[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
ONLINE SEX TRAFFICKING AND THE COMMUNICATIONS DECENCY ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 3, 2017
__________
Serial No. 115-43
__________
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security and Investigations
TREY GOWDY, South Carolina, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
JIM SENSENBRENNER, Jr., Wisconsin SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio TED DEUTCH, Florida
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
JOHN RATCLIFFE, Texas HAKEEM JEFFRIES, New York
MARTHA ROBY, Alabama TED LIEU, California
MIKE JOHNSON, Louisiana JAMIE RASKIN, Maryland
C O N T E N T S
----------
OCTOBER 3, 2017
OPENING STATEMENTS
PAGE
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary......................................................
The Honorable John Conyers, Jr., Michigan, Ranking Member,
Committee on the Judiciary.....................................
The Honorable F. James Sensenbrenner, Wisconsin, Chairman,
Subcommittee on Immigration and Border Security, Committee on
the Judiciary..................................................
The Honorable Zoe Lofgren, California, Ranking Member,
Subcommittee on Immigration and Border Security, Committee on
the Judiciary..................................................
WITNESSES
The Honorable Chris Cox, Outside Counsel, NetChoice
Oral Statement............................................... 6
Mr. Jeff Kosseff, Assistant Professor, United States Naval
Academy
Oral Statement............................................... 8
Ms. Mary G. Leary, Professor of Law, Catholic University Columbus
School of Law
Oral Statement............................................... 9
Mr. Evan Engstrom, Executive Director, Engine
Oral Statement............................................... 11
ONLINE SEX TRAFFICKING AND THE COMMUNICATIONS DECENCY ACT
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TUESDAY, OCTOBER 3, 2017
House of Representatives
Subcommittee on Crime, Terrorism, Homeland Security,
and Investigations
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 10:04 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Chabot
presiding.
Present: Representatives Chabot, Poe, Roby, Johnson of
Louisiana, Rutherford, Jackson Lee, Conyers, Deutch, Bass,
Jeffries, Lieu, and Raskin.
Staff Present: Margaret Barr, Counsel; Scott Johnson,
Professional Staff Member; Mauri Gray, Minority Detailee to the
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations; Joe Graupensperger, Minority Chief Counsel,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations; Monalisa Dugue, Minority Deputy Chief Counsel,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations; and Veronica Eligan, Minority Professional
Staff Member.
Mr. Chabot. Good morning. The Subcommittee on Crime,
Terrorism, Homeland Security, and Investigations will come to
order.
I'm, by the way, not Congressman Sensenbrenner. I'm Steve
Chabot. Mr. Sensenbrenner was unable to be here with us this
morning, so I'm filling in for at least the early part of this
hearing, and then I have another obligation I have to meet.
And, without objection, the chair is authorized to declare
recesses of the subcommittee at any time.
We welcome everyone to today's hearing on the ``Online Sex
Trafficking and the Communications Decency Act.'' And I now
recognize myself for an opening statement.
The internet has been one of the greatest innovations in
history. It has brought tremendous economic and social benefits
to humankind. Nearly any transaction we once had to do in a
brick-and-mortar setting we can now accomplish with a few
clicks of a mouse in the comfort of our own homes. It is
undeniable that for all of us it has made life easier.
Unfortunately, the internet has also become a stomping
ground for criminals, who can use the anonymity of the web to
mask their illicit activities and avoid detection by law
enforcement. It has made their lives easier as well. This is
especially true in the realm of sex trafficking, one of the
most horrific, insidious crimes you can imagine.
Thanks to a group of committed, passionate professionals
and brave victims, the problem of sex trafficking on the
internet is now receiving the attention it merits. We are all
now well aware of the reprehensible and blatantly criminal
conduct of the executives at Backpage.com. Because young
victims have come forward to share their stories, we are aware
of the harm caused by these types of websites, which are not
only a venue for sex traffickers to sell young women but also
materially contribute to this illicit conduct.
Backpage.com's conduct also shed light on websites that are
using the Communications Decency Act to shield themselves from
liability for their illegal activities, something Congress
never intended. Because of their aggressive litigation tactics,
Congress must now revisit the Communications Decency Act to
determine whether courts are interpreting the language of the
statute as intended and whether amendments are necessary to
hold accountable these websites that have allowed with impunity
young people to be sold online.
That is why we are here today. Questions have emerged from
cases at both the State and Federal level involving a variety
of factual circumstances and varying interpretations by courts
considering the breadth of the Communications Decency immunity
provision. It appears Backpage.com was able to use the
provision not only as a shield in avoiding civil liability but
also as a sword in challenging State laws seeking to pass laws
to stop Backpage from facilitating human trafficking.
Today, we welcome a panel that is well versed in the case
law surrounding the interpretation of CDA 230 by both State and
Federal courts. We look forward to hearing their thoughts on
this subject and their ideas to ensure these websites are held
accountable.
I would now like to yield to the ranking member for the
purpose of her opening statement.
Ms. Jackson Lee. Mr. Chairman, thank you so very much. And
I am very grateful for the opportunity for this very important
hearing with the very important guests that we have and wish to
acknowledge the author of this legislation, Congresswoman
Wagner.
Before I start with my brief statement, I would like to in
this Judiciary Committee make mention of the tragedy and
travesty and horror of terrorism, domestic terrorism, of the
incident in Las Vegas and offer my prayers and my support for
those wounded and my prayers for the families of those who have
lost their lives and believe that this committee is one of the
most important committees in the wheel of justice and would
hope, before a short order, legislation of Mr. Thompson, Mr.
King of New York will be put forward and that we recognize that
weapons of war must be regulated. That is what we're here to
talk about today, maybe in another forum. And so I am hoping
that the consciousness of bipartisanship, the removal of one's
clutch in the hands of special interests, that we may come
together in order to save lives.
So I thank you, Mr. Chairman. As a senior member of the
Judiciary Committee and a lifelong advocate of the First
Amendment and a strong leader in the fight to eradicate the
vile act of human trafficking, I welcome this hearing to
discuss this very important issue of ``Online Sex Trafficking
and the Communications Decency Act.''
This hearing extends far beyond any proposed legislation
because we hope to address the pervasive physical and
psychological damage of sex trafficking more broadly and how
best to navigate the online space for accountability while
ensuring that we do not employ--and undermine justice for all.
As a member of the Homeland Security Committee, I was the
first member of that committee and maybe the first Member to
hold a human trafficking hearing in her own district. Houston
is the epicenter for sex trafficking, human trafficking in all
forms. And we listened to those women who years ago were called
prostitutes, who have been victims of sex trafficking and human
trafficking. We did it in my home territory, and Members of
Congress, both bipartisan, were there to hear and to discuss
ways of moving forward.
Trafficking in persons is an inconceivable, callous, brutal
crime that unquestionably deserves the Nation's utmost
attention. It is particularly difficult to see the
victimization of the very young who are sold or tricked into
becoming victims of human trafficking.
Sex trafficking, whether online or not, is an abhorrent and
inhumane poison that has seeped its claws into the fabric of
our society and one we must eradicate. It is a modern-day
slavery that exists throughout the United States and globally,
and I am committed to ensuring that vicious perpetrators are
brought to justice.
I have spent a great deal of my time as ranking member of
the Crime Subcommittee working and advocating on behalf of
victims, all of whom I see as survivors. I understand deeply
the profound harm caused by crime, whether it is domestic
violence, child labor, sex exploitation. I continue to speak
the truth in this space and seek however I can to find ways
that will provide safety, healing, and justice in order for our
survivors to take charge of their lives moving forward.
Survivors, I hear you. J.S., M.A., and all the young women
and young men labeled as Jane and John Doe sold into the
criminal and financial enterprise of sex exploitation, I see
you and heard your stories loud and clear, and we will all say,
``We are Jane Doe.''
Nacole, Kubiiki, and others and all of the parents and
families of those survivors, I feel your pain and heard your
cries. I heard what it was like, not knowing where they were or
whether they were alive.
Nacole, you said you will never be the same family again.
Kubiiki, you asked, if it was our daughters, what would we
do.
We all hear you and will continue to listen to you as long
as we can look for solutions to this devastating problem.
Your fight is not futile, as exhibited on September 23rd,
2015, in Washington State Supreme Court's decision to move
forward with your case against Backpage. Statistics indicates
that the majority of our young children that are trafficked
online were done so on Backpage, which is now facing pending
litigation.
When this sort of crime is committed against one child, it
is committed against all of our children. And we are Members of
Congress, and we must move forward in helping. As ranking
member of the Crime Subcommittee, I'm infuriated and, thus,
committed to finding ways to collaboratively work with the
chairman, my colleagues, and experts to address the problem.
As someone who strongly believes in the First Amendment, I
am also committed to addressing this problem in a prudent and
constitutional manner. That's why I've successfully amended
H.R. 4660, the Commerce, Justice, and Science Appropriations,
providing $500,000 to strengthen the ability of State and local
law enforcement to identify, apprehend, and prosecute domestic
child traffickers, while requiring the Attorney General to make
available training and education that will empower them to gain
the cooperation and active assistance of victims of human
trafficking who would otherwise refuse to cooperate.
Again, I submit an amendment in the H.R. 4800, Agriculture
Appropriations, which makes clear that the Secretary of
Agriculture and other Federal agency heads may provide
assistance and benefits to victims of trafficking as permitted
under 22 U.S.C. 7105, of the Victims of Trafficking and
Violence Prevention Act of 2000.
Germane to this discussion is what we do at the onset when
we rescue our innocent children lost in their web of sex
exploitation. I've responded by introducing H.R. 5238, the
Securing the Assistance of Victims of Exploitation, which makes
clear that benefits should not be denied even if a person is
not documented.
During the internet's infancy, Congress thought it
necessary to enact legislation to protect its ability to
function. This legislation--I hope that we will be able to ask
the tough questions and we'll get good, tough answers in this
hearing. Given the internet's significant role in recruitment
of victims and facilitation of sex trafficking, the dialogue
must also seek to clarify Congress' intent with respect to
section 230.
The next question is, how do we hold accountable the true
bad actors? And that is what we should be addressing today. And
how do we continue to enhance our ability to communicate?
So I look forward to the witnesses' testimony.
Mr. Chairman, I would like to offer into the record a
story--a movie about online sex trafficking might actually get
laws changed--``I am Jane Doe.'' I'd like to submit that into
the record, with unanimous consent.
Mr. Chabot. Without objection, so ordered.
Ms. Jackson Lee. And as I conclude, Mr. Chairman, let me
indicate to the witnesses, I will look forward to hearing your
testimony. My city is devastated by Hurricane Harvey, and if I
have to leave, it will be going to a meeting dealing with the
recovery of my constituents. And I thank you all so very much.
I do want to welcome my dear friend, former Member and
former chairman of the Homeland Security Committee, the
Honorable Chris Cox. It good to see you again, along with all
of the other witnesses.
I yield back, Mr. Chairman.
Mr. Chabot. The gentlelady yields back.
Without objection, other members' opening statements will
be made part of the record.
We have a very distinguished panel today. I'll begin by
swearing in our witnesses before introducing them.
So if you would all please stand for a moment.
Do you swear that the testimony you are about to give
before this committee is the truth, the whole truth, and
nothing but the truth, so help you God?
For the record, let it reflect that the witnesses responded
in the affirmative.
And you can now please be a seated.
And I would like to introduce the panel.
Our first witness will be Mr. Chris Cox. Mr. Cox served for
17 years as a Member of the House of Representatives and has
had a distinguished career in public service. In addition to
his tenure here in Congress, Mr. Cox has served as Senior
Associate Counsel to President Reagan and as the Chairman of
the Securities and Exchange Commission.
We welcome you this morning, Chris.
Our second witness is Professor Jeff Kosseff. Professor
Kosseff is an assistant professor at the United States Naval
Academy's Cyber Science Department. His research focuses on
cybersecurity evidentiary issues, public-private cybersecurity
partnerships, cybercrime, cyber warfare law, and the
intersection of cybersecurity and free speech.
And we welcome you here, Professor.
Our third witness is Professor Mary Leary of Catholic
University's Columbus School of Law. Ms. Leary is a former
prosecutor and attorney in the nonprofit sector, focusing on
crimes against women and children, a former policy consultant
and deputy director for the Office of Legal Counsel at the
National Center for Missing and Exploited Children, and the
former director of the National Center for Prosecution of Child
Abuse.
And we welcome you here, Professor.
And our fourth witness is Mr. Evan Engstrom. Mr. Engstrom
is the executive director of Engine, the policy advocacy group
and research foundation focused on tech entrepreneurship. Prior
to joining Engine, Mr. Engstrom worked as a copyright and
intellectual property attorney. He is a graduate of the
University of Wisconsin, Madison, and Harvard Law School.
And we welcome you here as well, Mr. Engstrom.
Each of the witnesses' written statements will be entered
into the record in its entirety, and I would ask that each
witness summarize his or her testimony in 5 minutes or less.
To help you stay within that, we have a lighting system.
The green light will remain on for 4 minutes. The yellow light
will come on for a minute. And then the red will come on, and
that is letting you know that it is time to wrap up. And we
will hold ourselves within the same 5-minute rule that we hold
you to.
And if there is no further business, we will hear from our
first witness.
Mr. Cox, you're recognized for 5 minutes.
TESTIMONY OF THE HONORABLE CHRIS COX, OUTSIDE COUNSEL,
NETCHOICE; JEFF KOSSEFF, ASSISTANT PROFESSOR, UNITED STATES
NAVAL ACADEMY; MARY G. LEARY, PROFESSOR OF LAW, CATHOLIC
UNIVERSITY COLUMBUS SCHOOL OF LAW; AND EVAN ENGSTROM, EXECUTIVE
DIRECTOR, ENGINE
TESTIMONY OF THE HONORABLE CHRIS COX
Mr. Cox. Thank you very much. I very much appreciate the
kind introduction. And I want to apologize at the outset for
those of you who perhaps were familiar with my old voice. I now
have paralyzed vocal cords. So you've heard about the sound of
one hand clapping; this is the sound of one vocal cord
vibrating. Thank you for the opportunity to testify on behalf
of NetChoice.
Those of us who were here in 1995 and 1996 well remember
the debate over pornography on the internet that gave rise to
the Communications Decency Act. At the time, wayward court
decisions threatened the future of the internet. A web portal
had done the good deed of screening some of its user-generated
content, and it was held responsible for screening all of it.
Under that unfortunate rule, the good deed of at least trying
to keep the internet free from objectionable material would've
been punished.
The bill that I wrote to eliminate this perverse incentive
was cosponsored by our colleague Ron Wyden, and it eventually
became section 230 of the CDA in 1996.
Looking across the intervening two decades of judicial
interpretations of section 230, we can see that the law has
contributed to the successful development of the internet by
providing the legal foundation for user-generated content that
today is shared not just among millions, as was the case at the
time, but billions of people.
The remarkable accomplishments of Wikipedia, to take one
example, which has long since outstripped even the Encyclopedia
Britannica for the depth and the breadth of its coverage, is
just one marvel of the 21st century that we daily take for
granted as we use it without charge.
Wikimedia, the Wikimedia Foundation that operates
Wikipedia, is a very small organization, and it relies on
voluntary contributions. If it were subject to lawsuits for the
contributions and comments of its volunteers and its users, it
couldn't sustain itself, and it would cease to exist as a
valuable, free resource for every American.
The fundamental objective of section 230 has always been to
incentivize website operators to keep the internet free of
objectionable material. The law achieves this by protecting
them when in good faith they become involved in content
creation for the purpose of keeping objectionable material off
of their sites or editing content created by others or taking
it down altogether in order to remove offensive material. To
this extent, the law says they will not be treated as
publishers.
At the same time, section 230 makes clear that becoming
involved in content creation for any other purpose eliminates
any protection from suit. And that's true even if the
involvement and content creation is only partial. And it is
true even if the internet platform itself does not create the
content but only develops it. And it is true even when the
platform is only partially responsible for the development. It
still loses section 230 protection.
The inclusion of this clear language in section 230 was
deliberate. It was intended to ensure that both criminal and
civil statutes would continue to be vigorously enforced. And
that's why section 230 expressly states that Federal criminal
law is entirely unaffected by its provisions and that neither
is there any effect on the enforcement of State law, whether
civil or criminal, provided the State laws are enforced
consistently with the uniform national policy expressed in
section 230.
The uniform national policy applies equally to all civil
and criminal cases. It's important that there be a uniform
national policy because the internet is the quintessential
vehicle of interstate commerce. Its packet-switched
architecture makes it uniquely susceptible to multiple sources
of conflicting State and local regulation. Even an email from
this hearing room to the Capitol can be broken up into pieces
and routed through servers in different States.
If every State were free to adopt its own policy governing
when an internet platform will be liable for criminal or
tortious conduct--that is to say, for the criminal and tortious
conduct of another--not only would compliance become
oppressive, but the Federal policy itself would quickly become
undone.
Nonetheless, there is a move afoot to amend section 230 in
ways that could sow chaos. In the bills that have been offered
to amend section 230, the uniform national policy would be
abandoned in favor of a new rule within section 230 itself for
sex trafficking. For the tens of thousands of other State and
Federal crimes, no compatible modification would be made. It
goes without saying that many of these crimes are just as
heinous, just as horrible as sex trafficking. Many of these
crimes, such as murder for hire or terrorism, are often
accomplished using the internet, just as sex trafficking is.
A judge confronting the anomaly of a new standard in
section 230 that applies uniquely to sex trafficking would be
forced to conclude that Congress intended to make it easier to
prosecute this one offense, but this would necessarily mean it
would correlatively be more difficult to prosecute all the
other offenses.
The result would be to strengthen the precedential force of
those court decisions most hostile to the prosecution of
internet crime. That is not likely the intention of most of
those who are sponsoring bills to change section 230. It's an
undesirable result that could easily be avoided through better
legal craftsmanship.
One focus----
Mr. Chabot. Excuse me.
Mr. Cox [continuing]. In the current discussion of----
Mr. Chabot. If you could kind of wrap up, we're----
Mr. Cox. Yes, of course.
Mr. Chabot. Thank you very much.
Mr. Cox. One focus in the current discussion of how to
combat internet sex trafficking is the report of Senator
Portman's investigative subcommittee laying out extensive
factual allegations demonstrating that Backpage.com was
directly involved in creating content and editing it. Assuming
these facts are true, they will amply support both Federal and
State prosecutions without any interference from section 230.
I have laid out in my written testimony six suggestions for
this committee with its special jurisdiction and focus on crime
and for Congress as a whole that include the enactment of
strengthening provisions to existing criminal law in 18 U.S.C.
section 1952. That draft legislation is attached to my
testimony.
I look forward, Mr. Chairman, to further questions.
Mr. Chabot. Thank you very much.
Professor Kosseff, you are recognized for 5 minutes.
TESTIMONY OF JEFF KOSSEFF
Mr. Kosseff. Congressman Chabot, Ranking Member Jackson
Lee, and members of the subcommittee, thank you very much for
the opportunity to testify about section 230.
My name is Jeff Kosseff, and I'm an assistant professor at
the U.S. Naval Academy Cyber Science Department. The views that
I express today are only my own and do not represent those of
the Naval Academy, Department of Navy, Department of Defense,
or any other party.
I commend the subcommittee for taking a close and serious
look at section 230. No other section of the United States Code
has had a greater impact on the development of the internet.
Because of section 230, the internet and the United States is
the epitome of everything that we love and that we hate about
unconstrained free speech.
Both the House and the Senate are considering proposals to
amend 230 to address online sex trafficking. I'm not here to
support or oppose any particular bill; rather, I hope to
provide you with information that I've gathered and conclusions
that I've drawn after spending more than a year researching and
writing a book about the history of section 230.
Our legal system must have strong criminal penalties and
civil remedies to deter not only the act of sex trafficking but
also the knowing advertisement of sex trafficking by online
platforms, period. I hope that Congress agrees on a solution
that imposes severe penalties on bad actors--and we need to be
very clear, there are some very bad actors--without chilling
legal online speech. And I think this is something we can do.
Understanding 230's history is critical, and my written
testimony more fully explains the mechanics and origins of the
law.
Congress passed section 230 in 1996 because the legal
precedents in early cases against online platforms created a
bizarre rule that online services might actually increase their
liability by moderating content. Congress also wanted to limit
government regulations of the emerging internet. By passing
230, Congress allowed companies to create business models
around user content. It is simply not a coincidence that many
of the most successful internet platforms in the world are
based in the United States.
Initially, my book was titled ``The 26 Words That Changed
the Internet.'' After spending months immersed in section 230's
history, I decided that did not capture the full impact of the
statute. The book is now titled ``The 26 Words That Created the
Internet.''
In its current form, section 230 does not provide absolute
immunity to online platforms. All Federal criminal laws are
explicitly exempt from 230, and platforms are not immune from
civil actions or State criminal prosecutions that arise from
content that the platforms created. Indeed, if the Senate
report and Washington Post coverage about Backpage is true, I
believe that the site never should have been immune under
existing section 230.
If Congress decides to amend section 230 to address online
sex trafficking, it should do so in a manner that severely
punished bad actors while minimizing broader harms to legal
online speech. A section 230 exception should target platforms
that knowingly advertise sex trafficking. Now, defining
``knowingly'' will be important, and it also will be difficult,
as there is not very much precedent in this context, primarily
because we've had 230 on the books for 20 years. Imposing
liability on reckless or negligent conduct could raise concerns
about burdens on speech, so we need to strike the proper
balance there.
Also, States should not subject platforms to a patchwork of
50 different laws. Rather, if Congress creates a section 230
exception, it should craft a national standard providing
companies with clear and certain rules for compliance.
Addressing the liability of public-facing platforms is one
component of a much broader problem. Sex trafficking, like
other online crimes, often occurs on the dark web, out of the
reach of law enforcement. So, in addition to focusing on 230, I
hope that Congress continues to examine crimes in these dark
corners of the internet. I also hope the technology sector,
nonprofits, and law enforcement work together to fight online
sex trafficking, as they successfully have done for child
pornography.
To be clear, this debate does not present us with a binary
choice. Changing section 230 would not cause the internet to
disappear, but the magnitude of any harm to online speech could
vary tremendously depending on the precise wording of any
exceptions.
Now, I've long been an enthusiastic supporter of section
230's free speech protections. I'm a former journalist who's
faced down defamation threats from executives and politicians.
And as a lawyer before I joined the Naval Academy, I advised
media companies on user content liability. I remain convinced
that the statute is essential to preserving the open internet
that Americans know today.
But after spending a year researching a book about 230, my
support for the statute is tempered by the very real and tragic
harms suffered by some victims who cannot get their day in
court. The challenge for all of us will be to combat these
terrible acts, such as online sex trafficking, while preserving
the free internet that section 230 has made possible. And I
believe we can do that.
Thank you.
Mr. Chabot. Thank you very much.
Professor Leary, you are recognized for 5 minutes.
TESTIMONY OF MARY G. LEARY
Ms. Leary. Thank you, Congressman Chabot, Ranking Member
Jackson Lee, and members of the committee, for convening this
hearing to address online sex trafficking and the challenges to
combating it posed by the current interpretation of the
Communications Decency Act. It's an honor to be with you today.
Starting in the year 2000, the United States became a
leader when it passed the Trafficking Victims Protection Act
and its subsequent five reauthorizations. It was with this
legislation that this Congress identified the crime of sex
trafficking and understood it to be a vast and complex criminal
activity.
And Congress designed a comprehensive, multidisciplinary
approach to combat it on all fronts, for Congress understood
then, as it understands now, that human trafficking crosses all
boundaries, preys on thousands of our most vulnerable
citizens--children and vulnerable adults--and that such an
epidemic victimization must be met by an equally comprehensive
response that disrupts the business model, deters the
traffickers and those who partner with them, and makes it a
form of victimization not tolerated in our society.
The legislation from 2000 and the reauthorizations have
many components but three main ones at issue today. First, it
obviously requires strong criminal laws. Secondly, however, it
also has civil liability components which allow victims and
survivors to hold their traffickers accountable in civil courts
and give them access to justice. And, third, it recognizes the
essential role of State and local law enforcement and
prosecutors in early identification and prosecution of sex
trafficking.
Yet, despite this comprehensive and forward-looking
approach, today sex trafficking is on the rise. And one of the
main reasons is the misinterpretation of the well-intended
section 230. This act was designed to provide limited immunity
for the good samaritans Mr. Cox referenced. It's been turned on
its head, as Mr. Chabot has pointed out, because of aggressive
litigation tactics. And courts now have interpreted it, even if
we all feel differently, they've interpreted it as de facto
absolute immunity.
As a result of that, sex trafficking has flourished on the
unregulated internet, with the lure of low-cost, high-profit,
no-risk has brought traffickers to the web. And they have
flocked there to find unscrupulous service companies, not just
Backpage but many others, who are more than willing to
facilitate the sale of people in the public square. And why
wouldn't they, because they can do so with impunity when we
look at how this has played out in the courts.
The results? Well, the numbers are really staggering, and
they are in my written testimony. Let me just draw your
attention to a few of them.
From 2010 and 2015, the National Center for Missing and
Exploited Children experienced an 846-percent increase in
reports of child sex trafficking. Other research has found that
63 percent of human trafficking victims interviewed in that
study were advertised online. Just 2 weeks ago, former Member
and California Attorney General Becerra testified that in his
office almost every sex-trafficking case involved online
marketing.
And it's unfortunate that today we don't have a survivor on
this panel who could share with you, beyond the numbers, the
impact of what he or she has experienced. And while I can't do
that, let me share with you an observation made by Erik Bauer,
who is an attorney for one of these cases, in fact, the only
case that has survived CDA immunity, and that is a civil claim
in Washington State.
He talked about one image that he deals with in his
litigation. And I ask the committee to please forgive any
language, but it's important that we're clear. He talks about
the ad, and it says--the text of the ad is, quote, ``Ass up,
face down. Come see Sheila. $80 special.'' And then Mr. Bauer
notes that Sheila is in seventh grade.
More recently, courts have joined people like Mr. Bauer,
survivors of sex trafficking, and attorneys general in the
chorus that asks Congress to please amend section 230. One
court said, just this summer, after it dismissed a similar case
to the one I just described, ``If and until Congress seeks to
amend the immunity law, the broad range of section 230 even
applies to those alleged to support exploitation from human
trafficking.''
The solution to this problem is to listen to the survivors,
to the victims, to the States' attorneys general, all 50 of
them, who are seeking justice and amend the Communications
Decency Act. And this pending legislation before the House is a
narrowly drafted legislation that succeeds in doing so and
underscores the civil rights action, the important role of
local States' attorneys general and prosecutors, as well as
strong criminal penalties.
I look forward to the questions from the committee.
Mr. Chabot. Thank you very much.
Mr. Engstrom, you're recognized for 5 minutes.
TESTIMONY OF EVAN ENGSTROM
Mr. Engstrom. Chairman Chabot, Ranking Member Jackson Lee,
and members of the committee, thank you for inviting me to
testify. My name is Evan Engstrom. I'm the executive director
of Engine, a nonprofit advocacy and research organization that
works with government and a community of startups throughout
the country to develop public policies that foster innovation,
entrepreneurship, and job creation.
I'm grateful for the opportunity to testify on such an
important and difficult topic, and I appreciate the hard work
that Congress is doing to fight sex trafficking. I cannot claim
to be an expert on combating trafficking, and I certainly
cannot ever comprehend the horrors that trafficking victims
have endured. We must hold those who facilitate these crimes,
like Backpage.com, fully responsible. Trafficking victims and
survivors deserve justice.
In my capacity as an advocate for innovators and
entrepreneurs, the most important thing I can say at the outset
of this hearing is that the community of startups we work with
is fully committed to finding solutions to end online sex
trafficking through a combination of industry initiatives and
government action.
We have concerns about the unforeseen consequences of
recent legislative efforts to address this critical issue.
Nonetheless, we are eager to work with this committee to craft
policies that will help identify and prosecute sex traffickers.
And we have been actively involved, working with Members of
Congress on specific legislative language to accomplish this
goal.
Today, I would like to address three key messages.
First, as you have heard countless times, we simply would
not have the internet or startup community we have today
without section 230 of the Communications Decency Act. Section
230 guarantees that a user-generated content website will not
face company-ending liability whenever a bad actor says
something illegal on its platform. This protection is what
drives innovation in this area.
For startups, there are three things that section 230 does
particularly well. 230 establishes a uniform regulatory regime
rather that a 50-State patchwork. 230 provides a check on
abusive litigation. And perhaps most importantly, 230 empowers
platforms to proactively monitor for objectionable content.
It's also worth reiterating what section 230 does not do.
230 does not give platforms immunity for evaluations of Federal
criminal law, and 230 does not protect a platform from
liability if it develops illegal content.
Section 230 is as valuable today as it was when it was
enacted in 1996. In just the past 5 years, we have seen
startups reinvent the way we share memories, raise funds, find
a spouse, buy a home, and so much more. All of these companies
rely on user-generated content, and section 230 has facilitated
their growth in multiple ways.
Second, tech companies large and small have frequently
partnered with law enforcement, the National Center for Missing
and Exploited Children, and anti-trafficking groups to develop
a range of technologies that help combat trafficking and
support victims. Industry has worked to come up with best
practices for finding trafficking content and has well-
established policies for directing personnel to promptly
investigate and disable access to such content. We intend to
continue this necessary work.
However, it is not possible for a platform that hosts a
significant amount of user-generated content to fully remediate
all illegal content on its site or know with certainty whether
it is being used for trafficking activity. Proposals to address
online trafficking should consider these realities and not
impose ruinous burdens on well-intentioned startups.
Critically, we do not want to discourage platforms from
voluntarily taking on the task of policing their sites for
trafficking content.
Third, we have concerns that recent proposals to change
existing law in order to combat online sex trafficking may have
unintended and unnecessary negative consequences for honest
platforms. While we share the underlying goal of combating
trafficking, our written testimony details our concerns with
the Fight Online Sex Trafficking Act and the Stop Enabling Sex
Traffickers Act and offers suggestions about how to make these
bills function more effectively. We are happy to discuss
details with any Member who is interested.
In conclusion, section 230's protections are critical,
because, despite the best efforts of honest, law-abiding
startups, it is not possible to fully stop bad actors from
doing bad things online. But that doesn't mean we shouldn't
try. This is, after all, what startups do: fix what needs
fixing and find new solutions to difficult problems.
Changes to existing law should be carefully tailored to
address the problem of sex trafficking in the most effective
manner possible while minimizing the negative impact on the
broader internet ecosystem of law-abiding startups and users.
We believe this is an achievable goal, and we hope to work
together to combat trafficking and provide justice for the
victims of this terrible crime.
Thank you.
Mr. Chabot. Thank you very much.
We'll now proceed to the members' time to ask questions.
And, Mr. Cox, I'll begin with you, if I can, here.
It's my understanding States have been impeded from
pursuing criminal charges against Backpage. And there seems to
be this belief that CDA 230 fully preempts State criminal laws.
But that very obviously goes against the plain language of the
statute.
Could you explain why States haven't been able to reach
Backpage on trafficking charges? Have they been able to
prosecute under any other charges? Or any comments that you
could--that you could shed some light on that?
Mr. Cox. Certainly.
First of all, as you point out, the statute's pretty clear.
And the cases that--and this is not, I don't think, dominant in
the case law, but the cases that I object to is when the
authors of the statute and, I think, most of Congress is
befuddled by, because this was something that everyone in
Congress more or less supported. These cases that are in the
minority overlook the fact that, to use Backpage as an example,
that Backpage is alleged to have participated in the creation
of content.
In the Senate report, in the Senate investigative report
that Chairman Portman was responsible for producing, there is
lurid evidence laid out of how extensively Backpage was, in
fact, involved in the creation of advertising, in the editing
of advertising. Even the purpose of the edits was to masquerade
it so that it would be shielded from law enforcement.
This amply goes beyond what the statute says is necessary
to be involved in content creation. The definition of a content
creator in the law makes it plain that, if you participate only
in part--you don't need to be the content creator, but if you
in part develop the content that somebody else created, that's
enough, and you lose your section 230 protection.
So why didn't this work in the most recent case that we're
all aware of in the First Circuit? And the reason it didn't is
laid out in the opinion. The judge says that not only were
these allegations not made in the district court and on appeal
but that the litigants foreswore this theory of the case. And
the same was true in a recent California case decided in
August.
So I would like to be personally of assistance to attorneys
general in pleading their cases, and I think this Congress
could as well. Because if you base the case on the fact that
these people are really--I mean, these websites, some of them
are ongoing criminal enterprises. They're in the business of
this. And it should be a relatively straightforward matter to
make allegations that, not only do they know what they're
doing, but what they are doing is directly what the statute
says vitiates any protection from liability.
Mr. Chabot. Thanks very much.
And I've been advised that our timing devices have gone
down, so I have a minute and 48 seconds left in my 5 minutes.
So, Professor Kosseff, I'll go to you next. Do you think
prosecutors will be able to gather the quantum of evidence they
have on Backpage for the websites that continue in this
business, with respect to the knowledge element? Could they
hold them accountable under the RICO liability, for instance,
promoting prostitution? If you could comment on that, it'd be
appreciated.
Mr. Kosseff. I do think that is a possibility. My
experience is more on the civil law side, but I do think that
there are other avenues. But, I mean, I will say that
particularly the Sacramento court decision did give me pause.
They did not have the full record before them that was from the
Senate report and the Washington Post reporting, and I think
that may have altered the outcome.
Mr. Chabot. Thank you very much.
Professor Leary, I'll go to you next. How does H.R. 1865
clarify the rights of local prosecutors to prosecute sex-
trafficking cases? Do you think there's a risk of a patchwork
of State policies? What are your thoughts there?
Ms. Leary. Thank you, Congressman Chabot.
The bill itself very clearly just exempts from immunity
State criminal prosecutions. Again, a request made by all 50
United States attorneys--excuse me, all 50 attorneys general
from every State, both now and several years ago.
And we don't have a patchwork, because, as it's defined in
the legislation, it mirrors the Federal definition of sex
trafficking and child exploitation. As such, it has narrowed it
to not be inclusive of other regulations that wouldn't fit
under that definition.
And, as this body well knows, this is a common technique
that we see in child pornography legislation, as well as our
trafficking legislation, to narrow State powers. I mean,
Attorney General Becerra, to speak to your earlier question,
Congressman, said his hands are tied.
And if I could just make one other point to my able
colleague to the right, Mr. Cox, make no mistake about it, this
isn't a minority of cases. When we look at just sex-trafficking
cases in a CDA defense, the defense has always won, and it has
always won except in one State-level civil case.
Mr. Chabot. Thank you very much.
My time has expired. The ranking member, the gentlelady
from Texas, Ms. Jackson Lee, is recognized for 5 minutes.
Ms. Jackson Lee. Thank you very much.
And I want to take my 5 minutes to get to all of you, so I
appreciate your brevity in your answers.
Congressman Cox, you worked with now-Senator Wyden on the
230 in the Communications Decency Act, I would say without any
humor, in the early stages of the internet. I think you'll
smile on that. You have history that is important.
But could you just explain--I'm sure there was a sense of
the potential of bad actors and acts occurring. Could you
explain how you tried to strike the balance?
Mr. Cox. Yes. The simple approach of 230 is to protect the
innocent and punish the guilty. So there is absolutely no
effect whatsoever, for starters, on Federal criminal law.
And this is important because the SAVE Act, which this
Congress, you know, very recently enacted and was signed by
President Obama, gives new sex-trafficking prosecutorial tools
to the Department of Justice that are in no way affected by
section 230, by the words of section 230, has no impact on it
whatsoever, and yet not a single prosecution has been brought
under this new law.
Ms. Jackson Lee. Thank you.
Professor Kosseff and maybe Professor Leary at the same
time, Backpage really smeared the value of the internet and
what it does and, as well, damaged and threatened lives, in
terms of fostering some of these very bad acts.
I think the glaring horror of their acts was to teach how
to block law enforcement, whether it was Federal or whether it
was State. Tell me how we pierce that.
And I think, Professor Kosseff, you came to this with a
balance--and Professor Leary--for the value of the internet of
saving lives. These are young girls, boys, LGBTQ persons that
are victimized, and we don't know who has lost their life in
the context of this.
Can you pierce that veil, Professor Kosseff?
Mr. Kosseff. Yes, absolutely. I think--and, again, I had
mentioned the Senate report and the Washington Post article.
And, again, assuming that all of the facts are true, it leaves
no doubt in my mind that this was not just publishing third-
party content as a conduit in any way that would fall under
section 230 as intended or under the 20 years of case law that
we have right now.
So I think there are two ways. First, you could just try to
clarify the purpose of 230. That might not work. And I think
the problem with all of the civil cases--again, I will limit it
to the civil cases--is, frankly, both the pleading requirements
under Iqbal and Twombly as well as the lack of discovery on
these issues that are relevant to 230.
So that's why, I mean, a reasonable, narrowly tailored
exception might be necessary. Because I think it's very hard
for us to--even if you have a company like Backpage, to be able
to overcome these general pleading standards that plaintiffs in
all sorts of cases really very much dislike.
Ms. Jackson Lee. Just very quickly to you, do you think the
civil case was decided correctly in Backpage? And the criminal
case--the civil case, was that decided correctly on Backpage?
Mr. Kosseff. Based on the information we know now, no.
Ms. Jackson Lee. The criminal case, which is----
Mr. Kosseff. No.
Mr. Jackson Lee. Thank you.
Professor Leary, if you want to, how do we pierce that
veil?
Ms. Leary. Well, two comments.
If I could pick up on your last question first, Congressman
Jackson Lee, it's important that we now have all this
information, thanks to The Washington Post and a 20-month
Senate investigation, which was actively thwarted by Backpage.
But let's keep in mind what we're talking about: an immunity
provision. Immunity is not an affirmative defense. Immunity
stops State prosecutors, it stops victims and survivors at the
courthouse door. They cannot even get into the courthouse.
So that's the first veil that needs to be pierced, is they
would never be able to engage in discovery to get this kind of
information. They don't have at their disposal a 20-month
investigation with subpoena power, et cetera, from the United
States Senate.
Secondly, how do we pierce this veil? My colleague Mr. Cox
is absolutely correct, and this Congress has created some
really terrific laws, and many States have copied them. All 50
States have trafficking laws. We can't get to those excellent
laws if we can't get through the CDA. This body of law that has
been created is the obstacle between litigants and prosecutors
and those excellent laws. So we have to resolve that problem.
Ms. Jackson Lee. Let me quickly go to you, Mr. Engstrom,
the last person here. There is a question about patchwork--
there's a question about the patchwork of different laws. And
there's a question about, as I said, saving lives and also what
stands out as the First Amendment. You work on this all the
time. And so, crafting a response, you would see it in what
form?
Mr. Engstrom. Well, as far as the patchwork issue is
concerned, I think we can clarify the language to address that
concern. Professor Leary mentioned that, you know, in the bill,
it is meant to mirror the Federal standard to ensure that
States can't pass a variety of laws that have different rules,
have different penalties, that may or may not be practical. If
it does indeed mirror the Federal law, that obviates that
problem. We don't read the statute that way, and I think that's
a real concern.
Secondly, how do we address the problem? We want to make
sure that the law doesn't disincentivize platforms from doing
the right thing by having an ambiguous knowledge provision that
might hold them responsible if they, you know, are proactively
looking for content, find something, maybe they don't know what
it is, and now they're in a position to say, ``Well, if I'm
going to be held liable for this, then maybe we shouldn't do
this type of policing.'' I think we can craft the language in a
way that obviates that concern, and we're happy to work on it.
Ms. Jackson Lee. Thank you.
I just want to acknowledge that Mr. Raskin, Mr. Lieu, Ms.
Bass, Mr. Deutch, and Mr. Conyers were present at the hearing
today. And thank you.
With that, I thank the witnesses. And this is a tough issue
that we're all going to work on.
And I yield back. Thank you.
Mr. Johnson of Louisiana [presiding]. Thank you.
The gentlelady yields back. I will recognize myself for 5
minutes.
Mr. Cox, a question for you. Are we missing the forest for
the trees here? Why not focus on prosecuting the websites that
can be considered content providers for knowing facilitation of
prostitution, which seems to be more readily provable as an
offense, and why not increase criminal exposure there? Do you
have any thoughts on that?
Mr. Cox. I think you're absolutely right, that, first of
all, we can use the Federal tools that Congress recently
provided--as I mentioned, the SAVE Act. You know, there is a
great deal of emotion that's brought to this. There's a lot of
energy. You know, the country is ready to move on this. And yet
here is the Federal Government, with all these tools, and not
one single prosecution has been brought by the Department of
Justice anywhere in the United States on sex trafficking using
the SAVE Act, which was recently signed into law.
I've proposed additional legislation that's attached to my
testimony. In the Kennedy administration, the Attorney General,
Bobby Kennedy, decided that State governments and State
attorneys general needed help in going after organized crime
that crossed State borders and so on, and we got the Travel
Act. And the Travel Act expressly covers prostitution. What it
doesn't expressly cover is sex trafficking. But prostitution
and sex trafficking are obviously closely related.
By amending the Travel Act in ways that I have proposed and
by including penalties in there that can go up to life in
prison, I think we can make it pretty clear that we're serious
about this, and we can bring prosecutions that are, once
completed, for victims to get restitution so that they don't
have to file their own civil suits.
I've attached, as I say, a proposed draft of such
legislation as an exhibit to my testimony.
Mr. Johnson of Louisiana. Thank you for that.
Mr. Kosseff, do you agree with Mr. Cox that there may be
potential adverse effects of putting carve-outs into the CDA
230? And could a carve-out be preferable in some ways?
Mr. Kosseff. I do. I've thought a lot about what the carve-
outs would look like and not just for sex trafficking but for
other emerging threats that are very serious, such as
terrorists' use of social media. And who knows what the next
threat will be 5 years down the road.
So I think that's why we have to be very careful about how
we view these carve-outs. That's not to say we can't do it, but
I think that it does set a precedent. And, very well, it might
be necessary, but we just do have to be aware of that risk.
Mr. Johnson of Louisiana. Mr. Engstrom, what kinds of
changes would you suggest to any pending legislation to assure
startup companies are sufficiently protected and allowed to
grow?
Mr. Engstrom. So I think the first one we talked about a
little bit before. And I thank you for the question. It's
clarifying what types of laws State authorities can bring. We
want to ensure that there aren't conflicting standards. We want
to make sure that laws that are passed don't create impossible
burdens or disrupt how the internet functions.
It's not a hypothetical threat. We've seen in, I think, two
dozen States proposals to have mandated anti-pornography
filters on devices. It doesn't exist. It can't work. That bill
was designed to prevent human trafficking, so it could
potentially fit under a reading of the statute. I think we can
clarify that.
The second piece is how we define ``knowledge.'' We don't
want to sweep in people that don't actually know of what's
happening on their sites. And we want to encourage them to take
the positive, proactive steps of identifying and remediating
this type of content.
So I think you need to clarify to make sure it's going
after the bad actors who have awareness of this activity but
aren't responding to it, as opposed to those startups that, you
know, are doing the right thing, trying to do the right thing,
but by virtue, you know, of how this content looks online,
maybe not, you know, visibly, immediately recognizable as such,
it puts them in a position where they don't know how to act.
Mr. Johnson of Louisiana. Is there a template or a model
already in Federal statutes on that ``knowledge'' aspect?
Mr. Engstrom. Yeah, so you can look at mirrors in other
types of the law. So, for example, in, like, the copyright
context, the DMCA, you have a notice-and-takedown provision,
where there's a clear way to provide a platform with knowledge
and clear guidelines on how they're meant to respond. In the
child exploitation context, you have very clear guidelines on
who you're supposed to notify.
I think, you know, these laws have language, particularly
in copyright content, that has been the source of considerable
litigation over what ``knowledge'' means. So I think we need to
take those lessons and apply them here and make sure we're
crafting ``knowledge'' in a very clear way that gets at bad
actors and not honest startups.
Mr. Johnson of Louisiana. Thank you for that.
I'm out of time. I recognize Congresswoman Bass for 5
minutes.
I'm sorry. She's not here. Who's next?
Mr. Raskin for 5 minutes.
Oh, Conyers----
Mr. Raskin. Mr. Chair, thank you very much.
Mr. Johnson of Louisiana. I'm sorry. You've got to yield to
Mr. Conyers. Of course.
Mr. Raskin. I will happily yield to the ranking member.
Mr. Johnson of Louisiana. I'm sorry.
Mr. Conyers. Thank you, Mr. Chairman and my friend.
Chris Cox, good to see you again. What do you believe will
happen if we enact legislation that allows States to prosecute
online facilitators of online sex trafficking using different
standards?
Mr. Cox. I think it depends entirely on how it's
accomplished. I think it's a good idea to continue adding
prosecutorial tools. I've suggested one incremental way to do
it in my own testimony. There are other suggestions, as well.
But, as Professor Kosseff has just noted, it's not just
that we have a uniform national policy for the reasons that the
internet is uniquely susceptible to multiple and conflicting
regulations; it's also because it applies section 230 to all
civil and criminal offenses in the United States, Federal and
State.
And so, if we start to have within section 230 itself
substantive standards that are different for one crime versus
another, it's going to beg for relief for other crimes one at a
time. And there are necessarily going to be--until we get to
over 4,000 Federal crimes, there are necessarily going to be
different standards. And that's going to cause judges great
distress in trying to figure out what in the hell Congress
meant by saying there's a different standard now for one crime
than another.
There's one standard in section 230 that applies to all
offenses, and it's really important that it be a clear
standard. The standard is that, if you participate in the
creation of content or the development of content and if you do
it only in part, then you lose any of the protections of
section 230. And that's how we parse the guilty and the
innocent.
I can't think of a better rule. I can think of some better
court decisions than a couple that I've read. But courts don't
all have this wrong, by any means. And I think what we need to
do is recognize that the standard in the law in 230 is the
right standard and then use all of our tools, including
hortatory tools such as amicus curiae briefs and concurrent
resolutions from Congress restating the intent of this law, to
make sure that we help the courts to get it right.
Mr. Conyers. Mr. Engstrom, I'm sure you--well, what do you
believe--or do you believe that either of the proposed bills
will help fight sex trafficking online?
Mr. Engstrom. Thank you for the question, Congressman. I
think you get at a great point.
I think, yes, they will address--they will devote more
resources to online trafficking. With that said, I think we can
craft those bills in a way that they are just as effective at
addressing online trafficking but don't implicate these
unintended consequences.
And we proposed language that would help narrow that and
provide a clearer pathway for honest, law-abiding startups to
know what their obligations are. So, yes, we are, you know,
fully open to working with this committee, with other Members
of Congress on how to make that more effective.
Mr. Conyers. Thank you.
Do you believe a national standard for criminal
prosecutions of online sex-trafficking facilitators like
Backpage.com is necessary?
Mr. Engstrom. I think having a national standard is
necessary. Again, it ensures compliance. It makes it easier for
startups to know their obligations. It prevents conflicting
laws.
I think the existing standard can and should be used to go
after bad actors like Backpage. So, yes, I think, you know, an
important priority for us in any change is ensuring uniformity
and ensuring clarity. And, again, I think the national standard
is a great way to accomplish that.
Mr. Conyers. Thank you.
Professor Kosseff, could you describe the harm to online
speech that you expect to see if either H.R. 1865 or SESTA
become law?
Mr. Kosseff. So what I'd like to do is talk about not just
one specific bill but just any bill that would have any carve-
outs for sex trafficking rather than supporting or opposing a
particular bill.
What I'll say is it really comes down to both, as was
mentioned, having some sort of national standard so that
websites and other platforms don't have to look at 50 different
State laws to make sure they're compliant but also whether it
is, as was discussed, a ``knowingly'' standard, a ``reckless''
standard, ``negligent'' standard.
My real concern here is we do not have case law adequate in
the user-generated context, because for 20 years we haven't had
to look at this. So if I were a lawyer representing a website
and there was a very low standard for what would trigger
liability, I would probably tell them, don't allow user-
generated content even if they have nothing to do with sex
trafficking, unless they're able to monitor.
So I think we just need to be precise and go after the bad
actors. And I think it's possible; you just have to craft it
really carefully.
Mr. Conyers. Thank you so much.
I yield back.
Mr. Johnson of Louisiana. Thank you.
The gentleman yields back. And I recognize Judge Poe for 5
minutes.
Mr. Poe. Thank you, Chairman.
Thank you all for being here.
Sex trafficking, to me, is the national problem dealing
with crime. We should focus this--this issue, I think, is so
big that we should spend a lot of time going after these bad
guys, and then they should do a lot of time in the do-right
hotel, as I called it as a judge.
I have no sympathy and I am sure most people have no
sympathy for these slave owners and slave traders and
especially the slave buyers, the customers. And I think we're
all here today to try to fix this problem the best we can. We
don't want to make it worse or encourage it; we want to try to
fix it.
We have a standard for taking down child pornography
websites, and I think it's working. It seems to me, why can't
we apply that protocol that is used to take down sites that
deal with human sex trafficking? Is that not realistic?
I'll ask Chris--Mr. Cox.
Is that not a realistic idea?
Mr. Cox. It's a splendid idea. And it's consistent with not
only Federal but all 50 State laws, I am certain.
As you describe it, a website that is focused on this
activity is manifestly in the business of doing these things.
And so there is no question that it's involved in the creation
of the content, and, thus, it has no protection under section
230 and ought not to have any.
But, you know, we need to go back and read the statute,
because the statute is very, very clear in this respect. I'm
here as one of the coauthors of the legislation, but, honestly,
you don't need to listen to me about the legislative history.
You know, some judges don't like legislative history. It's too
abstruse. They want to stick to the black letter of the
statute. Well, then read the damn statute, because it is so
clear. And if we enforce the statute the way it's written, we
wouldn't be having this discussion.
Mr. Poe. Do you want to comment, Mr. Engstrom?
Mr. Engstrom. Yes. Thank you so much for the question. You
raise an important point. And I think I want to raise sort of a
technical distinction or at least a clarification that I think
is relevant.
In the context of child exploitation images, it's very easy
to say, this is always illegal. If you have possession of that
image, there's no context in which that's legal. And so
startups and larger platforms do employ tools--there's a
popular one that Microsoft has, PhotoDNA, that matches against
an existing database of these images, so they know, if I see
this, I can remove it.
In the context of other types of speech, it's a little more
difficult because----
Mr. Poe. Because they talk in code.
Mr. Engstrom. They talk in code. There's no backlog of
posts that you can compare this stuff to. Now, we're making
progress, as I understand it, but there's more work to be done,
and it's not as easy----
Mr. Poe. So what's the answer? What is the answer to get
these websites off the internet?
Mr. Engstrom. I think the answer----
Mr. Poe. I mean, Mrs. Wagner's got her solution, and, you
know, there's over 140, 150 Members on her bill.
What do you think the answer is to doing this?
Mr. Engstrom. So I think the answer for taking down
webpages like Backpage is to devote as many resources as we
possibly can, criminal law enforcement resources, to taking
them down. And I think we have tools in the law to do it. I
think we need to make sure we have the gumption and the funding
and the interest necessary to get that done.
The ancillary question is, what do we do about platforms
that aren't trying to facilitate that? If it pops up on their
website and they're unaware of it, or it's a tiny fraction of
their user base that this happens to. I think what we want to
do is empower them to take action in a way that doesn't
implicate liability that could discourage them from doing that.
Mr. Poe. Professor Leary, you used to be a prosecutor,
didn't you?
Ms. Leary. Yes, sir. I did.
Thank you for the question. And I think the analogy to
child pornography is a very apt one, in this regard: We have
made progress with regard to child pornography and child sexual
exploitation primarily because we have not tied the hands of
local prosecutors. So it is a full-court press on child sexual
exploitation images. State prosecutors, attorneys general,
local law enforcement are all empowered. Victims are allowed to
sue in Federal and State court. And multiple pressure points
have yielded some results. The same thing should be true here
in child sexual exploitation.
If I could just comment on one other point, this idea that
there's somehow a confusing standard or the unwitting internet
provider would get caught. Let's be clear: If you are
criminally charged or if you are sued, the party has to have
standing or there has to be a specific case. So a general--
none of the proposed legislation has a general knowledge that
trafficking takes place on your platform would implicate you.
It is knowledge as to the specific act alleged.
And the terms ``knowledge'' and ``reckless,'' which are
part of the House bill, those are clearly defined in the
criminal law. There is not an ambiguity as to what they mean.
And certainly we could wordsmith about the actual statutes, but
there's not an ambiguity.
Thank you.
Mr. Poe. Thank you, Mr. Chairman.
Mr. Johnson of Louisiana. Thank you.
The chair recognizes Mr. Deutch of Florida for 5 minutes.
Mr. Deutch. Thank you, Mr. Chairman.
Mr. Chairman, this is a--it's a really important topic, and
I appreciate the hearing today. I've been working on sex-
trafficking and human-trafficking issues with my colleagues,
Representatives Smith and Trott and Frankel on Foreign Affairs,
and others. But what makes this so important is that it's a
bipartisan issue.
But I can't engage in a conversation about this bipartisan
issue in the absence of any sort of conversation on the
bipartisan issue that we need to be having about gun violence.
And, Mr. Chairman, I--we all were sickened when close to 60
people were slaughtered in Las Vegas and more than 10 times as
many were injured. And this is the Crime Subcommittee. This is
not just the Crime Subcommittee. It is the Subcommittee on
Crime, Terrorism, and Homeland Security. This is the place
where these discussions should start--reasonable discussions,
the kind of discussion that we're having today about sex
trafficking.
But, unfortunately, not only have we not scheduled any
hearings, we took an affirmative step, not the ranking member
and I, but the chairman took the affirmative step of actually
waiving the jurisdiction of this subcommittee with respect to a
piece of legislation that would only make things worse.
And so I ask the question: What is it about the dangerous
gun agenda that the leadership continues to push forward that
prevents us from being able to have a serious discussion about
how to curb gun violence?
Let me just be clear. The bill that this subcommittee
waived jurisdiction on, the Crime Subcommittee, is H.R. 3668.
That's a bill that does at least three things. It's the
silencer deregulation act, which deregulates silencers, makes
it easier to sell silencers across State line to more people
and without background checks. Anyone who watched the horrific
video out of Las Vegas could only imagine what the case
would've been if every one of those guns that that shooter had
had a silencer on it.
But that's not all that this committee choose not even to
hold a hearing on. The bill also contains the armor-piercing
bullets deregulation act, legislation that would make it easier
to manufacturer, import, and sell armor-piercing bullets that
can be used in a handgun, armor-piercing bullets that at
another time we regularly referred to as ``cop killers.''
And, finally, the piece of legislation that this Crime
Subcommittee chose to waive jurisdiction on was what I would
refer to as the easy gun trafficking act, which makes it more
difficult to prosecute gun traffickers by giving them defenses
when they are caught.
All of them in H.R. 3668. All of them waived so that we
could get that bill to the House floor as quickly as possible.
I don't understand this gun agenda. This is not about the
Second Amendment. Those three efforts are not about the Second
Amendment. I don't know whose gun agenda it is. I think we
should probably be clear about one thing, that I'm not sure who
it is in leadership who is most committed to this effort, but I
can only imagine the pressure that was felt when, as I read
just on my way in here, the House leadership chose to show a
modicum of decency and not move forward on these bills this
week or next week in light of the tragic shooting, I can only
imagine the pressure that those who made that decision felt by
outside groups, by the NRA and others whose agenda this is the
fundamental part of.
And so I hope that we have the opportunity to move forward
with a meaningful discussion. I hope we can acknowledge--I hope
we have a chance to have a hearing. And at that hearing on that
bill, we can bring in sheriffs and police chiefs from small
towns and counties across the country, from Portland, Maine, to
Dallas; Rocky Mount, North Carolina, to Vallejo, California;
Glenwood, Minnesota, to Lagrange, Georgia. The International
Association of Chiefs of Police, the Major Cities Chiefs
Association, all of whom have come out opposed to that, and the
Crime Subcommittee would not even give them a voice.
We've blocked reasonable debate for too long. After
tragedies like Las Vegas, I just think that we ought to be able
to find ways to come together in this bipartisan way. I know
that a lot of my colleagues will not share the same views I
have on how we prevent gun violence, but if we can't all commit
to work together to try to eradicate gun violence, then we're
not doing our jobs.
And I yield back.
Mr. Johnson of Louisiana. The gentleman yields back.
The chair recognizes Mr. Rutherford for 5 minutes.
Mr. Rutherford. Thank you, Mr. Chairman.
First of all, thank you, committee, for being here this
morning.
Mr. Cox, let me ask, in your opinion, have any of the
courts gotten this right, in that the way that they have
interpreted CDA 230, is that consistent with the congressional
intent of the statute?
Mr. Cox. Yes, I think that many of the courts have gotten
it right, and they have done so repeatedly. And in my written
testimony, I have laid out many of these cases, which I think
more or less represent the center of gravity in the case law.
But it's important to recognize that the case law is still
developing, and there is, you know, scant case law with respect
to sex trafficking specifically. The standards that are being
used have been developed in any number of contexts, and they
are--in the First Circuit case that was recently decided, a
sex-trafficking case, the precedents that are cited are
developed in non-sex-trafficking contexts.
So what are the courts that have gotten this right saying?
They're saying that, when we find that a web platform has been
involved somehow in influencing the content that shows up on
that website, that they don't have section 230 protection.
There's a case that is quite well-known and has been quite
foundational in the jurisprudence, decided en banc, in the
Ninth Circuit Court of Appeals. Roommates.com was the party in
that case that had been accused of violating essentially civil
rights laws because they told people that they could find
roommates. They didn't tell them exactly what content to
supply, but if you wanted to say, I want my roommate to be a
certain race, you could exclude some people and include others
and so on. And this was facilitated by the design of the
website. So the content was provided by users. They're the ones
that said, oh, I want a roommate of a certain race. But the
design that elicited that content was the responsibility of the
website.
So there's kind of a hard case. The Ninth Circuit decided
it correctly. They said, section 230 offers no protection for
this website. That had been a foundational case that has been
cited repeatedly in subsequent cases and in subsequent
contexts.
The rule is pretty clearly expressed in the law itself. And
there have been some anomalous decisions where the language is
more or less dicta but where they say such things as, you know,
merely editing it doesn't matter. Well, hell, if you edit it,
you've read it.
The paradigm for this law was that there's so much content
going through these portals that no one could really be
expected to read it. But if someone has actually read it and
they've actually edited it, well, then that paradigm doesn't
apply, and that's not what this law is about.
And the cases that have repeatedly gotten this correct are,
in my view, the throw weight of the case law.
Mr. Rutherford. Thank you.
Ms. Leary, would you like to comment on that?
Ms. Leary. Yes, I would like to comment on the Roommates
case. If we were to go through the pleadings in all of these
sex-trafficking cases, I can tell you, in numerous cases of
these, the parties have cited to Roommates, and that has been
rejected in the sex-trafficking context.
So, while I appreciate the fact that there may be some
agreement that Roommates is a good standard or something, the
fact of the matter is that in litigation on the ground the
courts have rejected this.
And I would just like to point out, the CDA was created in
response to what was perceived by Congress as a bad case, the
Prodigy case. And the internet companies and the startups came
to Congress and said, ``Please fix this.'' We are in a----
Mr. Cox. If I may interject, I just need to pierce that
bubble, because that's not how it happened. Literally, no
company talked to Ron or me or anybody in Congress. We did this
on our--this was a congressional initiative. I just mention it
because it's an urban legend.
Mr. Rutherford. Okay. Well, let Ms. Leary----
Ms. Leary. I'm happy to hear that. I can only refer to
the--well, I'm happy to hear that.
What I would say is that, today, we have a similar
situation with victims, States' attorneys general, and
advocates saying, ``These cases are getting it wrong. Congress,
please fix it.'' And we should do so.
Mr. Rutherford. Thank you.
And let me close by just saying that, you know, having
arrested individuals who used this platform to further their
criminal enterprise and go meet young children in homes and
other places throughout our community, I can tell you, when I
read, you know, H.R. 1865 and it shifts to, you know, knowingly
or recklessly publishing that information--look, I'm not
concerned about the incidental--something that pops up on a
provider's site that they know nothing about. But places like
Backpage and others, they know exactly what's going on, and
there is no doubt in anyone's mind. And it's got to stop.
Thank you. I yield back.
Mr. Johnson of Louisiana. Thank you.
The gentleman yields back. The chair recognizes Mr.
Jeffries for 5 minutes.
Mr. Jeffries. I thank the chair for yielding and for your
leadership, as well as the distinguished witnesses for your
presence here today.
I think we can all agree on two things: one, that the
internet has been a tremendous vehicle for growth, innovation,
entrepreneurship, providing information to the American people
in ways that weren't previously accessible. That is a good
thing that should continue to be nurtured and supported.
I think we can also agree that the problem of online sex
trafficking is a tremendous stain on our society and one that
is a scourge that should be addressed by any means necessary in
order to eradicate it, in the context of Backpage.com and
beyond.
And so striking the right balance, it seems to me, is going
to be the approach that's necessary here. And we appreciate
your thoughts in that regard.
Let me start with Congressman Cox.
In the context of the Communications Decency Act, in
particular, section 230, when it was initially enacted, that
was at the infancy of the internet, correct?
Mr. Cox. Yes, that is correct.
Mr. Jeffries. And, sort of, at that moment in time, you
know, there were a lot of unanswered questions as to where, you
know, this new internet phenomenon was going to take us in
society but a desire on behalf of Congress to allow it to grow
and to flourish.
And I think even in the legislation, the stated policy in
section 230 was to promote the continued development of the
internet. Is that right?
Mr. Cox. Yes. That's from the statute.
Mr. Jeffries. And so that was in 1996. Now we're 20-plus
years later. And, you know, there's sort of a body of
practicality in terms of what the internet is and all of its
glorious strengths as well as the downside to how it can be
abused by others, in this case in the context of sex
trafficking.
And so I'm just wondering your thoughts, and then I want to
ask Professor Leary to respond as well. You know, how do we
strike that right balance 20-plus years removed from when it
was understandable to take a hands-off approach to the extent
necessary to allow the internet to really grow and develop and
expand, but now in the context where we clearly have bad actors
who are abusing the internet, where we don't want to allow
their conduct to be shielded, how do we strike that right
balance at this moment, given the uncertainty and the concerns
that we're not where we should be?
Mr. Cox. That's really an excellent question because, you
know, 20 years is an eternity in the world of technology, and
things have really changed. And the biggest thing that's
changed since we wrote this law is that, in 1995, when we first
thought of it, there were 20 million, roughly, people with
access to the internet and now it's billions. And so, now, the
issues that we saw that made the internet unique back in the
nineties are, you know, as big as the broad side of a barn.
What we noticed in 1995 was the difference between these
Usenet groups on the internet, as they were called--and there
were things like CompuServe back then, which were mostly for
computer-type people and so on. And then along came AOL. But
the big difference was that--between, say, a newspaper, where
people, you know, curate the content and they decide what to
publish and they read it and edit and write headlines for it
and so on, on the one hand, and what was going on the internet,
on the other, was that the internet was putting people
together, and people were talking directly to each other
without intermediation. It was just instant communication by
users. And there were literally, at the time, millions of such
people.
So we thought, well, you know, this design that they had in
the CDA, where the FBI is going to look at all these websites
and decide, you know, up front what's good and what isn't and
we'll take care of it that way, that that was just implausible,
that there were too many communications for any set of human
beings to monitor in that way.
And so we came up with a rule that said, all right, then
the people that wrote the communications have to have that
liability, and the people who are trying to monitor it need
some protection for at least the attempt, because we know they
can't get to it all. That was the basis for 230.
What we now have, of course, is the situation of the 1990s,
you know, writ large, because now the volume of traffic is even
much, much greater, and so the need for section 230 is,
likewise, much greater.
But there's something else that's changed, and that's the
proliferation of websites and the proliferation of what, at the
time, were just a handful of people, like AOL and so on. I
mean, back then, you actually got your internet access through
these portals. Now you've got websites that are themselves,
according to court decision, getting the protection of section
230. And that's something that was not in focus clearly in the
1990s.
So what the law needs to do--and this is something that
courts have to do, because it is so fact-dependent. But what
the law has to do a good job of is notice that all these
websites aren't the same. Some of them are, you know, single-
purpose things that do just one thing, like sex trafficking.
And, on the other hand, some of them are, you know, conduits,
they're passthroughs that just have user-generated content that
could be on any topic or what have you and where the website
itself is not participating in that content creation.
So there is always going to be the need for judicial
interpretation. What we have to ask ourselves is, what's the
right rule that we want these courts to apply? And I think we
need to double down, because we know what the right rule is. We
need to make sure the courts get it right.
Mr. Jeffries. Thank you. My time unfortunately has expired.
Mr. Johnson of Louisiana. Thank you.
The gentleman yields back, and the chair recognizes Mrs.
Roby for 5 minutes.
Mrs. Roby. Thank you.
Thank you all for being here. One of the reasons I wanted
to be on this committee was to be able to work on this issue.
And I think we're all here for the right reasons today.
At least 37 human-trafficking cases have been reported in
my home State of Alabama in 2017, according to the National
Human Trafficking Hotline. I'm briefly going to touch on a
human-trafficking case, sex-trafficking case, that occurred in
my district in southeast Alabama. And of note, based on the
reporting at this time and information from the Alabama
Attorney General's office, this was the first conviction of a
human-trafficking/sex-trafficking case that went to trial.
An underage minor was first picked up in Mississippi and
then brought to Tennessee and then eventually taken to Alabama.
It was revealed that this individual had had her picture taken
against her will. It was placed on online websites to set up
arrangements with strangers. The victim told the police that
she had been held against her will, forced to take drugs and
forced to prostitute herself. She was a victim of abuse.
During the trial of this case, the victim said, ``I was
made to prostitute myself,'' was the quote, ``and if I didn't,
it was war.''
It was war. It is war. These are the words of a young
victim, a child, having to fight to survive to overcome these
horrendous circumstances. So I think it's important to go back
to who we're here for, and it's to be the voice for the victims
who can't fight this war on their own. And we all have a
responsibility in this and want to get it right.
Professor Leary, I want to go back to the conversation that
you were having with my colleague, Judge Poe, about the child
pornography cases and how that works. And why you said that it
was working was because States were in a position where they
can prosecute.
The Ann Wagner bill allows for that. And I think what I'm
trying to wrap my mind around, as I sit here and listen to
you--and there are many different views or concerns being
expressed here today. But I think my colleague asked the right
question: If not the Wagner legislation, then what? What are
the other options we have?
And, Chris, I hear what you're saying, is there is a law in
place right now. I think what some of us are grappling with is
that, if an individual or a group of individuals are using
user-content websites--and forgive me if I'm not saying the
techie words right, but--if they're using that, then what is
the answer, if we can't go down this road?
And so I want Professor Leary to maybe dive a little bit
deeper as it relates to how it is working with child
pornography and then allow for some of you others to tell me,
if there's a different solution, what is it.
And maybe help me understand. I've heard by sitting here
listening that you talk about there's so much information,
there's so much data. I wouldn't claim to be able to really
appreciate that, in terms of what that looks like in real
application. But it seems to me that, in some of these
instances, it's quite glaring. So if you could just expound on
that, that would be helpful.
Ms. Leary. Thank you for the question.
And let me be clear. I don't want to paint a picture that
child pornography is not a problem in this country. It clearly
is a significant problem. I was simply pointing to it as an
analogy of a situation where we have a crime that affects the
whole country and we recognize it's on the local, Federal,
State level, it crosses all borders. So what have we done?
We've attacked it on all pressure points--State, local, civil,
federally, criminally, all those ways--and that has been
effective.
Mrs. Roby. So why can't we do that with sex and human
trafficking? That's what I'm trying to understand.
Ms. Leary. And I'm not sure, to answer your question. I
think, back when 230 was created, there was this concern that
the cost would be too much. But there also was not the
Trafficking Victims Protection Act. In fact, trafficking wasn't
even recognized as a crime at that time. So I think that the
problem we have is a law crafted in 1996 dealing with 2017
problems is creating a struggle.
So I think revisiting it--and the Wagner bill, for example,
does try to strike that balance. It doesn't touch the immunity
provision for good actors. It defines a term that has
previously not been defined in Federal criminal law, the
benefits provision, by attaching a ``knowing and reckless''
standard. And it gives effect to what Congress has been trying
to do in the Trafficking Victims Protection Act, which, again,
didn't exist in 1996.
Mrs. Roby. My time has expired, but if I get another 5
minutes, I'll circle back and let others weigh in. We all want
to get to the right solution here.
Mr. Johnson of Louisiana. Thank you.
The gentlelady yields back.
The chair recognizes Mr. Raskin for 5 minutes.
Mr. Raskin. Mr. Chairman, thank you very much.
I want to quickly associate myself with the remarks of Mr.
Deutch. I concur that, the day after the worst mass shooting,
one of the worst acts of terror we've ever seen in the streets
of America, that we should be having a hearing about what we
can be doing in a bipartisan fashion to deal with the
continuing epidemic of gun violence across the country.
But, to the matter at hand, which is also extremely
important, it seems to me that there are several different
issues that are implicated in the various bills before us. One
of them, of course, is the question of what is the legal
standard embodied in the current law, in 230. And Mr. Cox
testifies that that standard is clear, that it's one of
knowledge. That is, if an internet provider or user knows that
content that it's posting----
Mr. Cox. If I may interject, that's not the standard.
Mr. Raskin. Oh, it's not?
Mr. Cox. It's not a knowledge standard.
Mr. Raskin. Well, what is the standard?
Mr. Cox. It's an objective standard. If the website or the
web platform or, as the statute describes it, the interactive
service is involved, if it is a content creator, if it is
involved, in part, in the development of that content, then
that person loses the protection. If it is not--that is to say,
if the content is created wholly by somebody else--then they
are protected.
Mr. Raskin. But so--OK. Then we're getting someplace here.
You're telling me that, if the website owner is fully aware
that content is being placed on there that promotes sex----
Mr. Cox. No. No.
Mr. Raskin. No?
Mr. Cox. No, no, no. So there's no ``knowledge'' standard
in the law. What the law says simply is that--so, in other
words, if you have evidence that the web platform was involved
in creating content, if there is an email from John to Mary and
it says, ``Change this,'' or what have you, that's the sort of
thing that takes away section 230----
Mr. Raskin. OK. So--all right. Your reading of 230 is that
there's absolute immunity that attaches unless it can be shown
that the particular website provider or user itself created the
content.
Mr. Cox. That's one way that you lose the protection. But
another way is that, in part, you were responsible for that.
Somebody else created the content, but you got yourself
involved. And a third way is that----
Mr. Raskin. You mean you participate in the creation of the
content.
Mr. Cox. You participate in the creation of it or--there's
another alternative in the statute--you participate in the
development of it. And then, you know, between creation and
development, there are also two other qualifiers. Even if you
only did it in part and somebody else did the majority of it,
that, too, vitiates the protection.
And so, in that Roommates case that I mentioned, you know,
other people were wholly responsible for creating the content,
but the influence on the content that the web platform was able
to have by virtue of its design was enough to vitiate the
protections of 230.
Mr. Raskin. OK. Well, which is really akin to your second
point, that that's a form of participation in the content----
Mr. Cox. Right.
Mr. Raskin [continuing]. Is structuring it or guiding it--
--
Mr. Cox. Exactly.
Mr. Raskin [continuing]. In a particular way.
Mr. Cox. Exactly.
Mr. Raskin. Well, let me just start with you, then. Why
shouldn't knowledge be enough to withdraw the statutory
immunity that's conferred by 230? In other words, if someone
has a website and they're perfectly cognizant of the fact that
someone is posting content for the purposes of enabling sex
trafficking, why shouldn't it be enough, at that point, to
allow for exposure, whether it's from a Federal or a State
criminal or civil source? Why shouldn't knowledge be enough?
Mr. Cox. Well, in any action, knowledge is a subjective and
fact-based test. So you'd have to litigate----
Mr. Raskin. It's objective and fact-based in the law,
right? In other words, we believe that we can come to a real
conclusion----
Mr. Cox. Yes, there's a----
Mr. Raskin [continuing]. As a matter of fact.
Mr. Cox [continuing]. Result. Of course, there's a result
at the end.
Mr. Raskin. Yeah.
Mr. Cox. The idea is to have a presumption in the law that
if you involve yourself in some aspect of cleaning up the
content on your website that you will be protected to that
extent and that if you involve yourself for any other reason
that you will not be. So that's how we----
Mr. Raskin. Okay. Let me----
Mr. Cox [continuing]. Separate it.
Mr. Raskin [continuing]. Come to--Professor, if I could ask
you this question: Why should--Professor Leary--why should sex
trafficking be treated differently from other extreme and
heinous crimes, like murder for hire or terrorism or going
online in order to, for example, commit gun violence or a gun
massacre? Shouldn't we have one general standard of culpability
that applies, whether it's one of deliberate involvement, which
I think Mr. Cox is suggesting, or one of simple knowledge?
Ms. Leary. Thank you for the question, Congressman Raskin.
That's a real problem. I'll candidly say that to you. But I
think that the situation with sex trafficking is so egregious,
with--that's the body of cases that we really went into--to the
trouble, and that is a particular crime that has been exploding
on the internet. In fact----
Mr. Raskin. But aren't terrorists using the internet also?
Ms. Leary. Oh, they absolutely are, and I'm in no way
suggesting that they aren't. What I'm saying, though, is we
have it documented through the cases that began since 2010, and
this immunity keeps coming up and blocking them. And through
the statistics that are tied--the National Center for Missing
and Exploited Children talks about how that explosion in
statistics is tied to the online trafficking. We have a unique
problem here.
And while I appreciate the concern articulated by you, I
think it's an example of don't throw out the good for the
perfect. If we were going back 10 years and we wanted to
rethink the CDA, I think that would make some sense. But where
we are today, statistically, every time one of these folks is
trafficked, on average, they are raped 10 to 20 times a night.
So the delay here has real human cost. And so covering it
outright here for right now makes some sense.
Mr. Raskin. Do you favor a ``knowledge'' or a
``recklessness'' standard for the--oh, forgive me.
Mr. Rutherford [presiding]. The gentleman's time has
expired.
Mr. Raskin. I yield back.
Mr. Rutherford. Thank you.
However, we will be--with the committee's approval, we're
going to have a second round of questions, if you don't mind.
And I will begin.
And I'd like to ask Professor Kosseff, could H.R. 1865, as
written, have the unintended consequence such as
disincentivizing websites to screen objectionable material to
begin with so that they don't have that ``knowledge'' and
``reckless''----
Mr. Kosseff. Well, again, not speaking about any specific
legislation but just anyability--or any legislation that aims
at the very real issue of sex trafficking, I think that it
depends on how it's crafted.
So if you do have a ``knowledge'' standard--and, I mean,
frankly, what I would really like to have a lot of discussion
with law enforcement about is, what happens when a platform
gets knowledge of a specific act? What can they do? What are
the steps? Should it be taking it down first, then contacting
law enforcement? Contacting law enforcement and then taking it
down? So I think those are the specific discussions.
I think that it really could be incredibly effective. I
just think we need to really get into the particulars of what
actually works. And Professor Leary might have some thoughts,
just based on her time in----
Mr. Rutherford. And I'd like to hear that, Professor Leary.
But I can tell you, coming from a background of law
enforcement, I would like to see--you know, knowingly, they
need to be notified. And law enforcement is very aware of these
things. We can officially document their occurrence, put the
provider on notice that that content is on their site. And then
we can, within the courts, hold them accountable for that
``knowing'' element.
Ms. Leary.
Ms. Leary. Thank you, Congressman Rutherford.
One comment on that--and I agree, the ``knowing'' or the
``' standard accomplish that. Somebody who is unaware of--and
it's not a ``should've been aware of'' standard. They have to
have actual knowledge of the image or actual knowledge of the
risk that this is trafficking in this context.
And let's not divorce ourselves--it's not just the mens rea
sitting out there, ``knowing'' or ``reckless.'' It's
``knowing'' or ``reckless'' conduct. And I think that's
important.
I think, to answer your question, Congressman, we can look
at other industries where they've never had immunity. Let's
take the hotel industry. There is an industry that,
unfortunately, by nature of what their business is, there's
going to be trafficking occurring there. So they've never had
immunity, and we haven't had a slew of lawsuits, we haven't had
a slew of cases.
They have developed best practices to respond to these
scenarios when things come to their attention. In fact, they've
been leaders, in some ways, in training all their employees to
avoid the risk, because they know that if they become aware of
this they could be held liable.
I think we would expect to see the same thing in companies
that are not brick-and-mortar.
Mr. Rutherford. And as a follow-up to some earlier comments
about the problem of sex trafficking for minors, 9,000 to
10,000 cases a year, do you believe that H.R. 1865 will
actually result in fewer of those cases?
Ms. Leary. I think it will result in fewer cases. At least,
that is my hope. And I think it will because it gets at the
companies that, right now, are functioning with de facto
immunity.
And why wouldn't you engage in this behavior? What do
criminals want? They want low risk, they want high profit, and
they want not to get caught. Right now, the way things are set
up, that is the ecosystem for them. I think this increases risk
and, therefore, hopefully, will deter some from engaging in
these kind of joint ventures.
Mr. Rutherford. Thank you very much.
The chair will yield back.
Mr. Raskin, would you like to----
Mr. Raskin. Please. Thank you, Mr. Chair.
Mr. Rutherford. You're recognized for 5 minutes.
Mr. Raskin. I appreciate it.
So, back to the question of what should the standard of
culpability be for the providers or users if we want to revoke
their immunity. And I think everybody should agree that the
immunity generally has been a positive thing in terms of the
development of the internet and the ability of new businesses
to grow. And we're talking about the dark side of that; you
know, what has that meant.
So why not follow what the Supreme Court did in New York
Times v. Sullivan with respect to defamatory speech, saying
that if--there, remember, The New York Times printed ads which
had some minor errors in them and then were sued by, you know,
some of the sheriffs down south, who alleged that they'd been
defamed.
And the Court said that The New York Times, as the
publisher of the information, could only be held liable if they
knew that the content was, itself, defamatory or they were
reckless as to the existence of the defamatory speech, meaning
that they were aware that there was a gross risk, an extreme
risk that what they were about to publish wasn't true.
What would be wrong with using that as the right standard?
And I don't know, Mr. Cox, whether you want to take the
first shot at that.
Mr. Cox. Well, I think, as every Member of Congress knows,
the New York Times v. Sullivan standard is essentially an
outcome-determinative standard. It's extremely difficult to
satisfy that standard. And I think that the responsibility
standard that's in section 230 is a much lighter touch. That is
to say, it's much easier to pierce the----
Mr. Raskin. You think it's easier.
Mr. Cox. Yes, much easier than the New York Times against
Sullivan standard, because if you take a look at--again, back
to the Roommates case, if you take a look at what went on
there, the Roommates.com website credibly said, ``Look, we
didn't tell people what roommates they should have. This is all
their doing.'' And yet, because of the design of the website,
it was held that they were responsible, in part, for the
creation or development of that content.
I think there's a standard there that the courts have
found, you know, very suitable to, you know, pinning the tail
on the responsible party----
Mr. Raskin. Uh-huh. But would you agree that what you're
describing as a design standard would correspond in the
criminal law field to one of deliberate action? There's
negligence, recklessness, knowledge----
Mr. Cox. Well, let me give you another example from other
cases.
Mr. Raskin. Yeah.
Mr. Cox. Other cases have said that where the website, you
know, encouraged the tortious conduct or encouraged the bad
conduct that that was enough.
Mr. Raskin. Sure. And that goes way beyond knowledge to
deliberate participation.
Mr. Cox. But, also, those are cases where, you know, the
defendant would say, ``Look, I didn't write it. I didn't do
it.'' So, you know, in the newspaper context, you know, using
New York Times against Sullivan again, I mean, imagine if the
newspaper didn't even write the article, you know? I mean----
Mr. Raskin. Yeah.
OK. Let me just change the subject quickly, because I just
have a couple minutes left here.
I am troubled also about this question of Federal or State.
And I'm just wondering if any of the panelists have a thought
about--I mean, we could alter the standard in some way but
still confine it to Federal enforcement, or we could maintain
the standard but allow the States and local Governments to get
into it.
And what is the reality of how we're actually going to deal
with the problem of trafficking? Do we need to nationalize this
in this way, by delegating it to thousands of potential law
enforcement entities across the country?
And so, I don't know, Mr. Kosseff?
Mr. Kosseff. So I believe that there's a very strong role
that States can play in addition to the Federal Government,
both on the--particularly on the criminal side--or on the civil
side.
But I think what's necessary for both the State criminal
and civil enforcement, even if they have their own laws, is to
have parameters. And we've had this before, for example, for
ERISA employment discrimination claims, where the State laws
are not preempted if they meet certain elements.
Because that provides some certainty, and, frankly, I think
it makes enforcement more effective than possibly having a
bunch of different requirements, which we've seen in other
areas of technology law that, frankly, just don't accomplish
the ultimate goal as much as having these common elements.
Mr. Raskin. Great.
I think I'm out of time here. I thank you, Mr. Chairman.
Mr. Rutherford. The gentleman yields back.
The chair will now recognize Mrs. Roby of Alabama.
Mrs. Roby. We'll just pick up where we left off. So the
question was, after talking to Professor Leary about the Wagner
bill--and so I guess the question to the rest of the panel is,
if that's not the answer, then what is?
In any order.
Go ahead.
Mr. Engstrom. Sure. So I have thoughts on this.
First, I think it's heartening that I don't think there's a
lot of a gap between what we think a responsible approach to
this is and what some other folks think. So I think there are
things we agree on.
Any State's enforcement of trafficking law should be,
basically, the Federal law.
We don't want to condition a platform's liability or limit
their liability protections based upon any content moderation
practices. Let's maintain the immunity and make sure that
that's clear.
Let's ensure that it's actual knowledge of specific conduct
so you're not holding good actors in a position where, you
know, they don't know when they're liable. I thought the
Congressman's position on, you know, law enforcement putting
the provider on notice--that takes away that concern about when
I have knowledge.
I also want to, you know, be cautious about how much we
want to rely on technology to solve the problem. It's a way you
can identify the range of activities going on on your platform,
but it's far from perfect and it's often, you know, very
difficult to parse.
So, yes, there's a huge volume of data out there, and I
just want to make sure that, you know, however we craft this
proposal--and I think it can be done through, you know,
specific, very narrow fixes--takes that reality into account
and, again, doesn't, you know, condition or limit 230's
protections based upon, you know, deploying particular
technologies, because I think that could be very
counterproductive.
Mr. Kosseff. So I agree with much of what both Mr. Engstrom
and Professor Leary had to say. And I really am heartened that
I think there is a lot of common ground to work from here. This
debate has gotten very heated, and I think that we can sort of
focus on the details of how to sort this out.
A few additional things, not to repeat what they've said.
This whole idea of the technology and how technology could
screen for sex-trafficking ads, I have heard--and I'm not a
technologist, by any means; I'm a lawyer. But I have heard from
both sides about how effective or ineffective technology to
identify sex-trafficking ads could be compared to things like
PhotoDNA for child pornography. I'd like to have a much more
substantive discussion and study on that, and----
Mrs. Roby. You and me both.
Mr. Kosseff. Yes.
Mrs. Roby. I want to understand that, because I think
that's part of what may be a hindrance right now, is not being
able to understand why one is so different from the other.
And so, of course, I'll work with staff here on this
committee but would love any additional information outside of
the testimony you've already provided that could help us with
that and wrap our minds around how that works. Because I, like
you, am a lawyer, not--don't have a deep understanding of the
technology.
Mr. Kosseff. Yeah. So I think that's an important aspect to
figure out.
And I think there are privacy-related concerns that go
along, things like whether ECPA would be triggered if there
were this scanning for certain content. So we'd have to have a
broader discussion about how other statutes interplay with
that.
But, again, I just think more discussions. I think today
has been a great starting point. And also looking at whether we
could get some degree of uniformity. Because, again, I mean, in
the other areas of technology law that I've practiced and
written about, when you have conflicting requirements, that
makes enforcement difficult. And I want enforcement to be as
strong against these culpable sites as possible, and I don't
want any red tape holding it up. So that's really what it comes
down to for me.
Mr. Cox. I just want to pick up on that last point. Right
now, section 230 is a uniform standard. It applies across all
criminal law and all civil law, for torts as well as crimes. If
we go in and we amend section 230 and come up with substantive
standards that relate to the underlying criminal offense and
stick it in that statute, then we've got now the beginnings of
divergent 230 case law.
What you really want to do is the same thing, only do it in
Title 18, where it belongs. And so put a sex-trafficking-
specific tool into Title 18 that accomplishes essentially the
objectives that we're all talking about here. I've attached
language to my testimony that does this. And the vehicle for it
would be 18 U.S.C. section 1952, the Travel Act, which covers
prostitution but doesn't specifically cover sex trafficking.
Amend it to do that, provide for enhanced penalties all the way
up to life in prison, put victim restitution right in there,
and give this, the same Federal tool, then, to the States,
which you can do easily by putting together a joint Federal-
State task force.
All the AGs want to get involved in this. You saw 50 AGs
signed a letter saying that they want to become involved in
this. Put them together in a task force so we get the same
result we've had in child pornography.
I hasten to point out that in child pornography there's not
a carve-out for section 230. So if we're making progress there,
why aren't we making it in sex trafficking? It's because we
haven't had any Federal prosecutions under the SAVE Act. And
it's also because the State prosecutors are running up against
some of these, you know, anomalous barriers where they either
haven't been able to plead or didn't plead the facts properly
and got a bad result. That's been a handful of cases, and
there's clearly a right way to do it.
In this task force, the Department of Justice can make all
the AGs special attorneys general and give them the full power
of the Federal Government to implement Federal statutes. And
that can include not just Title 18; it can be--in fact, they
can do section 5 of the FTC Act on their own even without being
so designated.
When they do this, when they go into court as special
attorneys general appointed under a statute, existing power
that DOJ has to implement both State and Federal law in their
prosecutions, they just zip right through the issues with
respect to section 230, if there are any, because section 230,
on its face, says it has no application to Federal law.
Mrs. Roby. I'm way over my time. Thank you for your
generosity.
Again, just thank you each for being here and your
commitment to wanting to get this right. So thank you.
Mr. Rutherford. Thank you.
And, seeing no further questions, I want to thank the
committee very much for your testimony here today and for
enlightening us.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
This hearing is adjourned.
[Whereupon, at 11:57 a.m., the subcommittee was adjourned.]
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