[Senate Report 115-199]
[From the U.S. Government Publishing Office]
Calendar No. 292
115th Congress } { Report
2d Session SENATE
} { 115-199
______________________________________________________________________
STOP ENABLING SEX TRAFFICKERS ACT OF 2017
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1693
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
January 10, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2018
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fifteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
DEAN HELLER, Nevada CORY A. BOOKER, New Jersey
JAMES M. INHOFE, Oklahoma TOM UDALL, New Mexico
MIKE LEE, Utah GARY C. PETERS, Michigan
RON JOHNSON, Wisconsin TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West TAMMY DUCKWORTH, Illinois
Virginia
CORY GARDNER, Colorado MARGARETWOODHASSAN,NewHampshire
TODD C. YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Calendar No. 292
115th Congress } { Report
SENATE
2d Session } { 115-199
======================================================================
STOP ENABLING SEX TRAFFICKERS ACT OF 2017
_______
January 10, 2018.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 1693]
[Including Cost Estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1693) to amend the
Communications Act of 1934 to clarify that section 230 of that
Act does not prohibit the enforcement against providers and
users of interactive computer services of Federal and State
criminal and civil law relating to sex trafficking, having
considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill (as amended) do pass.
Purpose of the Bill
S. 1693 would amend Federal law to ensure that section 230
of the Communications Act of 1934\1\ (section 230) does not
prohibit the enforcement of Federal and State criminal and
civil law relating to sex trafficking against providers and
users of interactive computer services (ICSs).
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\1\47 U.S.C. Sec. 230.
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Background and Needs
The Communications Decency Act of 1996 (CDA), enacted as
part of the Telecommunications Act of 1996,\2\ was the first
bill signed into law seeking to regulate obscenity and
indecency on the internet. It was an attempt to address, among
other things, concerns about minors' access to pornography and
other indecent material online. Section 230 (as added by the
CDA), the section central to the discussion around S. 1693,
states that ``no provider or user of an interactive computer
service shall be treated as the publisher or speaker of any
information provided by another information content
provider.''\3\ This provision has had the practical effect of
preventing ICSs from being held liable for the content that
people who use their services create, unless a violation of
Federal criminal law has occurred.
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\2\Public Law 104-104, 110 Stat. 56, 133.
\3\An ``interactive computer service'' is any information service,
system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically a
service or system that provides access to the Internet and such systems
operated or services offered by libraries or educational institutions.
47 U.S.C. Sec. 230(f)(2). This term has been found to include, among
other things, the following: websites (Carafano v. Metrosplash.com
Inc., 207 F.Supp.2d 1055 (C.D. Cal. 2002), affirmed on other grounds,
339 F.3d 1119); website hosting services (Ricci v. Teamsters Union
Local 456, 781 F.3d 25 (2d Cir. 2015)); search engines (Baldino's Lock
& Key Service, Inc. v. Google, Inc., 88 F.Supp.3d 543 (E.D. Va. 2015),
affirmed 624 Fed.Appx. 81, 2015 WL 7888322); and social networking
sites (Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014),
certiorari denied 135 S.Ct. 680).
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Over the years, much of the CDA as originally enacted has
been struck down in court on freedom of speech grounds,\4\ but
section 230 and its liability protections remain. Many have
argued that this section provides an essential underpinning of
the modern internet and is critical to the explosive growth of
websites that facilitate user-generated content.\5\ At the same
time, however, those protections have been held by courts to
shield from civil liability and State criminal prosecution
nefarious actors, such as the website BackPage.com, that are
accused of knowingly facilitating sex trafficking.\6\ S. 1693
would eliminate section 230 as a defense for websites that
knowingly facilitate sex trafficking. It would also empower
State law enforcement to enforce criminal statutes against
websites, and introduce new civil liabilities for violations of
Federal criminal laws relating to sex trafficking.
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\4\See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844
(1997).
\5\See, e.g., Letter from Faiz Shakir, National Political Director,
American Civil Liberties Union, to Hon. John Thune, Chairman, United
States Senate Committee on Commerce, Science, and Transportation, Nov.
7, 2017, available at https://www.aclu.org/letter/aclu-letter-opposing-
sesta.
\6\See, e.g., Jane Doe No. 1 et al., v. BackPage.com, LLC, 817 F.3d
12 (1st Cir. 2016).
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Legislative History
S. 1693 was introduced on August 1, 2017, by Senator
Portman (for himself, Senator Blumenthal, and 23 other original
cosponsors), and was referred to the Committee on Commerce,
Science, and Transportation of the Senate. On September 19,
2017, the Committee held a legislative hearing on the bill. On
November 8, 2017, the Committee met in open Executive Session
and, by voice vote, ordered S. 1693 reported favorably with an
amendment (in the nature of a substitute).
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 1693--Stop Enabling Sex Traffickers Act of 2017
S. 1693 would aim to eliminate legal obstacles to the
successful prosecution of people or entities that violate
federal laws against sex trafficking. As a result, the
government might be able to pursue cases that it otherwise
would not be able to prosecute. CBO expects that the bill would
apply to a relatively small number of offenders, however, so
any increase in costs for law enforcement, court proceedings,
or prison operations would not be significant. Any such
spending would be subject to the availability of appropriated
funds.
Because those prosecuted and convicted under S. 1693 could
be subject to criminal fines, the federal government might
collect additional fines under the bill. Criminal fines are
recorded as revenues, deposited in the Crime Victims Fund, and
later spent without further appropriation action. CBO expects
that any additional revenues and associated direct spending
would not be significant because the legislation would probably
affect only a small number of cases.
Because enacting the bill would affect direct spending and
revenues, pay-as-you-go procedures apply. However, CBO
estimates that any such effects would be insignificant in any
year.
CBO estimates that enacting S. 1693 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 1693 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Regulatory Impact Statement
Because S. 1693 does not create any new programs, the
legislation will have no additional regulatory impact, and will
result in no additional reporting requirements. The legislation
will have no further effect on the number or types of
individuals and businesses regulated, the economic impact of
such regulation, the personal privacy of affected individuals,
or the paperwork required from such individuals and businesses.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section. 1. Short title.
This section would provide that the bill may be cited as
the ``Stop Enabling Sex Traffickers Act of 2017.''
Section 2. Findings.
This section would find the following: that section 230 was
never intended to provide legal protection to websites that
facilitate traffickers in advertising the sale of unlawful sex
acts with sex trafficking victims; and that clarification of
section 230 is warranted to ensure that that section does not
provide such protection to such websites.
Section 3. Ensuring ability to enforce Federal and State criminal and
civil law relating to sex trafficking.
Section 3(a) would amend section 230(b) to declare that it
is the policy of the United States to ensure vigorous
enforcement of Federal criminal and civil law relating to sex
trafficking.
Section 3(a) would further amend section 230(e) to clarify
that nothing in the section should be construed to impair or
limit: (1) any claim in a civil action brought under section
1595 of title 18, United States Code, if the conduct underlying
the claim constitutes a violation of the Federal sex
trafficking statute (18 U.S.C. 1591); or (2) any charge in a
criminal prosecution brought under State law if the conduct
underlying the charge constitutes a violation of the Federal
sex trafficking statute.
The Committee notes that this Act would not abrogate
section 230(c)(2)(A). This provision would ensure that ICSs
cannot be held liable on account of actions taken in good faith
to restrict access to objectionable material. With this
provision preserved, an ICS should not be concerned that it
will face liability for knowingly assisting, supporting, or
facilitating sex trafficking based on its actions to restrict
access to material that violates the Federal sex trafficking
statute. As section 230(c)(2)(A) provides, an ICS would not
have their good faith efforts to restrict access to
objectionable content used against them.
If a plaintiff shows that an ICS is knowingly assisting,
supporting, or facilitating sex trafficking, then the ICS
cannot avoid liability by characterizing those actions as
efforts to remove objectionable material. For example, if a
website screens advertisements in an effort to remove
objectionable material, but then merely edits illegal
advertisements to make them more difficult for law enforcement
to identify, or knowingly assists, supports, or facilitates sex
trafficking, then even an ICS's efforts to remove objectionable
content are no bar to liability. Section 230(c)(2)(A) was never
intended to, and does not, pose a barrier to liability on these
facts.
Section 3(b) would establish that the amendments made by
this section would take effect on the date of enactment of this
Act, and that the specific amendment to section 230 related to
allowing State criminal prosecution or civil enforcement
actions would apply regardless of when the alleged conduct
occurred.
Section 4. Ensuring Federal liability for publishing information
designed to facilitate sex trafficking or otherwise
facilitating sex trafficking.
This section would amend the Federal sex trafficking
statute to clarify that ``participation in a venture'' means
``knowingly assisting, supporting, or facilitating a
violation'' of subsection (a)(1) of that statute.
Section 5. Actions by State Attorneys General.
This section would amend the Federal civil remedy statute
for sex trafficking (18 U.S.C. 1595) to clarify that the
attorney general of a State may, as parens patriae, bring a
civil action against a violator of the Federal sex trafficking
statute on behalf of the residents of that State in an
appropriate district court of the United States.
Section 6. Savings clause.
This section would establish that nothing in this Act or
the amendments made by this Act is intended to limit: (1) any
claim or cause of action under Federal law that was filed, or
could have been filed, before the date of enactment of this
Act; or (2) any claim or cause of action under State law,
including statutory and common law, that was filed or could
have been filed before the date of enactment of this Act, and
that was not preempted by section 230.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 77. PEONAGE, SLAVERY, AND TRAFFICKING IN PERSONS
Sec. 1591. Sex trafficking of children or by force, fraud, or coercion
(a) Whoever knowingly--
(1) in or affecting interstate or foreign commerce,
or within the special maritime and territorial
jurisdiction of the United States, recruits, entices,
harbors, transports, provides, obtains, advertises,
maintains, patronizes, or solicits by any means a
person; or
(2) benefits, financially or by receiving anything of
value, from participation in a venture which has
engaged in an act described in violation of paragraph
(1),
knowing, or, except where the act constituting the
violation of paragraph (1) is advertising, in reckless
disregard of the fact, that means of force, threats of
force, fraud, coercion described in subsection (e)(2),
or any combination of such means will be used to cause
the person to engage in a commercial sex act, or that
the person has not attained the age of 18 years and
will be caused to engage in a commercial sex act, shall
be punished as provided in subsection (b).
(b) The punishment for an offense under subsection (a) is--
(1) if the offense was effected by means of force,
threats of force, fraud, or coercion described in
subsection (e)(2), or by any combination of such means,
or if the person recruited, enticed, harbored,
transported, provided, obtained, advertised,
patronized, or solicited had not attained the age of 14
years at the time of such offense, by a fine under this
title and imprisonment for any term of years not less
than 15 or for life; or
(2) if the offense was not so effected, and the
person recruited, enticed, harbored, transported,
provided, obtained, advertised, patronized, or
solicited had attained the age of 14 years but had not
attained the age of 18 years at the time of such
offense, by a fine under this title and imprisonment
for not less than 10 years or for life.
(c) In a prosecution under subsection (a)(1) in which the
defendant had a reasonable opportunity to observe the person so
recruited, enticed, harbored, transported, provided, obtained,
maintained, patronized, or solicited, the Government need not
prove that the defendant knew, or recklessly disregarded the
fact, that the person had not attained the age of 18 years.
(d) Whoever obstructs, attempts to obstruct, or in any way
interferes with or prevents the enforcement of this section,
shall be fined under this title, imprisoned for a term not to
exceed 20 years, or both.
(e) In this section:
(1) The term ``abuse or threatened abuse of law or
legal process'' means the use or threatened use of a
law or legal process, whether administrative, civil, or
criminal, in any manner or for any purpose for which
the law was not designed, in order to exert pressure on
another person to cause that person to take some action
or refrain from taking some action.
(2) The term ``coercion'' means--
(A) threats of serious harm to or physical
restraint against any person;
(B) any scheme, plan, or pattern intended to
cause a person to believe that failure to
perform an act would result in serious harm to
or physical restraint against any person; or
(C) the abuse or threatened abuse of law or
the legal process.
(3) The term ``commercial sex act'' means any sex
act, on account of which anything of value is given to
or received by any person.
(4) The term ``participation in a venture'' means
knowingly assisting, supporting, or facilitating a
violation of subsection (a)(1).
[(4)](5) The term ``serious harm'' means any harm,
whether physical or nonphysical, including
psychological, financial, or reputational harm, that is
sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the
same background and in the same circumstances to
perform or to continue performing commercial sexual
activity in order to avoid incurring that harm.
[(5)](6) The term ``venture'' means any group of two
or more individuals associated in fact, whether or not
a legal entity.
Sec. 1595. Civil remedy
(a) An individual who is a victim of a violation of this
chapter may bring a civil action against the perpetrator (or
whoever knowingly benefits, financially or by receiving
anything of value from participation in a venture which that
person knew or should have known has engaged in an act in
violation of this chapter) in an appropriate district court of
the United States and may recover damages and reasonable
attorneys fees.
(b)
(1) Any civil action filed under [this section]
subsection (a) shall be stayed during the pendency of
any criminal action arising out of the same occurrence
in which the claimant is the victim.
(2) In this subsection, a ``criminal action''
includes investigation and prosecution and is pending
until final adjudication in the trial court.
(c) No action may be maintained under [this section]
subsection (a) unless it is commenced not later than the later
of--
(1) 10 years after the cause of action arose; or
(2) 10 years after the victim reaches 18 years of
age, if the victim was a minor at the time of the
alleged offense.
(d) In any case in which the attorney general of a State has
reason to believe that an interest of the residents of that
State has been or is threatened or adversely affected by any
person who violates section 1591, the attorney general of the
State, as parens patriae, may bring a civil action against such
person on behalf of the residents of the State in an
appropriate district court of the United States to obtain
appropriate relief.
COMMUNICATIONS ACT OF 1934
[47 U.S.C. 151 et seq.]
SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE
MATERIAL.
[47 U.S.C. 230]
(a) Findings.--The Congress finds the following:
(1) The rapidly developing array of Internet and
other interactive computer services available to
individual Americans represent an extraordinary advance
in the availability of educational and informational
resources to our citizens.
(2) These services offer users a great degree of
control over the information that they receive, as well
as the potential for even greater control in the future
as technology develops.
(3) The Internet and other interactive computer
services offer a forum for a true diversity of
political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual
activity.
(4) The Internet and other interactive computer
services have flourished, to the benefit of all
Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive
media for a variety of political, educational,
cultural, and entertainment services.
(b) Policy.--It is the policy of the United States--
(1) to promote the continued development of the
Internet and other interactive computer services and
other interactive media;
(2) to preserve the vibrant and competitive free
market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or
State regulation;
(3) to encourage the development of technologies
which maximize user control over what information is
received by individuals, families, and schools who use
the Internet and other interactive computer services;
(4) to remove disincentives for the development and
utilization of blocking and filtering technologies that
empower parents to restrict their children's access to
objectionable or inappropriate online material; [and]
(5) to ensure vigorous enforcement of Federal
criminal laws to deter and punish trafficking in
obscenity, stalking, and harassment by means of
computer[.]; and
(6) to ensure vigorous enforcement of Federal
criminal and civil law relating to sex trafficking.
(c) Protection for ``Good Samaritan'' Blocking and Screening
of Offensive Material.--
(1) Treatment of publisher or speaker.--No provider
or user of an interactive computer service shall be
treated as the publisher or speaker of any information
provided by another information content provider.
(2) Civil liability.--No provider or user of an
interactive computer service shall be held liable on
account of--
(A) any action voluntarily taken in good
faith to restrict access to or availability of
material that the provider or user considers to
be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise
objectionable, whether or not such material is
constitutionally protected; or
(B) any action taken to enable or make
available to information content providers or
others the technical means to restrict access
to material described in paragraph (1).
(d) Obligations of Interactive Computer Service.--A provider
of interactive computer service shall, at the time of entering
an agreement with a customer for the provision of interactive
computer service and in a manner deemed appropriate by the
provider, notify such customer that parental control
protections (such as computer hardware, software, or filtering
services) are commercially available that may assist the
customer in limiting access to material that is harmful to
minors. Such notice shall identify, or provide the customer
with access to information identifying, current providers of
such protections.
(e) Effect on Other Laws.--
(1) No effect on criminal law.--Nothing in this
section shall be construed to impair the enforcement of
section 223 or 231 of this Act, chapter 71 (relating to
obscenity) or 110 (relating to sexual exploitation of
children) of title 18, United States Code, or any other
Federal criminal statute.
(2) No effect on intellectual property law.--Nothing
in this section shall be construed to limit or expand
any law pertaining to intellectual property.
(3) State law.--Nothing in this section shall be
construed to prevent any State from enforcing any State
law that is consistent with this section. No cause of
action may be brought and no liability may be imposed
under any State or local law that is inconsistent with
this section.
(4) No effect on communications privacy law.--Nothing
in this section shall be construed to limit the
application of the Electronic Communications Privacy
Act of 1986 or any of the amendments made by such Act,
or any similar State law.
(5) No effect on sex trafficking law.--Nothing in
this section (other than subsection (c)(2)(A)) shall be
construed to impair or limit--
(A) any claim in a civil action brought under
section 1595 of title 18, United States Code,
if the conduct underlying the claim constitutes
a violation of section 1591 of that title; or
(B) any charge in a criminal prosecution
brought under State law if the conduct
underlying the charge constitutes a violation
of section 1591 of title 18, United States
Code.
(f) Definitions.--As used in this section:
(1) Internet.--The term ``Internet'' means the
international computer network of both Federal and non-
Federal interoperable packet switched data networks.
(2) Interactive computer service.--The term
``interactive computer service'' means any information
service, system, or access software provider that
provides or enables computer access by multiple users
to a computer server, including specifically a service
or system that provides access to the Internet and such
systems operated or services offered by libraries or
educational institutions.
(3) Information content provider.--The term
``information content provider'' means any person or
entity that is responsible, in whole or in part, for
the creation or development of information provided
through the Internet or any other interactive computer
service.
(4) Access software provider.--The term ``access
software provider'' means a provider of software
(including client or server software), or enabling
tools that do any one or more of the following:
(A) filter, screen, allow, or disallow
content;
(B) pick, choose, analyze, or digest content;
or
(C) transmit, receive, display, forward,
cache, search, subset, organize, reorganize, or
translate content.
[all]