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[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).
---------------------------------------------------------------------------
    \1\47 U.S.C. Sec. 230.
---------------------------------------------------------------------------

                          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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                          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]
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