard Blumenthal (D., Conn.) and more than 50 other senators, to reach the Senate floor early next year, and be approved by a big margin. Advocates also have been planning events for January to raise public awareness.
The issue has emerged as one of the biggest in a series of political and public-relations headaches for big internet companies this year. They also have run into trouble in Washington over their role in Russian meddling in the 2016 election. Some lawmakers in both parties also question whether internet giants such as Google have grown too big and powerful.
Write to John D. McKinnon at firstname.lastname@example.org
Appeared in the December 30, 2017, print edition as ‘Websites’ Legal Immunity Is in Play.’