[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                            OCTOBER 3, 2017


                           Serial No. 115-43


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
    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

          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
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

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
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..................................................


The Honorable Chris Cox, Outside Counsel, NetChoice
    Oral Statement...............................................     6
Mr. Jeff Kosseff, Assistant Professor, United States Naval 
    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



                        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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.

                        DIRECTOR, ENGINE


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.]