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THE LATEST DEVELOPMENTS IN COMBATING 

ONLINE SEX TRAFFICKING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS AND 

TECHNOLOGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 30, 2017 

Serial No. 115–84 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

GREG WALDEN, Oregon 

Chairman 

JOE BARTON, Texas 

Vice Chairman 

FRED UPTON, Michigan 

JOHN SHIMKUS, Illinois 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

JEFF DUNCAN, South Carolina 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

RAUL RUIZ, California 

SCOTT H. PETERS, California 

DEBBIE DINGELL, Michigan 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

MARSHA BLACKBURN, Tennessee 

Chairman 

LEONARD LANCE, New Jersey 

Vice Chairman 

JOHN SHIMKUS, Illinois 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

ADAM KINZINGER, Illinois 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

BILL FLORES, Texas 

SUSAN W. BROOKS, Tennessee 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

GREG WALDEN, Oregon (ex officio) 

MICHAEL F. DOYLE, Pennsylvania 

Ranking Member 

PETER WELCH, Vermont 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

RAUL RUIZ, California 

DEBBIE DINGELL, Michigan 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

JERRY MCNERNEY, California 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 2 

Prepared statement .......................................................................................... 3 

Hon. Michael F. Doyle, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 3 

Prepared statement .......................................................................................... 5 

Hon. Susan W. Brooks, a Representative in Congress from the State of 

Indiana, opening statement ................................................................................. 5 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, prepared statement ........................................................................ 75 

Hon. David B. McKinley, a Representative in Congress from the State of 

West Virginia, prepared statement .................................................................... 75 

WITNESSES

Hon. Ann Wagner, a Representative in Congress from the State of Missouri ... 6 

Prepared statement .......................................................................................... 9 

Yiota G. Souras, Senior Vice President and General Counsel, National Center 

for Missing and Exploited Children .................................................................... 17 

Prepared statement .......................................................................................... 20 

Derri Smith, Chief Executive Officer, End Slavery Tennessee ............................ 29 

Prepared statement .......................................................................................... 31 

Russ Winkler, Special Agent in Charge, Tennessee Bureau of Investigation .... 35 

Prepared statement .......................................................................................... 37 

Eric Goldman, Professor, Santa Clara University School of Law ........................ 44 

Prepared statement .......................................................................................... 46 

SUBMITTED MATERIAL

H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking 

Act of 2017, submitted by Mrs. Blackburn ........................................................ 76 

Letter of November 27, 2017, from Alexandra F. Levy, University of Notre 

Dame Law School, to Mrs. Blackburn and Mr. Doyle, submitted by Mr. 

Doyle ..................................................................................................................... 82 

Response to Online Sex Trafficking and the Communications Decency Act 

hearing, Shared Hope International, et al., October 3, 2017, submitted 

by Mrs. Blackburn ................................................................................................ 84 

Letter of November 27, 2017, from Shared Hope International, et al., to 

Mrs. Blackburn, submitted by Mrs. Blackburn ................................................. 93 

Article, ‘‘Wyden blocks bill to stop online sex trafficking,’’ by Rebecca Bender, 

The Register-Guard, November 30, 2017, submitted by Mrs. Blackburn ....... 95 

Letter of April 3, 2012, from Mrs. Blackburn and Hon. Carolyn B. Maloney 

to Larry Page, Chief Executive Officer, Google, Inc., submitted by Mrs. 

Blackburn ............................................................................................................. 99 

Letter of November 30. 2017, from Chris Cox, Outside Counsel, NetChoice, 

to Mrs. Blackburn and Mr. Doyle, submitted by Mrs. Blackburn ................... 101 

Article, ‘‘Congress must stop sex trafficking on the internet,’’ by Mrs. Blackburn, The Tennessean, November 29, 2017, submitted by Mrs. Blackburn ... 121 

(1) 

THE LATEST DEVELOPMENTS IN COMBATING 

ONLINE SEX TRAFFICKING 

THURSDAY, NOVEMBER 30, 2017 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 2:22 p.m., in Room 

2123, Rayburn House Office Building, Hon. Marsha Blackburn 

(chairman of the subcommittee) presiding. 

Members present: Representatives Blackburn, Lance, Latta, 

Guthrie, Olson, Kinzinger, Bilirakis, Johnson, Long, Flores, Brooks, 

Collins, Walters, Costello, Doyle, Welch, Loebsack, Ruiz, Rush, 

Eshoo, Engel, Butterfield, Matsui, and McNerney. 

Staff present: Jon Adame, Policy Coordinator, Communications 

and Technology; Ray Baum, Staff Director; Kelly Collins, Staff Assistant; Robin Colwell, Chief Counsel, Communications and Technology; Sean Farrell, Professional Staff Member, Communications 

and Technology; Adam Fromm, Director of Outreach and Coalitions; Gene Fullano, Detailee, Communications and Technology; 

Elena Hernandez, Press Secretary; Paul Jackson, Professional Staff 

Member, Digital Commerce and Consumer Protection; Tim Kurth, 

Senior Professional Staff Member, Communications and Technology; Lauren McCarty, Counsel, Communications and Technology; Alex Miller, Video Production Aide and Press Assistant; 

Evan Viau, Legislative Clerk, Communications and Technology; 

Jessica Wilkerson, Professional Staff Member, Oversight and Investigations; Everett Winnick, Director of Information Technology; 

David Goldman, Minority Chief Counsel, Communications and 

Technology; Jerry Leverich, Minority Counsel; Dan Miller, Minority 

Policy Analyst; and Tim Robinson, Minority Chief Counsel. 

Mrs. BLACKBURN. The Subcommittee on Communications and 

Technology will now come to order. 

I am sorry that we are a few minutes late in beginning, but we 

have this thing we have to do around here called votes. And we did 

have a vote on the floor and, in the middle of it, a colloquy concerning our schedule. 

At this time, I recognize myself for 5 minutes for an opening 

statement. 

2 

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Good afternoon, and a warm welcome to each of our witnesses 

who are going to join us today. We are here on what has turned 

out to be an absolutely gorgeous day in Washington, DC, but we 

are here to talk about a very ugly, sordid subject, and that is online 

sex trafficking or, as the name of Ms. Smith’s organization describes it more bluntly, slavery. 

As the stings and headlines continue to proliferate, those who 

thought that slavery was something that could never happen in 

2017 America have had to confront the terrifying reality that not 

only is it happening, it is on the rise. And it is on the rise in large 

part because the internet, the technological masterpiece of our 

time, has made it much easier to do. 

In both the House and the Senate this year, we are facing up to 

the challenge with a long-overdue conversation, driving toward effective action. With this hearing, it is my hope that the Communications and Technology Subcommittee, with our particular focus, 

will add some valuable perspective about exactly what is going 

wrong and what is going right on the tech side as the lowest of the 

low harness the power of the internet to enslave and exploit our 

children. 

I am so very pleased that Ms. Smith and Mr. Winkler have been 

able to join us today to tell their stories of how Tennessee has been 

impacted by this abhorrent crime. Like so many of the districts 

that my colleagues represent, our home has been invaded by criminals luring in vulnerable women and children and forcing them 

into a life of sex slavery and unspeakable abuse. 

I know that you both share my deep sadness and absolute outrage that this is happening in our backyard. And I cannot thank 

you enough for rescuing the victims, then helping them heal while 

seeking justice for their abusers. You are doing a superlative job. 

For the fifth year in a row—get this—Tennessee received an A 

on its report card in the Protected Innocence Challenge, a comprehensive annual study of existing State laws. And this is compiled by Shared Hope International. The challenge produces State 

report cards that rate how effectively each State responds to the 

crime of domestic minor sex trafficking. 

After 4 years of straight A’s, Tennessee outdid itself this year by 

leading the rankings, number one in the country. What a testimony 

to the partnership between Tennessee law enforcement and victim 

advocates that you have built and grown together over the years. 

We are honored that you are taking time away. 

The legislative debate this year has focused on amendments to 

section 230 of the Communications Decency Act, which law enforcement has consistently identified as a barrier preventing effective 

prosecution of online entities that facilitate trafficking and adequate recourse for trafficking victims. 

Today, we welcome my colleague and dear friend, Ann Wagner, 

who is leading this charge in the House. I look forward to hearing 

her testimony about her efforts to find an effective approach to attack and defeat this problem. She has been a passionate and tireless advocate, and I am proud to be a cosponsor of her bill. 

3 

I also want to welcome and we look forward to hearing the concerns and the perspective of Ms. Souras and Mr. Goldman as we 

consider next steps. With so many women and children waiting on 

us and counting on us, doing nothing is not an option. 

[The prepared statement of Mrs. Blackburn follows:] 

PREPARED STATEMENT OF HON. MARSHA BLACKBURN

Good afternoon and a warm welcome to all of our witnesses. We have come here 

together on this beautiful afternoon to talk about a very ugly subject: online sex 

trafficking, or as the name of Ms. Smith’s organization describes it more bluntly, 

slavery. As the stings and the headlines continue to proliferate, those who thought 

that slavery was something that could never happen in 2017 America, have had to 

confront the terrifying reality that not only is it happening, it is on the rise. And 

it is on the rise in large part because the Internet, the technological masterpiece 

of our time, has made it much, much easier to do. In both the House and the Senate 

this year, we are facing up to the challenge with a long overdue conversation driving 

toward effective action. With this hearing, it is my hope that the Communications 

and Technology Subcommittee, with our particular focus, will add some valuable 

perspective about exactly what is going wrong and what is going right on the tech 

side as the lowest of the low harness the power of the Internet to enslave and exploit our children. 

I am so very pleased that Ms. Smith and Mr. Winkle have been able to join us 

today to tell their stories of how Tennessee has been impacted by this abhorrent 

crime. Like so many of the districts that my colleagues here represent, our home 

has been invaded by criminals luring in vulnerable women and children, and forcing 

them into a life of sex slavery and unspeakable abuse. I know that you both share 

my deep sadness and outrage that this is happening in our own backyard, and I 

cannot thank you enough for rescuing these victims, then helping them heal while 

seeking justice for the abusers. You are truly doing the Lord’s work. 

And you are doing a superlative job of it. For the fifth year in a row, Tennessee 

received an ‘‘A’’ on its report card in the Protected Innocence Challenge, a comprehensive annual study of existing State laws conducted by Shared Hope International. The challenge produces State report cards that rate how effectively each 

State responds to the crime of domestic minor sex trafficking. After four years of 

straight A’s, Tennessee outdid itself this year by leading the rankings, #1 in the 

country. What a testimony to the partnership between Tennessee law enforcement 

and victim advocates that you have built and grown together over the years. We 

are honored that you would take time away from your important work to give us 

the latest perspective from the front lines. 

The legislative debate this year has focused on amendments to section 230 of the 

Communications Decency Act, which law enforcement has consistently identified as 

a barrier preventing effective prosecution of online entities that facilitate trafficking, 

and adequate recourse for trafficking victims. Today we welcome my colleague and 

dear friend Mrs. Wagner, who has led the charge in the House. I look forward to 

hearing her testimony about her efforts to find an effective approach to attack this 

problem we are all facing. She has been a passionate and tireless advocate, and I 

am proud to be a cosponsor of her bill. And I also look forward to hearing the perspectives and concerns of Ms. Souras and Mr. Goldman as we consider our next 

step. With so many women and children waiting on us and counting on us, standing 

still is not an option. 

Mrs. BLACKBURN. At this time, I yield back my time, and I recognize Mr. Doyle for 5 minutes. 

OPENING STATEMENT OF HON. MICHAEL F. DOYLE, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF PENNSYLVANIA 

Mr. DOYLE. Thank you, Madam Chair, for holding this important 

hearing. 

And thank you to the witnesses for appearing before us today. 

Human trafficking in all its forms and, in particular, sexual trafficking of children and adults is an abhorrent crime. I want to 

4 

thank the witnesses here today from End Slavery Tennessee, the 

National Center for Missing and Exploited Children, and the Tennessee Bureau of Investigation. This is hard work that you all do, 

and I know that it carries a heavy burden. For my part, I want to 

thank you for your efforts and the efforts of your organizations. Be 

assured this is an issue of great concern to all of us. 

I also want to thank Representative Wagner for testifying before 

us today. I understand that this is an issue that you have been 

working on for some time and that the SAVE Act that you wrote, 

and which has become law, is starting to be used to combat online 

sex trafficking. 

I also understand that, in reference to the bill before us today, 

you are working with Chairman Goodlatte on an amendment in the 

nature of a substitute to your bill and hope that it will be marked 

up in the Judiciary Committee. I am hopeful that you will be able 

to move your amended bill out of committee and before the full 

House for a vote. 

I also want to acknowledge the good work being done by Senators McCaskill and Portman and the Senate’s Permanent Subcommittee on Investigations in the investigation and report they 

released on Backpage.com. This report is truly frightening. The report alleges that Backpage knowingly facilitated child sex trafficking. 

I am deeply concerned about emails sent by Backpage moderators seeking to limit the number of ads they were reporting to 

NCMEC on a monthly basis. In addition, according to the report, 

Backpage repeatedly edited and altered ads by deleting words, 

phrases, and images that would indicate child sex trafficking without reporting those ads to NCMEC or other authorities. Again, according to this report, these edits were done for the express purpose of concealing the illegal nature of these activities. 

Backpage went so far as to deploy software that automatically 

deleted terms from ads before publication, words such as ‘‘AMBER 

Alert,’’ ‘‘rape,’’ ‘‘young,’’ and ‘‘fresh.’’ This filter was apparently deployed for the purpose of concealing the true nature of the transactions that were occurring on the site. 

The report goes on to say that, by Backpage’s own internal estimates, they were editing between 70 to 80 percent of the ads in the 

adult section of their site. 

Backpage would go on to start rejecting ads that contained these 

words, but then they would do so with a popup that would include 

explicit instructions for advertisers as to what the offending word 

or phrase was and how they could repost their ad to get around 

Backpage’s filters. 

Backpage used similar techniques when advertisers posted ads 

identifying people as under 18, simply instructing users to change 

the posted age in order for the ad to be posted. 

To my mind, this report indicates a vast criminal enterprise. I 

am heartened by reports that there are potentially multiple Federal investigations using insights from the Senate report and an 

impaneled grand jury. My hope is that justice can be done. 

Madam Chair, I thank you for this hearing, and I yield back. 

[The prepared statement of Mr. Doyle follows:] 

5 

PREPARED STATEMENT OF HON. MICHAEL F. DOYLE

Thank you madam chairman for holding this important hearing, and thank you 

to the witnesses for appearing before us today. 

Human trafficking in all its forms—and in particular sexual trafficking of children 

and adults—is an abhorrent crime. I want to thank the witnesses here today from 

End Slavery Tennessee, the National Center for Missing and Exploited Children, 

and the Tennessee Bureau of Investigation. This is hard work that you all do, and 

I know it carries a heavy burden. For my part, I want to thank you for your efforts 

and the efforts of your organizations. This is an issue of great concern to us all. 

I’d also like to thank Representative Wagner for testifying before us today. I understand that this is an issue that you have been working on for some time—and 

that the SAVE Act that you wrote and which has become law is starting to be used 

to combat online sex trafficking. 

I also understand that in reference to the bill before us today, you are working 

with Chairman Goodlatte on an Amendment in the Nature of a Substitute to your 

bill and that you hope it will be marked up in Judiciary Committee. I am hopeful 

that you will be able to move your amended bill out of committee and before the 

full House for a vote. 

I also want to acknowledge the good work done by Senators McCaskill and 

Portman and the Senate’s Permanent Subcommittee on Investigations in the investigation and the report they released on Backpage.com. The report is truly frightening. The report alleges that Backpage knowingly facilitated child sex trafficking. 

I am deeply concerned about emails sent by Backpage moderators seeking to limit 

the number of ads they were reporting to NIC–MEC on a monthly basis and efforts 

by the company. In addition, according to the report Backpage repeatedly edited and 

altered ads by deleting words, phrases, and images that would indicate child sex 

trafficking without reporting those ads to NIC–MEC or other authorities. Again according to this report, these edits were done for the express purpose of concealing 

the illegal nature of these activities. Backpage went so far as to deploy software that 

automatically deleted terms from ads before publication, words such as amber alert, 

rape, young, and fresh. This filter was apparently deployed for the purpose of concealing the true nature of the transactions that were occurring on the site. 

The report goes on to say that by Backpage’s own internal estimates they were 

editing between 70–80 percent of ads in the Adult section of their site. 

Backpage would go on to start rejecting ads that contained these words, but do 

so with a pop-up that would include explicit instructions for advertisers as to what 

the offending word or phrase was and how to repost their ad to get around 

Backpage’s filters. Backpage used similar techniques when advertisers posted ads 

identifying people as under 18, simply instructing users to change the posted age 

in order for the ad to be posted. 

To my mind this report indicates a vast criminal enterprise. I am heartened by 

reports that there are potentially multiple Federal investigations using insights 

from the Senate report and an empaneled grand jury. 

My hope is that justice can be done. 

Mrs. BLACKBURN. The gentleman yields back. 

Ms. Brooks, you are recognized. We will see if Chairman Walden 

makes it, but you are recognized for your comments. 

OPENING STATEMENT OF HON. SUSAN W. BROOKS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA 

Mrs. BROOKS. Thank you, Madam Chairwoman. 

And I am very, very pleased to see our colleague and a leader 

in the House of Representatives, Representative Wagner, who, 

since we came in together 5 years ago, has been a strong, strong 

voice fighting for the victims and educating the American people 

about Backpage and other avenues of sex trafficking. 

I just want to take a moment to commend the State of Indiana. 

I was involved as a United States attorney from 2001 to 2007, and, 

during that time, the Bush administration put a huge focus on exploitation and on child exploitation. And we started an effort called 

IPATH now, which is about protection against human trafficking. 

6 

And it brings together law enforcement, victim services; it puts in 

place protocols. 

But I will tell you that the criminals and the perpetrators are always trying to stay one step ahead. They are always trying to find 

ways to exploit children, women, and others in order to satisfy 

their sexual desires. And it is very, very difficult work. Law enforcement work around the world to find victims and the webs that 

they have created. And the perpetrators, which coordinate around 

the world, are something that we must continue to pursue with 

every avenue we possibly can. 

And, finally, I just want to focus on the victims. The victims of 

this type of sexual exploitation, sexual trafficking, can be found in 

every district in our country, from urban areas to rural areas to 

suburban areas. And I think people are often shocked when they 

read in our papers or read about the victims. And we must make 

sure that we are there for the victims. 

So I just want to commend Ann Wagner and so many Members 

on both sides of the aisle who have stepped up to really lead the 

charge and try and say that we cannot allow this type of human 

slavery in this day and age to continue and we must continue to 

fight it. And I just want to thank my colleague from Missouri for 

being a leader. 

And I yield back. 

Mrs. BLACKBURN. The gentlelady yields back. 

Is there any other Member seeking recognition? 

No other Member seeking recognition, at this time I want to recognize Mr. Pallone—who is not here—for his 5 minutes. 

Any other Member seeking recognition? 

Mr. DOYLE. Oh, Madam Chairman, I—— 

Mrs. BLACKBURN. Mr. Doyle. 

Mr. DOYLE. Thank you. I forgot, I need to ask unanimous consent 

to enter into the record a letter to yourself and myself from Professor Alexander Levy of the University of Notre Dame Law School. 

Mrs. BLACKBURN. Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. DOYLE. Thank you. 

Mrs. BLACKBURN. All right. At this point, our first witness for today’s panel will include Mrs. Ann Wagner, representing Missouri’s 

Second Congressional District, who will give opening remarks regarding her efforts on the issue. 

Mrs. Wagner, you are recognized for 5 minutes. 

STATEMENT OF HON. ANN WAGNER, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF MISSOURI 

Mrs. WAGNER. I thank you, Madam Chairman and Ranking 

Member Doyle and colleagues, for hosting this committee hearing 

today and for allowing me to give some opening remarks. 

I appreciate your commitment to addressing online trafficking 

and especially appreciate that so many members of this subcommittee have publicly cosponsored H.R. 1865. Stopping the victimization of America’s children and adults online is my top priority in Congress, and I know I have an ally in Chairman Blackburn. I also appreciate subcommittee members Adam Kinzinger 

and Yvette Clarke for being original cosponsors of my bill. 

7 

My first major piece of legislation concerning online trafficking 

was the SAVE Act, which became law in 2015. The SAVE Act was 

a first step in addressing Federal-level prosecutions of websites. 

Unfortunately, it has not yet been used, presumably because the 

mens rea standard in the legislation, knowingly, is too high. Moreover, the SAVE Act was federally focused, and it did not enable 

States and local prosecutors to protect their communities. 

I have learned a lot since then. And this is why, over a year and 

a half ago, I began working on H.R. 1865, the Allow States and 

Victims to Fight Online Sex Trafficking Act, or FOSTA. The bill is 

written for victims, not only because it would allow victims to pursue civil justice but because it would empower local prosecutors to 

take down websites that facilitate trafficking before they ever reach 

the size or the scope of Backpage.com. 

The House understands that enabling vigorous criminal enforcement is not just important but mandatory in any legislation we 

pass. This is why over 170 of my colleagues cosponsored FOSTA 

when I personally explained to them how websites can perpetuate 

modern-day slavery with impunity. 

Why are these websites able to sell our children? Because judges 

have ruled that section 230 prevents websites that exploit the most 

vulnerable members of our society from being held accountable. 

Congress’ response to these rulings must be patently clear. Section 

230 of the Communications Decency Act was never intended to 

allow businesses to commit crimes online that they could never 

commit offline. When Congress passed the Communications Decency Act in 1996, it explicitly acted to prevent the internet from 

becoming a red light district, and it clearly did not believe that 

rape was a prerequisite of a free and open internet. 

What Congress cannot do is pass a bill that amends section 230 

but is so narrow that it could only be used to prosecute 

Backpage.com. 

Let me be plain: I support the Senate’s recent action on my legislative proposal. I appreciate the complicated strategic environment 

that Senators Blumenthal and Portman and others are operating 

in. And I believe that it is a step in the right direction. But the 

Senate bill is not the full solution. 

Backpage.com is currently, as Mr. Doyle stated, the largest of the 

websites that facilitate trafficking in America, but it is already 

under Federal investigation, and it is just a small, small piece— 

small piece—of this growing criminal ecosystem. Hundreds—and 

let me underscore—hundreds of advertising sites have jumped into 

the marketplace of illegal sex. For instance, Eros serves as the 

high-end market. Escorts In College advertises women close to and 

under the age of consent. And Massage Troll is, sadly, popular in 

my own district. 

Thanks to Senator Portman’s investigation, a wealth of evidence 

against Backpage.com has been discovered over the past year. And 

while it may now be possible, though still incredibly difficult, to 

prove that Backpage.com knowingly assisted in sex trafficking violations, it is not possible to gather this level of evidence for the 

hundreds of other websites that are profiting from the sex trade. 

I have spoken with prosecutors across the country who have 

asked the House to pass a practical solution that will allow them 

8 

to take predatory websites off the internet. And I am repeatedly 

told that any legislation that depends exclusively on the ‘‘knowingly’’ mens rea standard is merely a Washington, DC, feel-good exercise. Congress might pat itself on the back but will have accomplished little to prevent the sale of victims online. 

FOSTA is centered on the ‘‘reckless disregard’’ standard that 

prosecutors need to open cases on bad actor websites. And we must 

find a way to maintain a useful mens rea standard or, at the very 

least, not raise the very high bar that victims and prosecutors must 

already meet. 

If we are serious about helping victims, we must create laws that 

allow for a robust State and local criminal enforcement. Criminal 

enforcement means businesses will stay out of the illegal sex trade, 

fewer people will ever become victims, demand will be reduced, 

and, yes, civil suits will be easier to bring. The criminals who auction our children will be put behind bars. 

I believe, in closing, we can mark up a bipartisan House bill that 

will provide meaningful tools to prevent future victimization. And 

I look forward to working with you to pass a forward-facing—forward-facing—solution that will disrupt the online trafficking industry. 

I thank you, Madam Chairman, and I thank you all on the committee and my colleagues for allowing me to give these opening remarks. 

[The prepared statement of Mrs. Wagner follows:] 

9 


United States House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Communications and Technology 

Hearing: Latest Developments in Combating Online Sex Trafficking 

November 30,2017 

Testimony of Congresswoman Ann Wagner (R-MO) 

Sponsor ofH.R. 1865, Allow States and Victims to Fight Online Sex Trafficking Act 

Thank you, Madame Chairman and Ranking Member Doyle, for hosting this hearing today. I 

appreciate your commitment to addressing online sex trafficking and especially appreciate that so 

many members of this Subcommittee have cosponsored H.R. 1865. I am also very grateful that the 

Chairman publicly supported the legislation earlier this year and has become one of my closest 

allies. In addition, Subcommittee members Representatives Yvette Clarke and Adam Kinzinger 

were both original cosponsors of the bill. 

I hope that this hearing will be a productive discussion on how Congress can best protect victims 

and end the immunity that websites that facilitate human trafficking have enjoyed under Section 

230 of the Communications Decency Act (CDA). For far too long, victims of this crime have been 

overlooked and underserved, and it has been my top priority in Congress, as trafficking has moved 

from the streets to the internet, to stop the victimization of America's children and adults. 

My first major piece of legislation concerning online trafficking was the Stop Advertising Victims 

ofExploitationAct(the "SAVE Act"), which became law in 2015. The SAVE Act was a good first 

step in addressing federal-level prosecutions, 1 but it did not enable state and local prosecutors to 

1 Unfortunately, the SAVE Act has not yet been used by the Department of Justice, presumably because the mens rea 

standard used in the legislation-"knowingly"-is too high. I have learned a lot since then, and I am adamant that we 
10 


protect their communities.2 This is why, over a year and a half ago, I began work on H.R. 1865, 

the Allow States and Victims to Fight Online Sex Trafficking Act (or "POSTA"). I introduced the 

bill in April after extensive consultations with victims, advocacy groups, civil attorneys, law 

enforcement, and prosecutors. 

I believe that this bill is in many ways the gold standard in addressing online trafficking. It has 

three main prongs: l) it would allow victims of sex trafficking and sexual exploitation of children 

crimes to pursue civil cases under federal and state law; 2) it would allow state and local 

prosecutors to enforce state statutes that prohibit sex trafficking or sexual exploitation of children; 

and 3) it would amend the federal criminal code to essentially create a new crime that makes it 

unlawful for websites to publish information provided by a user with reckless disregard that the 

information is in furtherance of a sex trafficking offense.3 

pass a bill to address online trafficking that is of practical use in disrupting the sex trade and preventing exploitation 

of victims. 2 See Online Sex Trafficking and the Communications Decency Act.· Hearing before the Committee on the Judiciary, 

Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, October 3, 2017, House of 

Representatives, !15th Cong. (20 17) (Testimony of Mary Leary), at page 12 (explaining that "The Internet has grown 

all aspects of our modern economy including the illicit economy of sex trafficking. Often state and local prosecutors 

are uniquely situated to be the first to see the emergence of new websites engaged in such illegal activity. They must 

have the ability to respond quickly to these harmful sites that are preying on children and vulnerable adults in their 

local communities. Federal prosecution is discretionary. Because of the limited resources of the federal government, 

traditionally, federal prosecutors take cases only of certain magnitudes and with broad impact. Each advertising site 

that partners with traffickers is often first seen on the local level. Therefore, it is more effective to enable state and 

local prosecutors to investigate and prosecute these sites when they are small before they become large enough to 

exploit larger numbers of victims and garner federal attention. This is not only effective law enforcement, it is essential 

in the sex trafficking context because each ad represents a person being monetized for brutal rape and sexual 

exploitation multiple times a day. The more effective law enforcement approach is to investigate and prosecute those 

websites that participate in trafficking victims as they emerge and before the number of"hits" from purchasers number 

in the thousands.ln so doing hundreds of trafficking victims will not be sold and thousands of rapes can be prevented"). 3 The bill also expresses the intent of Congress that Section 230 was never intended to provide legal protection to 

websites that facilitate traffickers in advertising the sale of unlawful sex with sex trafficking victims. 
11 


The bill is written for victims-not only because it would allow victims to pursue civil justice, but 

because it would empower local prosecutors to take down websites that facilitate trafficking before 

they ever reach the size and scope ofBackpage.com. 

The bill prevents victimization because it would produce more prosecutions of bad actor websites, 

more convictions, and more predators behind bars. If Congress establishes a real tool to ensure 

that businesses cannot commit crimes online that they could never commit offiine, fewer 

businesses will enter the sex trade, and fewer victims will ever be sold and raped. 

The U.S. House of Representatives understands that enabling vigorous criminal enforcement is 

not just important, but mandatory in any legislation we pass. That is why over 170 of our 

colleagues cosponsored POSTA when I personally explained to them how websites can perpetuate 

modem day slavery with impunity. 

Why are these websites able to sell our children? Because multiple judges have ruled that Section 

230 of the Communications Decency Act preempts the ability of victims and state and local 

prosecutors to combat websites that exploit the most vulnerable members of our society. For 

example, in August 2017, the California Attorney General tried to hold Backpage.com accountable 

for pimping. Sacramento Superior Court Judge Lawrence Brown wrote that "If and until Congress 

sees fit to amend the immunity law [Section 230], the broad reach of the CDA even applies to 

those alleged to support the exploitation of others by human trafficking." 

When Congress passed the Communications Decency Act in 1996, it never intended for the 

internet to become a red-light district.4 It clearly did not believe that rape was a prerequisite of the 

4 Senator J. James Exon, author of the Communications Decency Act, said on the Senate floor at the time that "the 

information superhighway should not become a red light district. This legislation will keep that from happening and 

extend the standards of decency which have protected telephone users to new telecommunications devices. Once 
12 


free and open intcrnet; 5 or that intellectual property should be better protected under federal law 

than the lives of America's children. So Congress' response to rulings from the Sacramento 

Superior Court and other jurisdictions must be patently clear: businesses that sell trafficking 

victims should be vigorously held accountable, and Section 230 does not stand in the way of 

justice. 

Importantly, Congress cannot pass a bill that amends Section 230 but is so narrow that it could 

only be a means of prosecuting Backpage.com. I support the Senate's recent action on my 

legislative proposal,6 and I believe that it is a step in the right direction. I appreciate that the Senate 

efforts have retained the carve-out for the federal private right of action established in the 

Trafficking Victims Protection Reauthorization Act (18 U.S.C. 1595) that was used in Doe vs. 

Backpage.com7 I understand that the Senate companion bill was negotiated in a complicated 

strategic environment, but the bill in its current form is not the full, future-oriented solution. 

passed, our children and families will be better protected from those who would electronically cruise the digital world 

to engage children in inappropriate communications and introductions." But the CDA in practice has allowed the 

internet to become a red light district. The anti-indecency provisions of the CDA were struck down a year after passage 

in Reno vs. ACLU. Only Section 230 remained. 5 See Testimony of Mary Leary, supra note 2, at 7 (explaining that "The CDA was never intended to provide absolute 

immunity to service providers. However, since its enactment in 1996, forces have combined to create an atmosphere 

of de facto absolute immunity for online businesses. The CDA, as the name implies, was passed as part of a broad 

Congressional effort to address the impending challenges of the nascent Internet. Section 230, entitled Protection for 

Private Blocking and Screening of Offensive Material, manifested Congress's intent to have a flourishing Internet, 

which was then in its infancy, and remove disincentives to develop and utilize technology to block harmful content. 

Congress struck that balance by providing limited immunity for service providers, allowing immunity for Good 

Samaritan providers and those who host third party content but do not create it. However, Congress explicitly stated 

that this immunity should not be construed to limit enforcement of federal criminal laws or consistent state laws. 

Although Congress intended limited immunity, the current interpretation of the CDA perversely undermines that 

Congressional intent"). 6 Senator Portman and Senator Blumenthal introduced the Stop Enabling Sex Traffickers Act in the U.S. Senate in 

August 2017, a companion bill to H.R. 1865 with some changes made to gain the endorsement of tech companies, 

helpful for passage, that unfortunately weakened tools for state and local prosecutors. 7 Unfortunately, POSTA's carve-out for state civil cases was removed in the Senate companion. The Senate version 

of the federal civil carve-out has been narrowed and is now based on the "knowingly" mens rea standard, which will 

not provide operational recourse to justice for victims across the country and thus may not actually prevent future 

victimization. Moreover, claims using the carve-out cannot be brought in state/local courts and would be subject to a 

heightened pleading standard. I continue to stand in solidarity with victims who arc pursuing cases based on state 

laws, and believe Congress should keep working toward a comprehensive solution. 
13 


Backpage.com is currently the largest of the websites that facilitate trafficking in America, but it 

is already under federal investigation, and it is just a small piece of this growing criminal 

ecosystem. Advertisements are already shifting off Backpage.com and to other websites. Since 

Backpage.com began successfully claiming Section 230 immunity in 2010, hundreds of 

advertising sites have jumped into the marketplace of illegal sex. For instance, Eros serves the 

high-end market; Escorts in College advertises women close to and under the age of consent; and 

Massage Troll is popular in my district. Beyond these advertising hubs, there are also hobby 

boards: websites where johns post reviews of their sexual encounters. The Erotic Review serves 

as the Yelp of the sex market, allowing users to rate victims on shockingly graphic details that I 

will not repeat here. 

I ask this Committee to consider whether under section 1595, if the Senate companion were to pass, the plaintiff 

would have to establish that the website ( 1) "knowingly" benefitted financially through "participation in a 

[trafficking] venture" (defined as, "knowingly assisting, supporting, or facilitating" someone who "knowingly ... 

recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes or solicits by any means a 

person"), (2) "knowing ... means of force, threats of force, fraud, or coercion will be used to cause the person to 

engage in a commercial sex act, or knowing that the person has not attained the age of 18 and will be caused to 

engage in a commercial sex act." This would raise several questions: 

a. What evidence would a civil attorney or DA need and expect to rely upon to establish the website "knew" 

the specific plaintiff was engaged in commercial sex? 

b. What evidence would a civil attorney or DA need and expect to rely upon to establish the website "knew" 

the specific plaintiff was forced or coerced to engage in commercial sex? 

c. What evidence would a civil attorney or DA need and expect to rely upon to establish the website "knew" 

the individual advertised on the site was a minor? 

d. Does the "knowledge" standard require the website specifically know the individual is underage, either by 

self-reporting or some other means? 

e. Does the website "know" a minor is being trafficked if the ad includes code words, such as "New in Town" 

or "Fresh," or a photo that appears to depict someone underage? 

f. Does the website "know" it is benefitting financially through knowingly assisting in a [trafficking] venture 

simply by hosting an "escort" advertisement of an individual in the ad who is later found to be a minor? 

g. Does the website "know" it is benefitting financially through knowingly assisting in a [trafficking] venture 

simply by hosting an "escort" advertisement of an adult who is later found to have been forced/coerced to engage in 

commercial sex? 

h. Does the website "know" it is facilitating commercial sex transactions simply by hosting an "escort" ad? 
14 


A wealth of evidence against Backpage.com has been discovered over the past year, and while it 

might now be possible, though still incredibly difficult, to prove that Backpage.com "knowingly" 

assisted in a sex trafficking violation, it is not possible to gather this level of evidence for the 

hundreds of other websites that are profiting from the sex trade. Because of these legal realities, 

prosecutors across America have told me that any legislation that depends exclusively on the 

"knowingly" mens rea standard to hold websites accountable will merely be a Washington, D.C., 

"feel good" exercise.8 Congress might pat itself on the back, but local prosecutors won't be able 

to ensure that bad actor websites do not facilitate the sale of victims. This is why FOST A is built 

around the reckless disregard mens rea standard that prosecutors and victims need to have a 

meaningful chance at success. We must find a creative way to maintain the reckless disregard 

standard or at the very least, not raise the very high bar that victims and prosecutors must already 

meet in the federal criminal code. House efforts must complement and enhance the steps the Senate 

Commerce Committee has taken. 

I have spoken with local prosecutors across the country who have asked the House of 

Representatives to pass a practical solution that will allow them to take predatory websites off the 

internet. I believe that every victim has a right to use their private rights of action, at both the 

federal and state levels, and I am beyond thrilled that J.S. v. Village Voice Media Holdings 

provided a successful case study in how to prosecute bad actor websites. But in order to help as 

many victims as possible, to prevent victimization in the first place, and to enable the success of 

more civil cases, we need more state and local prosecutions. A group of law professors weighed 

'Indeed, the "knowingly" mens rea standard has inadvertently made it more difficult to bring cases, both criminal and 

civil, than the original 1591 text allows for. The Committee must pay particular attention to prosecutors and lawyers 

who will be impacted by this standard. 
15 


in on the need to enhance state criminal enforcement in a recent blog post published by Shared 

Hope International: 

Sex trafficking, like all social problems, requires a comprehensive response from many quarters: the criminal 

law, civil law, business regulations, etc. These mechanisms are necessary to deter, prevent, and when 

prevention fails, punish trafficking or facilitating the trafficking of people. For many crimes we look to 

federal, state, local, civil, criminal, medical, and educational institutions to respond. Human trafficking is no 

different. 

There is an important aspect of federal prosecution that is worth mentioning here: federal prosecution is 

discretionary. Because of the limited resources of the federal government, federal prosecutors do not and 

cannot take every case. They select certain cases to handle based on a variety of factors. Most criminal 

charges, therefore, take place on the local and state level. For example, although it is a federal crime to 

distribute narcotics, the Department of Justice does not handle every narcotics case. Rather, it selects a small 

number of cases, leaving the primary job of prosecuting these crimes to the states ... 

The problem of human trafficking is massive. This is an extremely lucrative criminal enterprise with many 

tentacles. One of the reasons human trafficking is growing so rapidly is the large role the internet plays in its 

execution. We need many pressure points to contain and eradicate this form of victimization on both the state 

and federal level. Indeed most of the prosecution of criminal cases of human trafficking is based on state 

laws. 

Furthermore, states have the right - indeed the obligation - to protect their citizens. Since the founding of 

our nation, there have been many sources of criminal law for all forms of victimization. States have their 

criminal codes for crimes that state legislatures see affecting their citizens. The federal criminal code 

addresses federal crimes and these are forms of victimization that the United States Congress has identified 

as crimes with a federal interest. While some crimes just have a federal interest -treason for example, most 

crimes are local and the federal government chooses to supplement the state criminal laws, not replace 

them ... ' 

If we are serious about helping victims, we must be serious about creating laws that allow for 

robust state and local criminal enforcement. Criminal enforcement means businesses will stay out 

of the illegal sex trade; fewer vulnerable people will ever become victims; demand will be reduced; 

and civil suits will be easier to bring. There is tremendous momentum to pass a bill that prevents 

the exploitation of trafficking victims, deters criminal conduct, and incentivizes practices that will 

reduce online sex trafficking. Indeed, Congress has a moral obligation to shut down these websites. 

9 Mary G. Leary, Shea Rhodes, Chad Flanders, and Audrey Rogers, "Law Professors Weigh in on Amending the CDA 

-Part I," https://sharedhope.org/20 17 /09/law-professors-wcigh-amending-cda-part-11, (September 14, 20 17). 
16 


I am committed to collaborating with this Subcommittee, the House Judiciary Committee, House 

Leadership, and the Senate to end the online trafficking industry in America, and I will work with 

you to mark up a forward-facing bill (or bills) that will provide justice to victims of all bad actor 

websites, not just Backpage.com. I adamantly believe we can pass bipartisan House legislation 

that includes meaningful tools to prevent future victimization. Together, the !15th Congress can 

hold online marketplaces accountable for facilitating the sale of our most vulnerable. 

Thank you. 
17 

Mrs. BLACKBURN. The gentlelady yields back. 

We thank you so much for your remarks and your well wishes 

that we will move forward. 

At this time, we will briefly recess long enough to put the new 

nameplates up, and we will welcome our panel to the table. 

[Recess.] 

Mrs. BLACKBURN. At this time, we welcome our second panel of 

witnesses: Yiota Souras, who is the senior VP and general counsel 

for the National Center for Missing and Exploited Children; Ms. 

Derri Smith, CEO of End Slavery Tennessee; Mr. Russ Winkler, assistant special agent in charge at the Tennessee Bureau of Investigation; and Mr. Eric Goldman, a professor at Santa Clara University School of Law. 

Welcome to each of you. We appreciate that you are here today. 

We are going to begin our testimony with you, Ms. Souras. 

Each of you will have 5 minutes. I ask that you move the microphone to you, touch the button in the center so that you activate 

it. And at the end of your 5 minutes, we will begin the questioning 

portion of this hearing. 

Ms. Souras, you are recognized for 5 minutes. 

STATEMENTS OF YIOTA G. SOURAS, SENIOR VICE PRESIDENT 

AND GENERAL COUNSEL, NATIONAL CENTER FOR MISSING 

AND EXPLOITED CHILDREN; DERRI SMITH, CHIEF EXECUTIVE OFFICER, END SLAVERY TENNESSEE; RUSS WINKLER, 

SPECIAL AGENT IN CHARGE, TENNESSEE BUREAU OF INVESTIGATION; AND ERIC GOLDMAN, PROFESSOR, SANTA 

CLARA UNIVERSITY SCHOOL OF LAW 

STATEMENT OF YIOTA G. SOURAS 

Ms. SOURAS. Thank you. 

Chairman Blackburn, Ranking Member Doyle, and members of 

the committee, I am honored to be here today on behalf of the National Center for Missing and Exploited Children and to join this 

discussion to ensure that America’s most vulnerable victims—children trafficked online for rape and sexual abuse—have opportunities for justice against their traffickers, including those who participate in trafficking them online. 

I would like to thank Congresswoman Wagner for her longstanding dedication to child sex trafficking victims and her tireless 

work to create meaningful change for these survivors. 

As part of our work as the congressionally designated resource 

center on missing and exploited children, NCMEC receives approximately 9,800 reports of child sex trafficking every year. Over the 

past 5 years, 88 percent of these reports have involved a child 

being trafficked online. More than 74 of these reports from the public relate to an ad on Backpage. 

In recent years, we have learned an enormous amount about the 

complexity, ruthlessness, and profitability of the sale of children for 

sex online. But we have also seen courts struggle and fail to hold 

websites liable for facilitating sex trafficking. Today, we are at a 

crossroads on how best to proceed with legislation that combats 

this heinous crime. 

18 

Courts have been able to find their way around the current application of the CDA, a statute that is over 21 years old and has 

created broad immunity, even for websites that support online 

child sex trafficking. These courts have called on Congress to clarify that all facilitators of online sex trafficking, including websites, 

are not legally protected. 

The House of Representatives and the Senate have worked on 

parallel tracks to develop bills that respond to the recent court decisions and reconcile the CDA with protections granted to victims 

under the Federal trafficking statute. 

We believe these bills address the specific legal barriers faced by 

child sex trafficking victims and coalesce around three legislative 

solutions: first, ensuring that State attorneys general have the authority to protect children in their own States and can bring criminal and civil actions against online entities that participate in sex 

trafficking; second, clarifying that sex trafficking victims can pursue civil remedies against everyone who participates in their trafficking, including websites; and, third, defining participation in a 

trafficking venture under Federal law as assisting, supporting, or 

facilitating sex trafficking. 

These broad legislative solutions specifically respond to what 

courts have called on Congress to do: provide children with access 

to justice and hold websites that facilitate sex trafficking responsible. 

NCMEC has assisted tens of thousands of children victimized by 

online sex trafficking. Behind the current debate about the particular details and standards within the legislative proposals are 

horrific experiences suffered by these children, who are defenseless 

against predators selling them for rape and sexual abuse online. 

NCMEC has worked closely with many sex trafficking victims 

whose cases have been dismissed due to the current broad interpretation of the CDA’s immunity. We have witnessed the anguish of 

these children’s recovery and have heard their hopelessness when 

courts dismiss their cases against websites that facilitated their 

trafficking. 

Victims who have been denied justice due to the CDA include a 

14-year-old girl who was trafficked online for 2 years and advertised in sexually explicit poses; two 15-year-old girls, one who was 

raped over 1,000 times while trafficked online for just over a year 

and a second girl who was trafficked online for 2 years and sold 

to from 5 to 15 customers a day. 

Cases like this remind us of the ongoing suffering of victims and 

the urgency to move forward with current legislation that addresses past cases and has broad support from all key stakeholders, including the tech sector. NCMEC believes that legislation that includes the three core solutions outlined more fully in my written 

testimony will provide powerful tools to ensure the rights of child 

victims while protecting current law that encourages a robust 

internet. 

Chairman Blackburn, we couldn’t agree with you more when you 

said in yesterday’s Knox News that standing by idly is simply not 

an option. It is time that we hold companies accountable for their 

actions when they cross the line. We have been encouraged by the 

Senate’s legislative progress on FOSTA, including the support of 

19 

the Internet Association and Facebook, and are hopeful that under 

your leadership a similar path forward can be accomplished here 

in the House. 

In conclusion, we stand ready to assist the committee so that at 

the end of the day a bill can move expeditiously to the President’s 

desk for enactment into law. 

Thank you. 

[The prepared statement of Ms. Souras follows:] 

20 


Statement by 

Yiota G. Souras, Senior Vice President and General Counsel 

The National Center for Missing and Exploited Children 

"Latest Developments in Combating Online Sex Trafficking" 

November 30,2017 

Subcommittee on Communications and Technology 

Committee on Energy and Commerce 

United States House of Representatives 

Chairman Blackburn, Ranking Member Doyle, and Members of the Committee, I am honored to 

be here today on behalf of The National Center for Missing and Exploited Children (NCMEC) and 

to join this discussion regarding how we can best ensure that our nation's most vulnerable victims 

- children trafficked online for rape and sexual abuse - are provided with adequate legal 

protections and opportunities for legal recourse. We are deeply appreciative of the intense 

legislative activity undertaken this past year to consider how best to combat child sex trafficking, 

a devastating crime that continues to expand tremendously as a viable online business model. 

Today, we are at a crossroads on how best to proceed with legislative remedies to combat this 

heinous crime of online sex trafficking. We have learned an enormous amount over the past few 

years about the complexity, ruthlessness, profitability, and massive scale of the sale of children for 

sex online. At the same time, we have witnessed courts struggle, and fail, to provide child sex 

trafficking victims with effective legal redress or to hold online entities legally responsible for 

facilitating sex trafficking. Courts have been unable to find their way around the barriers created 

by an overly broad application of the Communications Decency Act (CDA), a statute that is over 

two decades old and has created virtually absolute immunity for online entities, even those actively 

engaged in trafficking children for sex. 

Today, state Attorneys General cannot prosecute websites that facilitate the sex trafficking of 

children in their own state. And child victims cannot use the private right of action specifically 

granted to them by Congress to seek their own civil remedies against an online entity that 

participated in their sex trafficking. 

Over the past few months, the House of Representatives and the Senate have worked on parallel 

tracks to address these judicial outcomes and to reconcile the CDA with the protections Congress 

granted sex trafficking victims under the Trafficking Victims Protection Reauthorization Act 

(TVPRA). 
21 


Here in the House of Representatives, Congresswoman Ann Wagner of Missouri has continued 

her longstanding dedication to protecting the rights of child sex trafficking victims by introducing 

her landmark bill, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 

(FOSTA) (H.R. 1865) which currently has 171 cosponsors and support from numerous law 

enforcement and advocacy groups. NCMEC joins the dozens of survivors, their families, and other 

child advocates who applaud her tireless work to create meaningful change for online trafficking 

victims. 

In the Senate, Senator Rob Portman, building off his leadership on the groundbreaking 

investigation of online sex trafficking by the Senate Permanent Subcommittee on Investigations, 

introduced the Stop Enabling Sex Traffickers Act of2017 (SESTA) (S. 1693), which NCMEC has 

endorsed. SEST A passed unanimously out of the Senate Commerce Committee earlier this month, 

and now more than half the Senate has cosponsored the bill. NCMEC is especially pleased that its 

valued partners from the technology industry, including the Internet Association and Facebook, 

have joined NCMEC, other advocacy groups, and several Fortune 500 companies to endorse 

SEST A, which is now poised for a vote on the Senate floor. 

By focusing on the specific legal barriers facing child sex trafficking victims, the efforts of both 

the House and the Senate have coalesced in consensus around three broad legislative initiatives: 

First, ensuring that state Attorneys General are empowered to protect their most 

vulnerable citizens by granting them the authority to bring criminal and civil actions against 

online entities that assist, support or facilitate human sex trafficking; 

Second, clarifying that sex trafficking victims can utilize the private right of 

action granted to them by Congress to pursue civil remedies against everyone 

who participates in their trafficking, including websites and other online entities; and 

Third, defining participation in a trafficking venture under the federal criminal 

statute as assisting, supporting or facilitating human sex trafficking. 

These core legislative solutions specifically address the legal impediments that currently foreclose 

access to justice for child victims and permit online entities to facilitate the trafficking of children 

for sex on the internet with impunity. NCMEC has been encouraged by the commitment from 

House and Senate members, law enforcement, advocacy organizations, and the tech community to 

prioritize protecting our children with their support of these core legislative solutions. 

NCMEC History 

NCMEC was created in 1984 by John and Reve Walsh and other child advocates as a private, nonprofit organization. NCMEC serves to provide a coordinated, national response to missing and 

exploited children and works with families, victims, private industry, law enforcement, and the 

2 
22 


public to help prevent child abductions, recover missing children, and provide services to deter 

and combat child sexual exploitation. 

More specifically to today' s hearing, NCMEC serves as a national clearinghouse for reports 

relating to child sex trafficking, making NCMEC uniquely situated to assist law enforcement, first 

responders, and victim specialists on the identification, location, recovery, and support of child 

victims. NCMEC has provided support to tens of thousands of identified child victims and their 

families through reports from parents, law enforcement, technology companies, and the general 

public to our CyberTipline and 24-hour hotline (1-800-THE-LOST). 

Online Child Sex Trafficking 

Child sex trafficking is a pervasive and underreported crime. Every year, thousands of children 

from across the United States are trafficked, sold for sex, repeatedly raped, and suffer traumatic 

physical, sexual, and emotional abuse. NCMEC has worked on child sex trafficking cases in every 

state in the country. 

Child sex trafficking involves the rape or sexual abuse of a child in exchange for something of 

value. There is no legal protection for selling, facilitating the sale of, or benefiting financially from 

the sale of a child for rape or sexual abuse. There is no situation in which child sex trafficking 

could be considered legal or consenting sexual activity between adults. 

Technology has fundamentally changed how children are victimized through sex trafficking in 

ways that would have been unimaginable just a few years ago. An adult can now shop from the 

privacy of his home, office or hotel room, often on a cell phone, to buy a child for rape. Traffickers 

lure and recruit children online. Websites can create virtual marketplaces on which predatory 

offenders can peruse a variety of sexual experiences being offered for sale, including with children, 

and complete their purchase online. 

NCMEC operates the CyberTipline to provide the public and electronic service providers with an 

efficient means of reporting incidents of suspected child sexual exploitation, including child sex 

trafficking. Over the past five years, NCMEC has received an average of9,800 reports relating to 

child sex trafficking every year. We believe the reports made to NCMEC reflect only a small 

fraction of the much larger number of children trafficked online each year. There is no mandatory 

requirement to report instances of child sex trafficking to NCMEC. In addition, not all children 

who are trafficked are reported missing. Some have been forced out of their homes. Some are not 

missing at all- children can be trafficked while still living at home, with the Internet providing an 

easy and highly accessible platform for potential predators to find and exploit them. 

The crime of child sex trafficking has increasingly expanded to the internet. Traffickers have 

learned that by leveraging the power of the internet, they can more easily recruit, control, and sell 

children for sex. Some website operators have also recognized the enormous profitability of 

creating online platforms to facilitate the sale of adults and children for sex. 

3 
23 


Over the past five years, 88% of NCMEC's reports regarding child sex trafficking relate to the 

trafficking of a child online. Further, more than 74% of reports relating to child sex trafficking 

made by members of the public to NCMEC concern an advertisement on Backpage. This trend 

will continue so long as online classified advertising websites are able to facilitate and support the 

sex trafficking and commercial sale of children for sex to a range of online customers. 

At NCMEC, we are confronted daily with the reality that children are sold for sex online. Under 

current law, these crimes can be committed with virtual impunity by websites that facilitate the 

sex trafficking of a child. In case after case, child sex trafficking victims are unable to have their 

voices heard and are deprived of their day in court against online entities that supported their 

trafficking. 

The legislative solution needed at this time is a narrow clarification to existing laws that will enable 

courts to find their way around current judicial barriers and ensure that child victims have full 

rights to seek redress for their harm. Multifaceted legal resources also must be brought to bear 

against online facilitators of sex trafficking. While federal prosecution of online trafficking 

facilitators is not barred, state Attorneys General and private attorneys must be part of the 

legislative solution moving forward to ensure child victims have adequate legal routes to seek 

redress and federal prosecutors have adequate support to combat the growing volume of online sex 

trafficking crimes. 

The Experiences of Child Sex Trafficking Victims Highlight the Need for Action on Current 

Legislative Solutions 

Over the past seven years, over 20 legal cases have been filed involving Backpage, many brought 

by children seeking justice against Backpage for facilitating their sex trafficking online. Time and 

time again in these cases, courts have acknowledged the horror of the allegations made regarding 

the child victims' trafficking, but held themselves powerless to act under the CDA. 

The child sex trafficking victims who have been denied justice by courts due to the CDA include: 

• A 14-year old girl trafficked online for two years and advertised in sexually exploitive 

poses with photos of her private body parts. 

• A IS-year old girl raped over I ,000 times while trafficked on Backpage for just over a year. 

• A IS-year old girl trafficked for two years on Backpage with an average of five to fifteen 

customers a day. 

Unfortunately, these victims are not unique. NCMEC has managed tens of thousands of cases of 

children bought and sold for sex through online advertisements. The prevalence and lurid horror 

of these advertisements cannot be underestimated. It is essential to understand that the current 

debate regarding legislative options emerges from the horrific experiences suffered by children 

who are defenseless against predators who seek to commercialize them for sex online. 

4 
24 


Two cases reported to NCMEC earlier this year underscore the helplessness and sheer brutality 

suffered by children who are trafficked for sex: 

1. A child went missing from the custody of social services in Arkansas and was reported to 

NCMEC. A few months after the child went missing, she was able to text her sister to say 

that she was being held by men with guns in a house that had bars on the windows. She 

told her sister she was scared. After five months, the child was recovered - she had been 

brutally beaten, sexually trafficked on Backpage across three states, and tested positive for 

multiple sexually transmitted diseases. 

After she was recovered, the child, who was 14 years old, reported that she had run away 

because she was "looking for someone to care about her." 

2. A 15-year-old child went missing from the custody of social services in Illinois and was 

reported to NCMEC. The child was lured to a house by a 25-year-old man who forced her 

to take cocaine and meth, raped her, and then trafficked her for sex to several different 

men. The child was recovered four days later after a member of the public alerted law 

enforcement to seeing the child on the train tracks talking to herself. 

After being recovered, the child reported that after escaping from her trafficker she had 

gone to the train tracks to commit suicide by getting hit by a train. 

These cases remind us of the ongoing suffering by child sex trafficking victims that the current 

legislative initiatives are designed to address and underscore the urgency of moving forward. 

The Courts' Struggles to Reconcile Federal Trafficking Law and the CDA 

Congress has protected children from being trafficked for sex by enacting the TVPRA. The 

TVPRA establishes human trafficking as a federal crime and recognizes the unique vulnerability 

of children to trafficking by imposing severe penalties on anyone who knowingly recruits, harbors, 

transports, provides, advertises or obtains a child for a commercial sex act or who benefits 

financially from such activity. Every state has an equivalent statute that state prosecutors can usc 

against those who traffic children for sex. These laws have been used effectively to prosecute 

traffickers who conduct their business on the streets, in hotels, casinos or at truck stops. Brick and 

mortar businesses, such as hotels, that have facilitated child sex trafficking are also not immune 

from similar criminal prosecution. However, these laws have proven futile to protect children 

against websites that participate in ventures to sell children for sex due to the courts' interpretation 

of the CDA. 

The CDA was enacted by Congress in 1996 to protect online companies from liability when they 

host third party content or engage in good faith efforts to regulate harmful material on their 

platforms. Unfortunately, courts have proven unable to reconcile the purpose of the immunity 

provided by the CDA with the mission of the TVPRA to criminalize the sex trafficking of children. 

5 
25 


This legal conflict has been building for years. The most frequent result is that children who have 

suffered undeniable and unimaginable harm, are completely barred from seeking judicial relief 

against online entities that facilitated their trafficking. As a further complication, courts have been 

uncertain on what it means to benefit from participating in a trafficking venture under the TVPRA, 

which is a crucial element to proving a trafficking claim against a website. 

For years, Backpage has been one of the largest facilitators of online sex trafficking ads, and as a 

result it has been the focus of civil, criminal, and legislative efforts to curtail online sex trafficking. 

Backpage has shown that children can be trafficked for sex online through a functionally simple 

and wildly lucrative website, while courts have demonstrated that a legal loophole exists enabling 

this type of website to be immune from liability under the CDA. 

NCMEC is aware that children are trafficked for sex on many websites in addition to Backpage. 

If Backpage ultimately is shut down due to the pending legal actions, another website or multiple 

other websites will surely fill the marketplace that Backpagc currently dominates. The narrow 

legislative goals currently under discussion are intended to make certain that the next generation 

of online platforms that assist, support, or facilitate child sex trafficking will not receive the blanket 

protection of the CD A's immunity. 

NCMEC is fundamentally aware that combatting child sex trafficking is a multi-faceted problem, 

and the legislative initiatives presented by FOSTA and SESTA will not end online child sex 

trafficking. No single solution can accomplish this. But this legislation will provide essential tools 

to guarantee legal rights to child sex trafficking victims and ensure that websites that participate 

in the trafficking of a child are not legally immune for their crimes. 

Courts Call on Congress to Clarify the CD A's Impact in Child Sex Trafficking Cases 

Courts have become increasingly aware that children are without legal recourse, and state 

prosecutors foreclosed, when an online website, rather than a brick-and-mortar operation, 

facilitates a trafficking venture. Both criminal and civil courts have consistently called on Congress 

to clarify that there is no legal protection for those who facilitate the online sex trafficking of 

children. 

Last year, the Sacramento Superior Court dismissed criminal pimping charges against Backpage, 

while recognizing the vital issues at stake: 

[T]he Court understands the importance and urgency in waging war against sexual 

exploitation. Regardless of the grave potential for harm that may result in the 

exercise of this article of faith, Congress has precluded liability for online 

publishers for the action of publishing third party speech and thus provided for both 

a foreclosure from prosecution and an affirmative defense at trial. Congress has 

spoken on this matter and it is for Congress, not this Court, to revisit. 

6 
26 


Also last year, the First Circuit Court of Appeals dismissed trafficking charges in a civil case 

against Backpage after recognizing the failure of the statutes to provide an adequate means to 

protect children and hold online sex traffickers liable because of the CDA: 

This is a hard case- hard not in the sense that the legal issues defy resolution, but 

hard in the sense that the law requires that we, like the court below, deny relief to 

plaintiffs whose circumstances evoke outrage ... The appellants' core argument is 

that Backpage has tailored its website to make sex trafficking easier. Aided by the 

amici, the appellants have made a persuasive case for that proposition. But 

Congress did not sound an uncertain trumpet when it enacted the CDA, and it chose 

to grant broad protections to internet publishers. Showing that a website operates 

through a meretricious business model is not enough to strip away those 

protections. If the evils that the appellants have identified are deemed to outweigh 

the First Amendment values that drive the CDA, the remedy is through legislation, 

not through values that drive the CDA, the remedy is through legislation, not 

through litigation. 

Earlier this year, the Sacramento Superior Court again dismissed criminal pimping charges against 

Backpage and bluntly assessed its view of the current state of the law to immunize a website from 

online sex trafficking: 

If and until Congress sees fit to amend the immunity law, the broad reach of section 

230 of the Communications Decency Act even applies to those alleged to support 

the exploitation of others by human trafficking. 

NCMEC Supports Legislative Options that Resolve Current Barriers to Adequate Legal 

Remedies for Child Sex Trafficking Victims 

NCMEC has worked closely with children victimized by online sex trafficking, their families and 

private attorneys, and prosecutors in many of the cases where child sex trafficking claims have 

been dismissed under the courts' interpretation of the CDA. Through our work, we have witnessed 

the anguish of their recovery and the long-lasting trauma their families suffer. We also have heard 

their hopelessness when their legal efforts to hold responsible websites that facilitated the crimes 

against them are dismissed by the court. 

Congress has now heard these children's voices as well and is moving forward with parallel 

proposals in the House and Senate to address specific impediments raised by recent court cases. 

As outlined above, courts have uniformly recognized that the CDA lacks clarity when applied to 

modern crimes of online sex trafficking and the pernicious monetization of children trafficked for 

sex on wcbsites, such as Backpage. 

The goals of the proposed legislation by Congresswoman Wagner, Senator Portman and their 

many cosponsors are sufficiently narrow to help ensure justice for child sex trafficking victims 

and clarify that civil attorneys and state Attorneys General can actively help victims seek legal 

7 
27 


recourse against online entities that participate in their trafficking. The three core legislative 

solutions are directly responsive both to extensive congressional findings regarding Backpage's 

facilitation of online child sex trafficking and the repeated failure of courts to allow state 

prosecutors and child victims to have their day in court. 

After a multi-year investigation into Backpage and its principals, the California Attorney General's 

Office twice filed charges of pimping a minor against the owners of Backpage. Attorneys for 

Backpage asserted that the CDA barred the pimping charges. The Sacramento Superior Court 

agreed and dismissed the pimping charges in both cases holding the charges were barred because 

Backpage was immune under the CDA.1 The Missouri Attorney General's office also has 

attempted to use its state law to investigate sex trafficking on Backpage's website by recently 

serving a civil investigative demand for information from Backpage. Backpage promptly sought 

injunctive relief to block the investigation, claiming that the CDA protects all websites from state 

civil or criminal claims. 

The first legislative solution presented by FOSTA and SEST A addresses these legal outcomes by 

ensuring that state Attorneys General arc empowered to bring criminal and civil actions against 

online entities that assist, support or facilitate sex trafficking. This is an essential legislative 

remedy that would enable state Attorneys General to prosecute websites that traffic children in 

their state2 and also would provide much needed resources to assist federal prosecutors in handling 

the tremendous volume of online sex trafficking crimes. 

A recent First Circuit appellate decision held that even a website tailored to facilitate child sex 

trafficking through a "meretricious business model" is immunized from liability for its criminal 

sex trafficking activity due to the CDA.3 The court in this case held that Congress did not "sound 

an uncertain trumpet when it enacted the CDA," and the law sided with online entities and 

publishers over child sex trafficking victims. In dismissing the victims' case, the court effectively 

nullified the statutory right Congress granted to sex trafficking victims to pursue civil cases against 

their traffickers.4 

The second legislative solution presented by FOST A and SESTA restores the statutory private 

right of action to child sex trafficking victims by clarifying that they can pursue civil remedies 

against everyone who participates in their trafficking, including websites and online entities. 

1 People of the State of California v. Carl Ferrer et al., Court's Final Ruling on Demurrer (Cal. Sup. Ct. 

Dec. 9, 2016); People of the State of California v. Carl Ferrer. et al., Ruling on Defendants' Motion to 

Dismiss (Cal. Sup. Ct. Aug. 23, 2017). 2 California Attorney General Becerra testified before the Senate Commerce Committee that almost every 

sex trafficking case in his office involves online sex trafficking. (Statement of Attorney General Xavier 

Becerra to Senate Committee on Commerce, Science, and Transportation) (Sept. 19, 20 17). 3 Doe v. Backpage.com LLC, 817 F.3d 12 (1st Cir. 2016). 

'!d. (effectively nullifying remedy underl8 U.S.C. § 1595). 

8 
28 


The First Circuit appellate decision also rejected the child victims' claims that Backpage had 

violated the federal criminal trafficking statute by benefiting financially from its "participation in 

a venture" relating to their trafficking. The court expressed uncertainty regarding how to evaluate 

whether a website had participated in a venture through online activity. Because a website's 

activity relating to trafficking most often will arise from participation in a venture, rather than the 

direct transportation, provision, or solicitation of a person for trafficking, clearly defining this term 

for courts is essential to provide a viable judicial remedy to victims. 

The third legislative proposal presented by FOSTA and SESTA defines "participation in a venture" 

as assisting, supporting, or facilitating human sex trafficking. This clear definition would provide 

the courts with a firm standard by which to judge the actions of a website when sex trafficking 

civil claims or criminal charges are asserted. 

Conclusion 

I would like to thank you for the opportunity to provide the Committee with an overview of 

NCMEC's work in combating online child sex trafficking. As the nation's clearinghouse on 

missing and exploited children issues, our priority is to protect the interests of children victimized 

by sexual exploitation. We believe legislation that addresses the three core legislative solutions as 

outlined in my testimony would provide powerful tools to protect and expand the rights of child 

victims consistent with NCMEC's mission while protecting the current law that encourages a 

healthy and robust internet. 

We have been very encouraged by the Senate's legislative process on SESTA as they have worked 

to engage with all involved parties, including survivors, advocates, and the technology community. 

Each party came to the table after voicing its views and reached a compromise enabling an 

amended version of SESTA to move unanimously out of the Senate Commerce Committee. 

We are hopeful that under your leadership a similar path forward can be accomplished here in the 

House of Representatives. We stand ready to assist the Committee as you continue to consider 

proposals to combat this heinous crime so that at the end of the day, a bill can move expeditiously 

to the President's desk for enactment into law. We look forward to continuing to work with you 

on these very important issues. 

9 
29 

Mrs. BLACKBURN. The gentlelady yields back. 

Ms. Smith, you are recognized for 5 minutes. 

STATEMENT OF DERRI SMITH 

Ms. SMITH. Chairman Blackburn, Ranking Member Doyle, and 

members of the subcommittee, thank you for holding a hearing on 

this important topic. It is an honor to offer testimony on the impact 

of technology on human trafficking victims and survivors. 

The sexual exploitation perpetrated against women, men, boys, 

and girls in the commercial sex industry is found all across the 

internet. There is no place for a survivor of human trafficking to 

hide, because their victimization is already on display for all to see. 

The public victimization exponentially complicates the healing 

process. 

In the early days of this work, I met two girls from Atlanta. They 

were deceived by a girl they thought was their friend, held by child 

safety locks, and driven to Nashville by their trafficker. The trafficker got a hotel room, popped an ad up online, and was in business within half an hour. I was struck with how easy it was for 

him to sell those girls, as easy as advertising a bicycle or a car for 

sale. I was also struck with how quickly men arranged to have sex 

with these young people, as fast as ordering a pizza. 

In my years since, I have heard hundreds of variations of this 

story. At least three out of four of the survivors we serve were advertised online, and others were recruited and groomed online. 

Thankfully, an undercover detective was answering online ads 

that day posing as a john. He came to the girls’ room and ended 

their exploitation within days of its start. They were the lucky 

ones. 

Once recovered, survivors still face threats from predators online 

who are waiting for them to surface. Especially in the early days 

of survivor recovery, our efforts to monitor online activity are more 

challenging than simply monitoring phone usage. There are temptations, dangers, and master manipulators ready to entice survivors back into exploitation. 

When the Tennessee Bureau of Investigation began proactively 

attacking human trafficking, they called End Slavery Tennessee for 

assistance. First, they wanted to understand the technology landscape and how it affected victims. How were victims recruited, 

bought, and sold across the internet? They needed firsthand information, and one of our young survivors was willing to tell them all 

she knew about being trafficked online. 

Secondly, the TBI wanted a more direct partnership during the 

undercover operations. That meant our survivor intervention specialist and case manager were on site during the operation. When 

TBI identified a victim, she met with End Slavery Tennessee staff. 

These young women were offered services and a way out of exploitation that very day. Some took the offer; others did not. But they 

did understand that the offer did not have an expiration date. The 

goal was to turn that scary and often negative interaction with law 

enforcement into one of hope. 

Once a survivor comes to End Slavery Tennessee, the plan of 

care often depends on drug addiction, prior victimization, length of 

time enslaved, and the age of the victim. We have provided care 

30 

and services to survivors from the age of 4 to 52, with a primary 

focus on minors through age 25, and in eight languages. 

In the past 5 years, we have gone from operating out of one 10- 

by-10-foot office to a small suite of offices and now to a care center 

and three safe houses. We currently care for about 190 survivors 

a year in Nashville and the surrounding area. 

Survivors need a plethora of wraparound services to meet their 

every need. Because trafficking victims suffer complex post-traumatic stress disorder, the restorative process can and usually does 

take years. To compound the trauma of trafficking, most victims 

were abused as children or suffer from a range of other adverse 

childhood experiences that made them vulnerable to exploitation in 

the first place. It is essential that an agency offer case management and a comprehensive array of specialized services until a survivor is ready to lead a productive and stable life. 

In Tennessee, we use a single-point-of-entry model, with one 

agency in each of the four regions of the State whose entire focus 

is on providing intensive case management and restoration of victims. Together, we form the Tennessee Anti-Slavery Alliance. This 

approach ensures that quality, consistent trauma-informed services 

are provided statewide in the most effective and efficient way possible and that victims don’t fall between the cracks. 

Thank you for this opportunity to address the committee, and I 

will welcome your questions later. 

[The prepared statement of Ms. Smith follows:] 

31 


PO Box 160069 Nashville, TN 37216 615-806-6899 

Derri Smith 

CEO, End Slavery Tennessee 

Before the 

Subcommittee on Communications and Technology 

United States House of Representatives 

Hearing entitled 

"Latest Developments in Combating Online Sex Trafficking" 

November 30,2017 

Chairman Blackburn, Ranking Member Doyle, members of the Subcommittee, thank you for 

holding this important hearing. It is an honor to offer testimony on the impact of technology on human 

trafficking victims and survivors. The short answer is that technology compounds, exposes and 

illuminates the victimization and violence against trafficking victims. The sexual exploitation 

perpetrated against people in the commercial sex industry is all across the internet. There is no place 

for survivors of human trafficking to hide, because their victimization has been put on display for the 

world to see. That public victimization exponentially complicates the healing process. 

Years ago, I met two teenage girls from Atlanta. They were deceived by a girl they thought 

was a friend, ended up with a trafficker, in a car with child safety locks, and driven to Nashville. This 

Page 1 of4 
32 


Derri Smith testimony 

man got a hotel room, popped an ad up online and was in business within half an hour. I was struck 

with how easy it was for him to sell girls- as easy as advertising a bicycle or car for sale. I was struck 

with how quickly men arranged to have sex with young people-as fast as ordering a pizza. In the 

ensuing years, I've heard variations of this story hundreds of times. Three out of four survivors we 

serve have been advertised online. Others have been recruited and groomed on-line. 

Thankfully, an undercover detective was answering online ads that day, posing as a John. He 

came to the girl's room and ended their exploitation within days of its start. They were the lucky ones. 

Once recovered, survivors face threats from predators online who arc waiting for them to surface. 

Especially in the early days of recovery, monitoring online activity is more challenging for us than 

monitoring phone usage. There are temptations, dangers and master manipulators ready to entice 

victims back with the promise of a dream that becomes a nightmare. 

When the Tennessee Bureau of Investigation (TBI) began a proactive attack on human 

traffickers, they called us at End Slavery Tennessee for assistance. That partnership had two initial 

prongs. First, they asked for help in understanding the technology landscape and how it affected 

trafficking victims. How were victims recruited, bought and sold across the internet? They needed 

first-hand information, and one of our young survivors was willing to tell them all she knew about 

being trafficked online. 

Second, the TBI wanted a more direct partnership during the undercover operations. That 

meant our survivor intervention specialist and case manager were on site during operations. When TBI 

identified a victim, she met with End Slavery Tennessee staff. These young women were offered 

services and a way out of exploitation. Some took the offer, some did not. They left with the 

Page 2 of4 
33 


Derri Smith testimony 

understanding that the offer didn't have an expiration date. The goal was to turn that very scary and 

often negative interaction with law enforcement into one of hope. 

Once a survivor comes into care at End Slavery Tennessee, the plan of care often depends on 

drug addiction, prior victimization, length of time enslaved and the age of the victim. We have provided 

care and services to survivors from four to fifty-two years old, with a primary focus on minors through 

age twenty-five, and in eight languages. In the past five years, we have gone from operating out of one 

ten-by-ten foot office to a small suite of offices, to now a Care Center and three safe houses. We 

currently care for about 190 survivors per year in Nashville and the surrounding area. 

Survivors need a plethora of wrap around services to meet their every need. Because trafficking 

victims suffer complex post-traumatic stress disorder, the restorative process can last years. To 

compound the trauma of trafficking, most victims were abused as children or suffered from a range of 

other adverse childhood effects which made them vulnerable to exploitation in the first place. It is 

essential that an agency offer case management and a comprehensive array of specialized services until 

a survivor is ready to lead a stable and productive life. 

In Tennessee, we use a single point of entry model, with one agency in each of the four regions 

of Tennessee whose entire focus is on providing intensive case management and the restoration of 

human trafficking victims. Together, we formed the Tennessee Anti-Slavery Alliance. This approach 

ensures that quality, consistent, trauma-informed services are provided statewide in the most effective 

and efficient way possible and that victims don't fall between the cracks, as often happens when 

systems of communication and collaboration are not in place. Survivors shouldn't have care options 

only in our large cities. We should meet their needs wherever they are. 

Page 3 of4 
34 


Derri Smith testimony 

About End Slavery Tennessee 

The mission of End Slavery Tennessee is to promote healing of human trafficking survivors 

and strategically confront slavery in our state with a vision to create a slave-free Tennessee. To 

accomplish this, we use the T.A.A.P. method. This method includes focus by End Slavery on Training, 

Aftercare, Advocacy and Prevention. 

Training- As experts in the field we train over 11,000 professionals and community members each 

year, equipping first responders to identify victims of human trafficking and have a broader sphere of 

influence in their field. 

Aftercare - We provide all survivors of any kind of human trafficking long term, comprehensive, 

specialized, trauma-informed aftercare through both in- house services and other community service 

providers. 

Advocacy- We work successfully on the local, state and national level to create effective 

collaboration and communication; accomplishing systemic change and influencing policy and laws. 

Prevention- We facilitate specialized groups to keep vulnerable youth safer, address the demand 

through interactive curriculum and equip the general population through innovative strategies and 

resources to prevent exploitation. 

More information can be found at endslaverytn.org. 

Page 4of4 
35 

Mrs. BLACKBURN. The gentlelady yields back. 

Mr. Winkler, you are recognized for 5 minutes. 

STATEMENT OF RUSS WINKLER 

Mr. WINKLER. Thank you. 

Chairman Blackburn, Ranking Member Doyle, members of the 

subcommittee, thank you for inviting me today. I am a special 

agent in charge with the Tennessee Bureau of Investigation and codirector of the Tennessee Fusion Center. One of my responsibilities 

is to oversee human sex trafficking investigations. 

Since 2011, thanks to our general assembly, our Governor, and 

my boss, TBI Director Mark Gwyn, we have been given better tools 

to combat this disgusting crime. We are proud that, this year, Tennessee ranked number one on Shared Hope International’s State 

report card, and that is due in large part to the sustained focus of 

our State leadership. 

As I sit here talking with you, I am overseeing 66 active human 

sex trafficking investigations with minor victims in big cities and 

small towns across Tennessee. In most of these cases, a sex trafficking perpetrator takes a child and forces, threatens, or coerces 

her—the victim is nearly always female—to engage in sex acts for 

money. In our experience, most cases involved the posting of ads 

for underage sex on Backpage.com, though Backpage is not the 

only site. 

To identify people seeking to engage in commercial sex acts with 

underage females, we use young-appearing female law enforcement 

officers to post ads online offering sex acts. We seed these ads with 

terms like ‘‘new to town’’ that are code in that environment for underage females. The undercover agents establish that they are 

under 18 in phone and text conversations with potential johns. All 

have been men so far in our investigations. 

Numerous men are not deterred by their juvenile status and 

eventually show up at the hotels, where we set up encounters with 

undercover agents. The agents meet with the men in a hotel room 

and, again, engage in conversation that proves that the offenders 

think that they are underage. Money is given to the undercover 

agents, and the men are promptly approached by uniformed law 

enforcement officers, who are waiting in the next room. 

For us, this is, unfortunately, a routine operation. The demand 

is staggering, and we know we are not unique among States. Our 

most recent undercover operation in a Nashville suburb resulted in 

21 men being apprehended over a 3-day period when they came to 

a hotel room to engage in sex acts with undercover female agents 

who they believed were juveniles. 

To target traffickers of underage girls, we use male undercover 

TBI agents posing as johns. Our undercovers respond to advertisements that our Fusion Center intelligence analysts find on 

Backpage.com. Our analysts use advanced software called Spotlight 

to help identify ads that have a strong likelihood of being minors. 

Rescuing victims of human sex trafficking is a priority for us. We 

have established strong cooperative relationships with nonprofit organizations and our State child protective services agency. The 

nonprofit organization End Slavery Tennessee is sometimes on site 

36 

during our operations. They offer services immediately on scene to 

women who come to the hotels answering Backpage ads. 

We have conducted operations and investigations involving numerous perpetrators and victims. The one constant we encounter in 

our investigations is the use of online platforms like Backpage.com 

by buyers and sellers of underage sex. 

Before I close, I want to point out that human sex trafficking 

cases offer another example of a crime that is enabled through 

emerging communications technologies. Victims are marketed on 

sites like Backpage.com, and traffickers and johns often use anonymous smartphone applications to facilitate and hide their negotiations over these children. This creates unique law enforcement 

challenges, which are sometimes referred to as ‘‘going dark’’ challenges. 

So, while we need tools to discourage online platforms from facilitating commerce in children, it is clear that we also need a legal 

framework that ensures law enforcement can get the additional 

evidence we need to investigate these horrible crimes. 

I appreciate the invitation to testify today and look forward to 

your questions. 

[The prepared statement of Mr. Winkler follows:] 

37 


Written Statement by 

Russ Winkler 

Special Agent in Charge 

Tennessee Bureau of Investigation 

Before the United States House of Representatives Committee on Energy and Commerce 

Subcommittee on Communications and Technology 

Hearing on 

"latest Developments in Combating Online Sex Trafficking" 

November 30, 2017 

Chairman Blackburn, Ranking Member Doyle, and Members of the subcommittee, thank 

you for the opportunity to speak to you today. I am a Special Agent in Charge with the 

Tennessee Bureau of Investigation. One of my responsibilities is to oversee human sex 

trafficking investigations. I also serve as Co-Director of the Tennessee Fusion Center. The TBI's 

human trafficking section is a sub-unit of the Criminal Intelligence Unit, which is based in the 

Tennessee Fusion Center. For more than 25 years, I have been involved in conducting and 

supervising criminal investigations, and in training other law enforcement officers in how to 

conduct criminal investigations. 

In 2010, the Tennessee General Assembly directed that a study be done on the impact 

of human sex trafficking in Tennessee. The TBI conducted the study in partnership with 

Vanderbilt University and published a report in 2011 titled Tennessee Human Sex Trafficking 

and Its Impact on Children and Youth. The report brought awareness to a crime about which 

most people knew very little up to that point. TBI Director Mark Gwyn described the results of 

the study as "shocking" because the study revealed that human sex trafficking in Tennessee 
38 


was more prevalent than first thought. Director Gwyn said that to effectively combat human 

sex trafficking in Tennessee, laws with more serious consequences were needed. By 2015, the 

TBI dedicated several agents to solely conduct criminal investigations into human sex trafficking 

and developed a training program to train all law enforcement officers in Tennessee on human 

sex trafficking. Since 2011, the Tennessee Governor has signed over fifty pieces of legislation 

passed by the General Assembly to combat human sex trafficking in our state. Because of the 

General Assembly's and Governor's leadership in making combatting human sex trafficking a 

top priority in Tennessee, we've been given the tools to combat this crime. 

This year Tennessee ranked number one on Shared Hope International's State Report 

Card based on the Protected Innocence Challenge legislative Framework, which is an analysis 

of state laws that sets a national standard of protection against minor sex trafficking. We are 

proud of that distinction. In particular, Tennessee received high marks for imposing substantial 

penalties for sex trafficking and for prohibiting the criminalization of minors engaged in 

prostitution. 

My first real understanding of human sex trafficking came in 2012, when the TBI was 

asked to investigate what was reported to us as possible exploitation of a minor. A Tennessee 

man sold his 15 year old step-granddaughter for sex to numerous other men he connected with 

through the website AdultFriendFinder.com. Although there is not always a familial connection 

between a trafficker and a trafficking victim, stories of adult men selling underage girls for sex 

are all too common, and are frequently facilitated through the use of social media and other 

online platforms. 
39 


In Tennessee, we open human sex trafficking investigations based on information we 

receive from various sources, including the Tennessee Human Trafficking Hotline, other law 

enforcement agencies, our state child protective services agency, and through our partnerships 

with non-profit organizations. 

Today as I sit here talking with you, the TBI has 66 active investigations into human sex 

trafficking where the victim is under 18. Circumstances vary, but there is a lot of commonality 

among these cases. An identified juvenile sex trafficking victim(s) has either run away from 

home and/or met someone online and there is a sex trafficking perpetrator(s) who takes the 

child and forces, threatens, or coerces her (the victim is nearly always female) to engage in sex 

acts for money. In most cases, the medium of choice for posting ads for underage sex is 

Backpage.com. 

A recent investigation came to us by a local law enforcement agency as a 

runaway/missing 15 year old girl who may have become the victim of human sex trafficking. 

Our investigation revealed that a 15 year old girl left home after meeting an adult male on 

Facebook. The man came to her small town and picked her up. Within a day the man set the girl 

up in a motel room in Nashville and she began advertising on Backpage. After a brief covert 

operation, we found the girl in the motel room, along with another 17 year old girl who had 

also been reported as missing. The man and another adult female were arrested for trafficking 

the girls for commercial sex. Unfortunately, these circumstances are all too common in the 

human sex trafficking investigations we conduct. 
40 


We also are currently working 16 active investigations into human sex trafficking where 

the victim is an adult. The circumstances of these cases are quite similar to the juvenile cases 

we investigate in that Backpage.com is very often used as a means of facilitating the 

encounters. 

The TBI takes a proactive approach to combating human sex trafficking by conducting 

covert operations that are focused on the demand side of human sex trafficking. We use a 

three pronged approach in our demand side covert operations. 

First, we focus on people seeking to engage in commercial sex acts with females who 

are younger than 18, which in Tennessee is a Class A felony if the minor is under 15 and a Class 

B felony if the minor is between 15 and 17. We accomplish this through the use of undercover 

law enforcement officers posing as females who are providing commercial sex acts as 

advertised on Backpage.com. Fusion Center Intelligence Analysts post, pay for, and monitor our 

ads on Backpage. As the female undercover agents start engaging in phone and text 

conversations with potential customers they establish through these conversations that they 

are juveniles. Up to this point the customers have always been male. The undercover agents 

typically tell the men they are communicating with that they are younger than 18. Some men 

are deterred by this and end the conversations. However, many are not deterred and continue 

to engage our undercover agents in conversation. Several men eventually show up at hotels 

where we set up encounters with undercover agents. The undercover agents meet with the 

men in a hotel room, and again engage in conversation that clearly establishes that they are 

juveniles so that it is further documented that the men are fully aware that they are about to 
41 


engage in commercial sex acts with a minor. Money is given to the undercover agents, and the 

men are promptly approached by uniformed law enforcement officers who are waiting in the 

next room. Members of this subcommittee have probably seen this scenario on TV a few times. 

For us, it is a now a routine operation. The demand is staggering and we know we are not 

unique among the states. 

TBI's most recent covert human sex trafficking operation was conducted in Brentwood, 

a suburb of Nashville. This operation was conducted in cooperation with the Brentwood Police 

Department and Homeland Security Investigations (HSI) under U.S. Immigration and Customs 

Enforcement (ICE). We posted ads on Backpage.com advertising our undercover agents. Over 

three days we received calls and text messages from 1,128 different phone numbers. There 

were a total of 7,879 calls and text messages exchanged between men and the undercover 

agents. Twenty one men were apprehended when they came to the hotel room and paid to 

engage in commercial sex acts with the undercover female agents, who they believed were 

juveniles. 

In the second prong of our demand side covert operations we focus on people who 

traffic others for commercial sex acts. We accomplish this through the use of male undercover 

TBI agents posing as "Johns" seeking to purchase adult and minor females to engage in 

commercial sex acts. The undercover "Johns" respond to advertisements that the Fusion Center 

Intelligence Analysts find on Backpage.com. Fusion Center Intelligence Analysts use advanced 

software called "Spotlight" to help identify ads that have a strong likelihood of being 

"immature", under the control of another person, or posted by minors. 
42 


In our recent covert operation in Brentwood we apprehended a man who brought an 

adult female to the hotel to engage in commercial sex acts with the undercover John. The man 

was in possession of $5,000 in cash, and had also recently been arrested in a nearby town for 

promoting prostitution. 

In the third prong of our demand side covert operations we focus on the rescue of 

human sex trafficking victims. This is accomplished through cooperation with non-profit 

organizations and our state child protective services agency. 

In our recent covert operation in Brentwood, the non-profit organization known as End 

Slavery Tennessee was on-site during this portion of the operation and was able to offer 

services to two women who came to the hotel answering ads we responded to that we found 

on Backpage.com. 

Since the inception of the TBI's human sex trafficking section, we've conducted 11 

covert human sex trafficking operations across Tennessee involving hundreds of perpetrators 

and victims. We've conducted operations in major cities, and in smaller towns. We are 

continually refining our operations to ensure safety of the agents and to ensure the legality of 

the cases made as a result of the operations. But the one constant we encounter in our 

investigations is the use of Backpage.com by buyers and sellers of underage sex. 

Before I close, I would like to take a moment to point out that human sex trafficking 

cases offer yet another example of a crime that is enabled through emerging communications 

technologies. Victims are marketed on sites like Backpage.com, and pimps and johns use 

smartphone applications to facilitate and hide their negotiations over these children. As in 
43 


other areas, more and more, evidence critical to securing justice for victims in the most serious 

crimes exists in the digital world. Online platforms and applications offer unprecedented power 

and convenience, but they create unique law enforcement challenges as well. We urge 

Congress to consider this as yet another example of the need for legal structure that ensures 

that law enforcement can access the digital evidence we need to keep the public safe. 

I appreciate the invitation to testify today. We are pleased to serve as a resource for 

this subcommittee as you consider policy improvements that can help us reduce the likelihood 

that children will be victimized and traumatized through the commission of these horrible 

crimes. 
44 

Mrs. BLACKBURN. Thank you. 

The gentleman yields back. 

Mr. Goldman, you are recognized for 5 minutes. 

STATEMENT OF ERIC GOLDMAN 

Mr. GOLDMAN. Thank you. 

Chairman Blackburn, Ranking Member Doyle, and members of 

the subcommittee, I applaud the efforts of Congress and this subcommittee to combat the horrible crime of sex trafficking. These efforts include the Allow States and Victims to Fight Online Sex 

Trafficking Act of 2017, called FOSTA. 

I defer to experts in the sex trafficking victim advocacy community about whether FOSTA would help victims. Based on my expertise in internet law, I will discuss FOSTA’s implications for 47 

U.S.C. 230, the law that Congress enacted in 1996 that says 

websites aren’t liable for third-party content. 

Section 230 ranks as one of Congress’ most important policy 

achievements in the last quarter-century. Section 230 touches 

deeply each of our lives by enabling the internet services we rely 

upon every waking hour. It also advances free speech by helping 

ordinary people communicate with a global audience for the first 

time in history. Furthermore, Section 230 improves marketplace efficiency across our entire economy and reduces entry barriers so 

that new and innovative online services can keep emerging. 

Section 230 is a globally unique policy. No other country provides 

such strong protections for online publishers of third-party content. 

This differentiation gives the United States a global competitive 

advantage for such services, which has helped create enormous social value here in the United States. 

Congress enacted section 230 in response to a 1995 ruling that 

an online service could be liable for user content because it had removed other objectionable content. The ruling created a dilemma 

for all online services that moderate user content. Online services 

had to choose between two strategies: one, exercise full editorial 

control over user content and accept liability for whatever legally 

problematic content they miss; or, two, minimize potential liability 

by exercising no editorial control over user content. 

Some services can’t afford to exercise full editorial control. Other 

services, such as tools for real-time communications, can’t function 

with full editorial control. Thus, if failing to moderate content perfectly leads to liability, some online services will abandon efforts to 

moderate user content or even shut down. 

Section 230 eliminated this moderator’s dilemma. Section 230 applies regardless of what online services do to moderate content or 

even what they know about user content. This means online services can deploy and experiment with a wide range of content moderation techniques without fearing liability for what they miss. 

This helps online services, but it also helps people access publication tools that let them reach new audiences. 

FOSTA would reinstate the moderator’s dilemma. For the first 

time in over 2 decades, it would cause online services to question 

whether they should moderate content. Some services will conclude 

that it is too risky to do so. If online services reduce or eliminate 

their moderation efforts, FOSTA may counterproductively cause a 

45 

net increase in sex trafficking promotion and all other types of 

antisocial content. 

Section 230 does not give a free pass to online services facilitating sex trafficking. Section 230 does not limit Federal criminal 

prosecutions, and the Department of Justice has prosecuted online 

services for publishing third-party ads, including at least two prosecutions against services, MyRedBook and Rentboy, that facilitated 

online prostitution. Furthermore, in the 2015 SAVE Act, Congress 

criminalized online advertising of sex trafficking, and a Phoenix 

grand jury has been investigating Backpage. 

Congress can balance additional anti-sex-trafficking initiatives 

with section 230’s benefits by: one, ensuring that online services 

face only a single Federal standard of liability rather than Stateby-State variations that will make it difficult or impossible for online services to determine what law applies to them; two, encouraging online services to continue performing socially valuable content moderation efforts by basing liability on an online service’s intent to facilitate illegal activities, not on what it knows, and expressly saying that online services shall not be legally penalized for 

their moderation efforts. I oppose FOSTA because it does not to 

conform to either principle. 

Thank you for the opportunity to address the subcommittee on 

this very important matter. 

[The prepared statement of Mr. Goldman follows:] 

46 


Santa Clara 

University 

U.S. House of Representatives Committee on Energy and Commerce 

Subcommittee on Communications and Technology 

Hearing on "Latest Developments in Combating Online Sex Trafficking" 

November 30,2017 

Written Remarks of Professor Eric Goldman 

Santa Clara University School of Law• 

Summary of Major Points: 

* Section 230 ranks as one of Congress' most important policy achievements in the past quartercentury. 

*Section 230 means that online services can deploy, and experiment with, a wide range of 

content moderation techniques without fearing liability for whatever they miss. 

* Congress can balance anti-sex trafficking initiatives with Section 230's benefits by (1) 

exposing online services only a single federal standard of liability rather than state-by-state 

variations; and (2) encouraging online services to keep performing socially valuable content 

moderation efforts. 

• Professor of Law, Co-Direc.tor of the High Tech Law Institute, and Co-Supervisor ofthe Privacy Law Certificate, 

Santa Clara University School of Law. I'm testifying on own behalf, not on behalf of my employer or anyone else. I 

started practicing Internet Law in 1994, and l started teaching Internet Law in January 1996-in both cases, before 

Section 230 was enacted. Email: egoldman@gmail.com. Website: http://www.eri£g_Q.[_dman.&rg. 
47 


Chairman Blackburn, Ranking Member Doyle, and Members of the Subcommittee: 

I applaud the efforts of Congress and this subcommittee to combat the horrible crime of 

sex trafficking. These efforts include the "Allow States and Victims to Fight Online Sex 

Trafficking Act of2017" (sometimes called "FOSTA"). 1 I defer to experts in the sex trafficking 

victim advocacy community about whether FOSTA would help victims.2 Based on my expertise 

in Internet law, I'll discuss FOSTA's implications for47 U.S.C. §230 (Section 230), the law 

Congress enacted in 1996 that says websites aren't liable for third party content. 

Section 230 Is One of Congress' Greatest Policy Achievements 

Section 230 ranks as one of Congress' most important policy achievements in the past 

quarter-century. 3 Section 230 deeply touches each of our lives by enabling the Internet services 

we rely upon every waking hour.4 It also advances free speech by helping ordinary people 

communicate with a global audience-for the first time in history. Furthermore, Section 230 

improves marketplace efficiency across our entire economy5 and reduces entry barriers so that 

new and innovative online services keep emerging. 

1 Appendix I compares FOSTA with the most recent version ofSESTA. 2 The expert community is not unanimous that FOSTA would help victims. See, e.g., Alex F. Levy, How Section 

230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them), Tech. & Mktg. L. Blog, Aug. 15, 2017, 

http://blog.ericgoldman.org/arch ives/20 17/08/how-section-230-helps-sex -trafficking-victims-and-sesta-wou ld-hurtthem-guest-blog-post.htm; Nyssa P. Chopra, Another Human Trafficking Expert Raises Concerns About SESTA, 

Tech. & Mktg. L. Blog, Nov. 2, 2017, http://blog.ericgoldman.org/archives/20 17111/another-human-traffickingexpert-raises-concems-about-sesta-guest-blog-post.htm; Freedom Network Urges Caution in Reforming the CDA, 

https://www.eff.org/files/2017/09/18/sestahearing-freedomnetwork.pdf; Letter from Kristen DiAngelo, Executive 

Director, Sacramento Sex Workers Outreach Project, to Sens. John Thune & Bill Nelson, 

https://www.eff.org/files/2017/09/18/sestahearing-sac-swop.pdf; SWOP-USA Stands In Opposition of Disguised 

Internet Censorship Bill SESTA, S. I963, Aug. 11, 2017, http://www.new.swopusa.org/2017/08/11/ca!l-toactionpress-release-swop-usa-stands-in -direct-opposition-of-disgu ised-internet-censorship-bi 11-sesta-s-1963-callyour-state-representatives-and-tell-them-to-fight/. 

3 Eric Goldman, The Ten Most Important Section 230 Rulings, 20 TULANEJ. TECH. &I.P._ (2017), 

https://ssm.com/abstracF=3025943. 

4 The I 0 most-trafficked U.S. websites (as ranked by Alexa in October 20 17) all rely heavily on Section 230. The 

sites are Google, YouTube, Facebook, Reddit, Amazon, Yahoo, Wikipedia, Twitter, eBay and Linkedln. 5 I explain how Section 230 improves marketplace efficiency in Appendix 2. 

2. 
48 


Section 230 is a globally unique policy .

6 No other country provides such strong 

protections for online publishers of third party content. This differentiation gives United States a 

global competitive advantage for such services, which has helped create enormous social value 

in the U.S.7 

Section 230 Avoids the Moderator's Dilemma 

Congress enacted Section 230 in response to a 1995 ruling that an online service could be 

liable for user content because it had removed other objectionable content.8 

The ruling created a dilemma for all online services that moderate user content. Online 

services had to choose between two strategies: (I) exercise full editorial control over user content 

and aecept liability for whatever legally problematic content they miss, or (2) minimize potential 

liability by exercising no editorial control over user content. 

Some services can't afford to exercise full editorial control, and other services (such as 

tools for real-time communication) can't function with full editorial control. Thus, if failing to 

moderate content perfectly leads to liability, some online services will abandon their efforts to 

moderate user content or even shut down. 

6 ERIC GOLDMAN, INTERNET LAW: CASES & MATERIALS 330 (July 14, 2017 ed.). 7 Christian M. Dippon, Economic Value of Internet Intermediaries and the Role of Liability Protections, NERA 

Consulting, June 5, 2017, https://cdn 1.internetassociation.org/wp-contentlup1oads/20 17/06/Economic-Value-oflnternet-lntermediaries-the-Role-of-Liability-Protections.pdf; David Post, A Bit of Internet History, or How Two 

Members of Congress Helped Create a Trillion or So Dollars of Value, Vo1okh Conspiracy, Aug. 27,2015, 

https:/ /www .washingtonpost.com/news/volokh-conspiracy/wp/20 15/08/27 /a-bit -of-internet-historv-or-how-twomembers-of-congress-helped-create-a-trillion-or-so-dollars-of-value/?utm term= .87 428a71 Oed7. 8 Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995) ("PRODIGY held itself 

out to the public and its members as controlling the content of its computer bulletin boards [and] implemented this 

control through its automatic software screening program, and the Guidelines which Board Leaders are required to 

enforce"). 

3. 
49 


Section 230 eliminated this "moderator's dilemma." Section 230 applies regardless of 

what online services do to moderate content or even what they "know" about user content. This 

means that online services can deploy, and experiment with, a wide range of content moderation 

techniques without fearing liability for whatever they miss. This helps online services, but it also 

helps people access publication tools that let them reach new audiences. 

FOSTA would reinstate the moderator's dilemma. For the first time in over two decades, 

it would cause online services to question whether they should moderate content. Some services 

will conclude that it's too risky to do so. If online services reduce or eliminate their moderation 

efforts, FOSTA may counterproductively cause a net increase in sex trafficking promotions (and 

aH other types of anti-social content). 

Combating Sex Trafficking While Preserving Section 230 

Section 230 does not give a "free pass" to online services facilitating sex trafficking. 

Section 230 does not limit federal criminal prosecutions,9 and the Department of Justice has 

prosecuted online services for publishing third party ads, including at least two prosecutions 

against services (MyRedbook and Rentboy) that facilitated online prostitution. 1

° Furthermore, in 

the 2015 SAVE Act, Congress criminalized online advertising of sex trafficking, and a Phoenix 

grand jury has been investigating Backpage.com. 

Congress can balance additional anti-sex trafficking initiatives with Section 230's 

benefits by: 

9 47 U.S.C. § 230(e)(l). 10 Cary Glynn, The DOJ's Busts ofMyRedbook & Rentboy Show How Backpage Might Be Prosecuted, Tech & 

Mktg. L. Blog, Sept. 28, 20!7, http:lib!og.ericgoldman.orglarchives/2017/09/the-dojs-busts-of·myredbook-rentboyshow-how·backpage-might·be·prosecuted-guest-blog·post.htm. 

4. 
50 


I) Ensuring that online services face only a single federal standard of liability, rather than 

state-by-state variations that will make it difficult or impossible for online services to determine 

what law applies to them. 

2) Encouraging online services to continue performing socially valuable content 

moderation efforts by: (A) basing liability on an online service's intent to facilitate illegal 

activities, not what it "knows," and (B) expressly saying that online services shall not be legally 

penalized for their moderation efforts. 11 

I oppose FOSTA because it does not conform to either principle. Thank you for the 

opportunity to address the subcommittee on this important topic. 

11 I proposed this addition to SESTA: "The fact that a provider or user of an interactive computer service has 

undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove, material it 

considers objectionable shall not be considered in determining its liability for any material that it has not removed or 

restricted access to." See Eric Goldman, Answers to Questions for the Record Regarding S. 1693, the Stop Enabling 

Sex Traffickers Act of2017, Nov. 6, 2017, 

http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2593&context=historical. 

5. 
51 


Appendix 1: Comparison ofFOSTA and SESTA 

This chart compares the major differences between the Allow States and Victims to Fight 

Online Sex Trafficking Act of2017 (FOSTA), as introduced in the House of Representatives on 

April 3, 2017, and the Stop Enabling Sex Traffickers Act of 2017 (SESTA), as passed by the 

Senate Committee on Commerce, Science, and Transportation on November 8, 2017. 

FOSTA SESTA 

State crime Section 230 excludes "section 1591 of such Section 230 excludes "any charge in a 

enforcement title (relating to sex trafficking)"; "any criminal prosecution brought under State 

State criminal statute that prohibits--(i) law if the conduct underlying the charge 

sexual exploitation of children; (ii) sex constitutes a violation of section 1591 of 

trafficking of children; or (iii) sex title 18, United States Code." 

trafficking by force, threats of force, fraud, 

or coercion"; and victim restitution. 

Civil enforcement Section 230 excludes "section 1595 of title Section 230 excludes "any claim in a civil 

18, United States Code" and "any other action brought under section 1595 of title 

Federal or State law that provides causes of 18, United States Code, if the conduct 

action, restitution, or other civil remedies underlying the claim constitutes a violation 

to victims of (i) sexual exploitation of of section 1591 of that title." 

children; (ii) sex trafficking of children; or 

(iii) sex trafficking by force, threats of Also: "In any case in which the attorney 

force, fraud, or coercion." 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." 

What constitutes "knowing or reckless conduct by any "knowingly assisting, supporting, or 

"participation in a person or entity and by any means that facilitating a violation of subsection 

[sex trafficking] furthers or in anyway aids or abets the (a)( I)." 

venture" violation of[l8 U.S.C. §l59l](a)(l)." 

New crime "Whoever, being a provider of an NIA 

interactive computer service, publishes 

information provided by an information 

content provider, with reckless disregard 

that the information provided by the 

information content provider is in 

furtherance of an offense under subsection 

(a) or an attempt to commit such an 

offense, shall be fined in accordance with 

this title or imprisoned not more than 20 

years, or both." 

6. 
52 


Other provisions, such as legislative findings, statements about Section 230's policy, and 

retroactivity, are substantively identical in both bills. However, SESTA contains a more detailed 

savings clause to supplement the retroactivity provision. 

7. 
53 


Appendix 2: How Section 230 Facilitates Marketplace Efficiency* 

Congress enacted 47 U.S.C. § 230 in 1996, at the height of"Internet exceptionalism"-

the belief that the Internet was a unique medium compared to other media. Thus, the law 

represents an unusual example of legislative restraint. Fearing that Congress, state legislatures or 

the courts would develop rules that prevent the Internet from reaching its full potential, Congress 

immunized online intermediaries from liability for publishing third party content-even in 

situations where offline intermediaries would face liability for publishing the exact same content. 

Treating the Internet as a unique medium has led to the advent of consumer reviews, a 

whole new class of content we never saw in the offline world. Consumer opinions about goods 

and services in the marketplace have been shared for millennia, principally as oral "word of 

mouth." However, prior to the Internet, consumers could not easily share their opinions with 

larger audiences. In contrast, the Internet allows consumers to share their opinions with a mass 

audience at virtually no cost. Humankind has never seen a phenomenon like this before. 

While consumers value other consumers' reviews generally, they especially value 

comprehensive and curated databases of other consumers' reviews. However, ifwebsites faced 

liability for gathering and curating consumer reviews, they would be reluctant to undertake those 

efforts. 47 U.S.C. § 230 provides them a legal immunity for these generation, curation and 

publication efforts. The result has been a proliferation of consumer review websites. 

Thus, 47 U.S.C. § 230 helps create an unprecedented class of published contentconsumer reviews-by providing legal immunity to consumer review websites for generating, 

curating and publishing those reviews. 

·Adapted from Eric Goldman, Expert Report on the Value of Consumer Review Websites and 47 USC 230, Tech. & 

Mktg. L. Blog, Nov. 12, 2012, http://blog.ericgoldman.org/archives/2012/l 1/expert report o.htm. 

8. 
54 


The marketplace's "invisible hand"-the mechanism that rewards good producers and 

punishes bad producers--depends on well-informed consumers. Consumer reviews educate other 

consumers about which producers deserve their dollars. Plus, vendors become more responsive 

to consumers' demands, knowing they will be publicly accountable for how well they meet 

consumers' needs. Consumer reviews thus improve our marketplace's operation. 

By strengthening America's marketplace, 47 U.S.C. § 230 improves our country's 

competitive position compared to other countries. No other country provides as generous a legal 

immunity for consumer review websites as 47 U.S.C. § 230. Instead, in other countries, 

businesses typically can "veto" consumer reviews they don't like; and naturally, they will only 

veto critical reviews. Compared to their foreign counterparts, American consumers have more 

access to consumer reviews--especially negative consumer reviews-to guide their marketplace 

choices. Over time, as consumer reviews improve the "invisible hand" of American consumers, 

the American marketplace will become more efficient than foreign marketplaces. Ultimately, 47 

U .S.C. § 230 will help make the American economy stronger than foreign economies. 

9. 
55 

Mrs. BLACKBURN. Thank you, Mr. Goldman. 

The gentleman yields back. That concludes our testimony. 

At this time, I have several documents to enter for the record: 

Shared Hope International, Exodus Cry, the National Center on 

Sexual Exploitation, and the Coalition Against Trafficking in 

Women submit a statement. We have a letter from Shared Hope 

International; an article from The Register-Guard; a letter written 

April 3, 2012, that Ms. Maloney and I did to Google, Larry Page 

of Google, questioning Backpage, so we have been working on this 

for quite a while; and then a letter submitted and testimony from 

Mr. Chris Cox, partner from Morgan Lewis, and he is the outside 

counsel for NetChoice. 

Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mrs. BLACKBURN. So let’s begin our questions. 

And, Mr. Winkler, I want to come to you to begin. You referenced 

the sting that you had conducted, and we all know that that made 

headlines, of course, in Tennessee but also around the country. And 

we have looked at how Tennessee is number one in Shared Hope 

International’s study. 

And what I would like to hear from you and I think everyone on 

this panel, Democrat and Republican, would like to hear from you, 

what do you think has made the difference in Tennessee? What do 

you use most within the law? What would you like to see changed? 

The partnership—Ms. Smith, you may want to weigh in on this— 

but you are doing something different. You are getting results. 

And I would like for you to begin, Mr. Winkler, and then, Ms. 

Smith, for you to add to his answer. 

Mr. WINKLER. Yes, Chairman. I think that the continued commitment by the general assembly and the Governor and the TBI director to support human trafficking investigations and our partnerships across the State with the nonprofit organizations and our 

partnership with our State’s child protective services agency, all 

those things combined have been a tremendous help in Tennessee. 

A lot of emphasis has been placed on enhancements in the law 

to make it more punishable for both buyers and sellers of sex acts 

with juveniles. And I think that all those things combined is what 

has really helped us in Tennessee combat this problem. 

Mrs. BLACKBURN. OK. 

Ms. Smith? 

Ms. SMITH. I agree. I think it takes all parts of the puzzle working together. So you have to have law enforcement, legislature, the 

courts, child protective services, and service providers all working 

together communicating and collaborating together. I think that is 

something we do very well. 

Law enforcement does work we can’t do—investigate, prosecute 

the perpetrators, rescue. We can bring a survivor and an advocate 

perspective so that they can work in a trauma-informed way. We 

can bring survivors on the scene at those stings to build trust and 

transfer that trust to law enforcement so they are a lot more likely 

to cooperate. And if you don’t have services in place for the victims, 

they are not going to stick around to make a good case. So everything intersects together. 

56 

Mrs. BLACKBURN. Let me ask you this. How are you all working 

in educating healthcare professionals? 

Ms. SMITH. We actually, right now, are working with one of the 

large hospital systems. They have been working with us for about 

a year to create training for all of their staff nationwide. We are 

doing a beta rollout now in our region to train everybody from ER 

staffs to the receptionists at clinics. 

And we have a protocol in place so that they have a trauma-informed response. So they know to call the hotline number, they 

know the protocol for service provision, for mandatory reporting. 

And then, in our case, we bring survivors on the scene from our 

staff to be there immediately to build their trust and to offer them 

services. 

Mrs. BLACKBURN. OK. 

I want to go to you, Ms. Souras and Ms. Smith. I did some reading in preparation for the hearing and looking at who is kind of the 

target victim for this, and many times it seems as if it is young 

girls who are in State or foster care custody, if you will. 

And I would like for you—we will begin with you, Ms. Souras, 

and then to Ms. Smith—to just talk about how these perpetrators 

of the crime go about targeting these victims, and then add if there 

is anything you think we could do differently. 

Ms. SOURAS. Absolutely. Thank you, Chairman Blackburn. 

You are absolutely right that the location of the child often has 

great bearing on whether they were vulnerable to being exploited. 

NCMEC really views child sex trafficking victims as a missingchild problem. In our experience, and as an example, just last year, 

in 2016, one of six runaways reported to us were likely sex trafficking victims, and, of those, 86 percent were running from State 

care. So definite correlations between children who were running 

away and also where they are running away from and, again, their 

ultimate vulnerabilities. 

In our experience, the average victim is a girl, even though there 

are boys and LGBTQ youth, of course, who are trafficked as well. 

But, again, average victim is a girl about 151⁄2 years old. Between 

15 and 17 is the general age range we see. 

And, typically, these are children who are really experiencing an 

array of vulnerabilities. They are looking for something. It might 

be a parental figure. It might be love or affection, someone to care 

about them. You know, we often talk about children who are seeking, really, human basic requirements—safety, security, shelter. 

These are children who, you know, are not receiving that in their 

current home or social services setting. So they are very susceptible 

to false promises, false promises of love, shelter, again, security— 

very basic needs. And that really is how they are lured. 

These are children who are, you know, often seeking just the 

smallest remnant of kindness from someone, so the smallest extension of that from a trafficker. And traffickers know who to extend 

that to and what that child might be looking for. That is often 

enough, just, again, for them to feel like someone has done something kind for them or something to care about for them. 

Mrs. BLACKBURN. Ms. Smith? 

Ms. SMITH. I ditto that 100 percent. 

57 

And I will say that foster care and the State custody system is 

a perfect pool for exploitation, because you have those children who 

are vulnerable. And we know lots of girls who were actually recruited within the system, out of group homes. There would be 

somebody who was recruiting on behalf of a trafficker. 

It is a system that sets things up for exploitation because these 

girls learn, ‘‘Oh, I have a family who gets paid to take care of me.’’ 

That kind of mentality can transfer to a trafficker. ‘‘Well, he is 

going to take care of me, and it is reasonable that he is getting 

money to do so.’’ 

And I think I would add, though, that there is such a thing as 

familial trafficking. There are family members who traffic their 

children for money for drugs, usually, or for alcohol. And so, in that 

State system, when we are dealing with child services, there needs 

to be a track that is identifying those children and that is giving 

them the kind of specialized care that they need. They can’t just 

be lumped in with the truants and the runaways and the unruly 

children. There needs to be a track that quickly gets them into the 

services they need. 

Mrs. BLACKBURN. Thank you. 

My time has expired, and at this time I yield to Mr. Doyle, 5 

minutes. 

Mr. DOYLE. Thank you, Madam Chair. 

Mr. Goldman, in your testimony, you mention two ways you believe that Congress can achieve a balanced solution: first, by avoiding a patchwork of State laws, which websites would have to comply; and then, secondly, by targeting a website’s intent to facilitate 

illegal activities. 

I wonder, have you seen Mr. Goodlatte’s proposed amendment to 

Mrs. Wagner’s legislation that involves targeting the facilitation of 

prostitution with a specific intent standard and carving out State 

criminal laws that would do the same thing? Would such a proposal serve that purpose of balance? 

Mr. GOLDMAN. I have seen the proposed legislation, and I do 

think that the effort to focus on the specific intent to facilitate prostitution is a productive way of approaching the issue. And I consider it to be superior than the alternatives that I have seen. 

Mr. DOYLE. You know, I want to again applaud the good work 

of the Senate Permanent Subcommittee on Investigations because 

they bringing the details of this issue in focus. And after reading 

their staff report, it is clear that Backpage.com not only profited 

from online sex trafficking but that Backpage.com also helped to 

develop content for online sex traffickers. 

Now, Professor Goldman, it is my understanding that section 230 

does not protect the website when it develops content in this way. 

So could you explain for us where the courts have drawn the line 

between developing content which is not protected and allowing 

third-party posts, which is? 

Mr. GOLDMAN. The statute excludes anyone—it is protection for 

anyone who creates or develops content in whole or in part. So 

someone who develops content in part is not covered by the statute 

per its terms. 

In my opinion, the courts have interpreted that to really say that 

the party doesn’t qualify for the section 230 immunity if they deVerDate Mar 15 2010 12:02 Mar 08, 2018 Jkt 037690 PO 00000 Frm 00061 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X84SEXTRAFFICKINGASKOK030518\115X84SEXTRAFFICKINGP
58 

velop what is illegal about the content. And so there is a nexus between developing the content and developing what made it illegal. 

And I think that that is a helpful guidance for us to think about. 

Mr. DOYLE. So if the facts that were laid out in the Senate report 

are true, do you think Backpage.com can continue to use section 

230 as a shield? 

Mr. GOLDMAN. I must say that the facts have raised a lot of 

questions about exactly how we interpret the statutory language, 

and I am eager to see what the courts end up doing with the facts 

that they have. 

Certainly, in Backpage’s case, we have a lot of suspicion about 

the legitimacy of their motives. But some of what they were doing 

are common tactics on the internet, and we need to make sure that 

whatever happens to Backpage doesn’t also create problems for the 

other sites that might be doing similar things but with a much less 

pernicious objective. 

Mr. DOYLE. Mrs. Wagner’s SAVE Act was recently passed into 

law. And can you tell us what tools this legislation gives law enforcement in pursuing sites like Backpage and how prosecutors and 

their investigators are starting to utilize it in their investigation? 

And maybe you and Mr. Winkler could respond to that. 

Mr. GOLDMAN. So the SAVE Act criminalized knowingly advertising sex trafficking. And that is a new crime that did not exist, 

So it did cover some new area that had not been covered by any 

other crime. 

That law was just passed in 2015. I don’t know what the typical 

turnaround times are for new crimes being enacted and the actual 

usage of them. So it is fairly early in the development of that particular law to gauge whether or not it has been effective. 

We do know that there is a grand jury investigation that has 

been investigating Backpage in Phoenix. We don’t know what is 

going on in the grand jury investigation because that is a black box 

to us; it takes place under the cloak of secrecy. But it would be logical to me that the SAVE Act would be one of the grounds on which 

the DOJ has asked the grand jury to investigate Backpage. 

Mr. DOYLE. Mr. Winkler, have you been able to utilize that act 

in any of your investigations or prosecutions? 

Mr. WINKLER. No, sir. I am not familiar with the details of that. 

But did you have a question, too, about Spotlight, or did I misunderstand? 

Mr. DOYLE. No, I didn’t. 

Mr. WINKLER. OK. Well, I am not familiar with that act, sir. 

Mr. DOYLE. OK. Thank you. 

Madam Chair, I will yield back. 

Mrs. BLACKBURN. The gentleman yields back. 

Mr. Guthrie, 5 minutes. 

Mr. GUTHRIE. Thank you, Madam Chairman. 

So I was sitting here just listening, and Ms. Smith described how 

quickly girls or ladies were transferred from Atlanta to Nashville 

and set up—I think you said as easy as ordering a slice of pizza. 

And Mr. Winkler commented specifically on the online platforms 

and the difficulty it has had in trying to deal with this. 

And I know section 230 was passed in 1996 through a Republican Congress, through this committee. But when you hear the stoVerDate Mar 15 2010 12:02 Mar 08, 2018 Jkt 037690 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X84SEXTRAFFICKINGASKOK030518\115X84SEXTRAFFICKINGP
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ries of what is coming out of this, it has to be addressed—absolutely has to be addressed. 

And, Mr. Goldman, when Mr. Doyle asked you about the Goodlatte amendment, I noticed you said it is superior to the current 

bill, but do you think it is acceptable and something you would like 

to see passed into law? 

Mr. GOLDMAN. Personally, I would favor waiting to see how the 

developments play out in the courts. There are a number of developments taking place right now that are very germane to what we 

are discussing. 

For example, just on Tuesday, a Backpage challenge against the 

Missouri attorney general investigation was dismissed, in part with 

the court noting that section 230 may not protect Backpage and 

that would not be the grounds to hold back the Missouri AG investigation. 

So we know right now things are taking place, and my preference would be to see how that plays out. 

Mr. GUTHRIE. So there is no amendment acceptable? You would 

rather this legislation sit until some court makes a decision? 

Mr. GOLDMAN. I think that—— 

Mr. GUTHRIE. Or do you have something that would be acceptable now? 

Because the issue is, we hear that a lot in Congress. The legislative branch, we do things, and we will let the court clarify, we will 

let them move forward, you know. In my personal opinion, it is our 

job to do that. If we know there is a problem that needs to be out 

there, we don’t need to wait, ‘‘Well, let’s see what a court decision 

is going to do,’’ if we can clarify that ourselves. I think that is what 

the American people expect. 

And so is there not anything we could do now that you would 

find acceptable that might address the problem, or do you think we 

should just wait on a court? 

Mr. GOLDMAN. Yes—no, I respect that, that the whole reason 

why we are here is because you are in the position to take advantage of the tools that you have to solve the problems that you see. 

I think that the best call is to let the existing law that Congress 

enacted in 2015 and all the other laws that Congress passed play 

out. If we are going to pursue legislation—like you said, that is 

what Congress does—I do think that the two principles I mentioned would be the guiding principles for how I would consider legislation to be acceptable. 

Mr. GUTHRIE. Thanks. 

On another topic, Ms. Souras, the Missouri attorney general, in 

your testimony, you specifically said that one of the issues is the 

patchwork attorney generals are having to move forward. What is 

the issue with going State by State versus us addressing this? Why 

does it need to be addressed here instead of waiting for a Stateby-State attorney generals process? 

Ms. SOURAS. Thank you, Representative Guthrie. 

What we really have seen over the past few years is more or less 

a complete foreclosure on the State attorneys general in their ability to protect children from trafficking in their own States. 

And I will point to the California attorney general’s investigation 

and subsequent attempts to prosecute Backpage not once but twice 

60 

on pimping charges over the past, I believe, 2 years. After a very 

long investigation into Backpage, pimping and, you know, other related charges were filed against Backpage in the Sacramento Superior Court by the State attorney general’s office. The court dismissed all of the pimping charges based on the broad interpretation of the CDA. 

Just before Attorney General Kamala Harris moved to the Senate at the end of 2016, she had her office refile those pimping 

charges with some additional facts developed to try to answer to 

the court’s last order. And the judge, the new judge, in the second 

case, again dismissed the pimping charges, again based on the 

Communications Decency Act. 

So what we have at this point and what we have heard from the 

courts, including the courts in California, is really that Congress 

needs to clarify that State attorneys general can join this battle, 

that they can join Federal prosecutors. I know you didn’t ask about 

civil remedies and civil attorneys, but it is the same in that realm 

as well. Currently, State attorneys general simply do not have the 

ability to get around the CDA. 

Mr. GUTHRIE. Thank you. 

And I have been to NCMEC, and I actually have a bill that has 

passed the House and hopefully reauthorizing NCMEC as we go 

forward. And I was going to ask you a question about that, but I 

will save that. I am running out of time. 

Just to say, what your people in that building go through every 

day, we are blessed as Americans to have people willing to do that 

kind of work. It is disturbing to see, but we have people there 

doing it. And I am sure, Ms. Smith, you are seeing the same; Mr. 

Winkler, the same thing. And it is really good that we have people 

on the front lines trying to combat this. And we need to give them 

the tools. We need to be judicious, but we also need to give them 

the tools available to do it. 

And thank you for being here. 

I yield back. 

Mrs. BLACKBURN. The gentleman yields back. 

Mr. McNerney, you are recognized for 5 minutes. 

Mr. MCNERNEY. Well, I thank the chairwoman, and I thank the 

witnesses today. This is a difficult subject and something that 

needs to be done. It is urgent. 

Ms. Souras, in 2015, Congress passed the Stop Advertising Victims of Exploitation, or the SAVE Act. Do you think the SAVE Act 

has been effective in giving prosecutors the tools to bring down 

sites like Backpage.com? 

Ms. SOURAS. Thank you for the opportunity to address that. And 

I will, you know, piggyback a little bit on what Mr. Goldman said. 

He did explain that the SAVE Act was enacted at the end of 2015. 

It basically added advertising as one of the new predicate acts that 

one could commit under the Federal trafficking statute. 

One thing that is very important, though, to take into account 

is that the statute was enacted at the end of 2015. Backpage immediately filed court papers in the Federal court here in the District 

of Columbia to basically enjoin that statute, saying that it was unconstitutional. They filed suit against the Department of Justice. 

That case was not resolved until October of 2016. 

61 

So, even though it may feel as though the law has been around 

for a couple of years and no one has used it, I would, you know, 

provide a bit of a counter view on that and say the law has really 

only been available to prosecutors out from under the specter of 

what that court’s decision might have been for just about a year, 

which simply is not a long time when you think of a Federal investigation to be teed up and pursued. 

Mr. MCNERNEY. And I was going to ask you, first of all, are we 

clear of courts possibly overturning the SAVE Act at this point? Is 

the SAVE Act safe, you know, in legislative/judicial terms? 

Ms. SOURAS. Well, it was a curious decision that the DC District 

Court issued. They did not actually address the substance of the 

constitutionality issue. They actually found that Backpage did not 

have appropriate standing, and they ruled on ancillary issues. So 

one could view that act as still being susceptible, if it were used 

in a prosecution, to constitutionality arguments. 

Mr. MCNERNEY. Well, do you think that the Congress needs to 

examine whether Federal prosecutors and investigators have sufficient resources to combat online sex trafficking? 

Ms. SOURAS. So I think that is always a valid measure. You 

know, certainly at NCMEC we have such close partnerships with 

Federal and State law enforcement, and we, you know, always are 

encouraged by discussions around offering them more resources. 

But what I would—what I would suggest is that what Federal 

prosecutors need is not necessarily more resources or new laws; 

they need more players on their team. And by that I mean State 

attorneys general and civil attorneys as well. 

Mr. MCNERNEY. That was my next question. Does the Goodlatte 

amendment allow State prosecutors to go ahead and prosecute 

cases as long as they comply with Federal requirements? 

Ms. SOURAS. So the language that I have seen, which I understand is very much in flux and has shifted again, I believe, since 

I saw a draft of it, permits that in extremely limited ways, and I 

would argue much more limited than the current FOSTA bill or the 

Senate bill, SESTA. 

Mr. MCNERNEY. Thank you. 

Professor Goldman, thanks for coming out here from the bay 

area. I want to make sure I understand a few things about section 

230. Does section 230 prohibit Federal law enforcement from going 

after websites that host advertisements for sex trafficking? 

Mr. GOLDMAN. No. 

Mr. MCNERNEY. Does section 230 protect individuals that actively engage in sex trafficking? 

Mr. GOLDMAN. No. 

Mr. MCNERNEY. In your written testimony, you state that section 

230 ranks as one of Congress’ most important policy achievements 

in the past 25 years, a quarter century. What makes that section 

so important? What gives it the teeth that it has? 

Mr. GOLDMAN. It becomes the infrastructure for the entire internet ecosystem, which itself is infrastructure for our entire society. 

So the one little thing it does, saying publishers aren’t liable for 

third-party content, creates this vast array of activity that wouldn’t 

exist for any other reason except for the internet and its 

enablement through section 230. 

62 

Mr. MCNERNEY. What would the world—or the internet world— 

what would the internet look like without 230? 

Mr. GOLDMAN. Well, we have some examples about that because 

we see what it looks like in other countries. And they don’t have 

the same kind of robust user to user interactivity that we have 

here in the United States. If they have it, it is because it is provided by companies based here in the U.S. 

Mr. MCNERNEY. So basically 230 is doing what it is supposed to 

do, and we may not need to amend it until we find out if it is effective as we hope it is? 

Mr. GOLDMAN. Section 230 is a very powerful statute, and so 

amendments to it have potential for very dramatic effects. 

Mr. MCNERNEY. Thank you. I yield back. 

Mrs. BLACKBURN. The gentleman yields back. 

Mr. Olson, 5 minutes. 

Mr. OLSON. I thank my friend from Tennessee from the bottom 

of my heart for having this important hearing. Modern-day slavery 

happens all over America, as Mrs. Wagner said in the first panel. 

It happens in my hometown of Sugar Land, Texas. Slavery for sex 

and labor. It is ugly, offensive, but it is real. 

It is so offensive and so ugly that some law enforcement people 

back home say it doesn’t exist. But it does. In April 2016, back 

home, a high school senior, very attractive, disappeared at night 

working at a local gym 500 yards from my official office in the 

heart of Sugar Land. She had just turned 18, so she was a legal 

adult. Her father knew that, unless he found her in 30 days, she 

would likely be gone forever. 

Luckily, he had resources to hire former Special Forces, SEALs, 

Green Berets, reinforced recon, and put a full-on onslaught on social media. He got her back. That situation had been planned for 

2 years. She befriended the so-called groomer when she was 16. He 

used Snapchat to communicate with her to give her drugs, get her 

hooked, and keep that from her parents. That family was lucky; 

they got their daughter back. And so was my family. 

Last June, my daughter went to South Africa on an overseas 

study program with her college. She went to Durban, South Africa. 

No one told us that was a hot bed for human trafficking. The students had to walk about half a mile from the dormitory to the 

classroom. In the middle of a bright sunny day, 2 p.m., four-lane 

road, center divider, a car pulled up in front of my daughter and 

her new friend. Three large men jumped out. One had a pistol in 

his left hand. My daughter saw the pistol. That man grabbed her 

shoulder, tried to take her in that car. Luckily, she had her backpack hanging with one strap on her right shoulder, the one he 

grabbed. The backpack came off. That gave her new friend the time 

to grab her right arm and pull her away. 

They ran as fast as they ever could. My daughter said: I was 

waiting to hear gunshots and being shot and dying in South Africa. 

Luckily, God was with her. They got to safety, and she came 

home. But she came home different. Those thugs took my daughter’s innocence and trust. And it is a pain that will never ever go 

away from my family. 

As I mentioned, especially with the girl from the gym, sex traffickers use emerging technologies to help them obtain an advanVerDate Mar 15 2010 12:02 Mar 08, 2018 Jkt 037690 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X84SEXTRAFFICKINGASKOK030518\115X84SEXTRAFFICKINGP
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tage and to stay hidden from law enforcement and families. As I 

mentioned, Snapchat, an example, a 6-second video pops up, pops 

away. Bitcoin for online transactions. 

My question for the entire panel—I will start with you, Ms. 

Smith—if I can make you the king, the queen, for one day to end 

human trafficking, what would you do? 

Ms. SMITH. I only have 5 minutes. 

Mr. OLSON. I can take whatever the chairman gives me. 

Ms. SMITH. First, let me say, my heart goes out to you. I sit 

across from parents with some regularity who didn’t have an almost, whose children were trafficked, and it is one of the hardest 

things in my job to do. So I am glad your story was an almost. 

From my perspective, I see the devastation in lives of young 

girls, primarily girls. I see, even after they come out of trafficking, 

the fear they have that their images are still up online, and who 

might find them and who might see them, and parents have those 

fears, too, when there are parents involved. And even looking 

ahead, as we are trying to help them heal, they are worried about 

whether their employer is going to see those someday or their children or their potential spouse. So they are just tentacles that go 

out in this technology. 

So I think you have alluded to some of those things. The anonymity, the ease of the marketplace, has to be shut down. We 

can’t—you know, I heard somebody tell me this story: If you take 

it out of the internet and you say, ‘‘In that hotel over there, we are 

going to have children being raped and sold so that we can go and, 

you know, find them, use them as live bait,’’ so to speak, we would 

be appalled. But we are OK with doing that if it is on the internet; 

somehow that is different. 

So we have got to have mandatory privacy controls. As long as 

we don’t have those privacy controls, predators are going to exploit 

our children. Children are going to lie about their ages to get accounts. So we have got to have that. We have got to get rid of the 

anonymity. I am a big believer in free speech but not in letting people rape our children. That is a simplistic answer, but—— 

Mr. OLSON. And I am out of time. 

I yield back. But one final comment. Those guys are so bad with 

Snapchat. They would send this young girl, ‘‘OK, the drugs are on 

the car tire in the school parking lot on the fifth car that is a red 

Impala on the back rear tire.’’ That would pop up for 6 seconds and 

then pop away; you can’t track it. They are devils. Absolute evil 

devils. And thank God put you to stop this thing. It has to stop— 

has to, has to, has to stop. My daughter was lucky. She came home. 

But, as you mentioned, most daughters aren’t that lucky. They 

don’t come home. And that is terrible, terrible, terrible. Thank you 

for coming today. 

I yield back. 

Mrs. BLACKBURN. The gentleman yields back. 

Ms. Eshoo, 5 minutes. 

Ms. ESHOO. Thank you, Madam Chairwoman. 

Thank you to all the witnesses that are here today. A special 

welcome to Professor Goldman from home, from Santa Clara University, that we are all very proud of. Professor Goldman, when I 

read the reports about Backpage.com, I was really just absolutely 

64 

disgusted by their business model. I think we need to be enforcing 

the law, obviously, to the fullest extent, when it comes to websites 

that are promoting sex trafficking. 

But with that in mind, I want to clarify something about section 

230. And I read your testimony, and much of it is centered in and 

around section 230. Under that section, does anything stop the Department of Justice from bringing a criminal case against sites like 

Backpage.com, and are there other ways besides civil cases that 

victims can seek redress? That is my first question. 

Mr. GOLDMAN. The first question—the first part is, no, nothing 

would restrict the Department of Justice from bringing an enforcement action against anyone, Backpage or any of the other sites 

that have been referenced. 

Ms. ESHOO. Have they? 

Mr. GOLDMAN. We have the grand jury investigation that has 

been taking place in Phoenix, and we don’t know what the result 

of that is because of the nature of the grand jury investigation. It 

seems safe to say that Backpage surely is on their radar screen, 

but how that translates into a prosecution decision is beyond my 

expertise. 

Ms. ESHOO. You don’t know that yet. Uh-huh. Can you make any 

suggestions to us about how websites and tech companies can take 

it upon themselves to be proactive and find other ways to be 

proactive about fighting sex trafficking? Isn’t that what 230 civil 

immunity is designed to incent? 

Mr. GOLDMAN. Yes, it does. And I liked how Ms. Smith referenced it. It does take a partnership of all the players to combat 

sex trafficking. We need everybody on the fight, including the technology companies. And to get their willingness to undertake initiatives requires that they aren’t held accountable for making mistakes or for not being instantaneous in their response or for the 

other kinds of things that are natural in an environment where 

users are posting lots and lots of content. 

So section 230 is an integral part of the solution by making sure 

that we have provided the kind of legal framework that motivates 

the companies to do the work that we want them to do. 

Ms. ESHOO. Thank you. 

The bill that our colleague came to testify on is obviously intended to reduce the placement of antisocial content, like sex trafficking ads, online. But could, in your view, it be counterproductive, 

in other words, increase the appearance of such content? I mean, 

can you explain in the little more detail how that would work? 

Mr. GOLDMAN. Yes. And I appreciate the opportunity to clarify 

that because it is counterintuitive. You would think that if we 

banned content and made more people liable for them, we will get 

less of the objectionable content. But that assumes that the existing services continue to do the work that they are already doing. 

But if we change the liability structure on them, they might decide 

that the best choice for them is to do less of the kind of policing 

and moderation work that we already are counting upon. 

So, while we might be able to take care of some players by driving them out of existence, we might also create other players who 

choose to do little or none of the work that we expect them to do. 

And if that is the result, if those players turn off their policing efVerDate Mar 15 2010 12:02 Mar 08, 2018 Jkt 037690 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X84SEXTRAFFICKINGASKOK030518\115X84SEXTRAFFICKINGP
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forts, then they create more environments where the antisocial content can occur. 

Ms. ESHOO. That is very interesting. Do you know of any examples where online services have used the flexibility granted by 230 

to help combat online sex trafficking or similar crimes and, if so, 

how effective these efforts have been? 

Mr. GOLDMAN. I don’t have the details on that. In fact, some of 

my copanelists here might actually have more information on that. 

Ms. ESHOO. Mr. Souras, do you know? 

Ms. SOURAS. Yes, absolutely. You know, from NCMEC’s perspective, we can certainly attest to the tremendous value that our technology partners provide, especially in the child sexual exploitation 

or child pornography realm. The developments of tools, hashing, 

the ability to utilize very advanced analytical comparisons and connections between images and data and video has definitely not only 

increased our report load tremendously at NCMEC, but it means 

that more and more content relating to child sexual exploitation 

has been reported to us. That work in the bulk of it came after the 

mandatory statute was put into place requiring technology companies to report apparent child pornography to NCMEC. 

Ms. ESHOO. Thank you. 

My time has expired, and I yield back. 

Thank you to the witnesses very much. 

Mrs. BLACKBURN. We thank the gentlelady. 

Mr. Bilirakis, 5 minutes. 

Mr. BILIRAKIS. Thank you, Madam Chair. 

I appreciate it very much. Thank you for holding the hearing, 

and I appreciate the testimony of the panel. And, of course, Mrs. 

Wagner is doing an outstanding job on this issue. I am glad to see 

this is her priority. 

I have a couple questions, but in response to increased sex trafficking around the world and in the Tampa Bay area—I represent 

the Tampa Bay area or parts of it in Florida—our local leaders established the Pasco County Commission on Human Trafficking in 

2014. Over the last 3 years, the commission has helped to educate 

over 500,000 Floridians, trained over 3,000 community members, 

and saved many victims from their captors. 

Recently, the commission held its first meeting to specifically address online sex trafficking. Partnering with local universities and 

the Pasco County Sheriff’s Office, they are gathering data on local 

online trafficking networks in the Tampa Bay area, and it is a big 

problem in our area. 

So my question is—my first question is to Ms. Smith. Based on 

your experience, what recommendations do you have for communities around the country that are beginning to target the online 

aspects of sex trafficking? And are there experienced organizations 

they should reach out to as they move forward? 

Ms. SMITH. Well, I applaud you for the efforts in your home 

State. I think that a lot of people are well-intentioned and go in 

and just have knee-jerk reactions. So it is important that there be 

a professional approach to this, as with any other, so that there is 

a needs assessment that you have the professionals in place who 

are best qualified to address each of the components of your—of the 

problem you are tackling, whether that is internet or not. 

66 

You need the kind of collaboration that we talked about in our 

State, where legislators are getting educated, law enforcement is 

getting educated, the courts; where there is a unified system where 

people are talking to each other and not at crossroads; where you 

are defining what your issues are, and not comparing apples and 

oranges. There is some foundational work that I think you have to 

do around the issue of trafficking before you can even move to the 

online aspects. 

I think it is important that you have survivor voices who are 

talking about the ways that they were trafficked and the effects on 

their lives and their concerns, the legal issues that they are facing. 

But I think some of my colleagues here might be even better in a 

position to—— 

Mr. BILIRAKIS. OK. Sure. 

Ms. Souras, would you like to begin? 

Ms. SOURAS. Yes, thank you. 

I certainly agree with everything Ms. Smith related. I think—you 

know, one of the things that is important, and NCMEC always 

says this, is that sex trafficking is a multifaceted problem; it requires a multifaceted solution. So certainly the community awareness and the use and the listening to survivors and what they have 

gone through and the use of peer-counseling. And, again, learning 

from and using the experiences of those who have gone through 

this so that we can learn how to better educate on prevention and 

awareness and signs of trafficking to everyone that comes into contact with children, in addition to the judicial system and the 

healthcare system as well. 

Mr. BILIRAKIS. We have got to beat this together. It has got to 

be a collaborative effort, there is no question. I wish everyone could 

respond, but I want to move on to my next question because I don’t 

have very much time. 

While technology has been a facilitator to traffickers, it also has 

put innovation into to the hands of law enforcement. Mr. Winkler, 

you mentioned your use of the Spotlight software to help identify 

traffickers in a crowd of online posts. Can you expand on how this 

technology works and its success for the Bureau, as it might benefit our commission on human trafficking as they begin online monitoring for this illegal behavior? 

Mr. WINKLER. Yes, sir. My understanding of Spotlight is it is an 

algorithm or overlay that looks for ads that are posted online, 

where there is a strong likelihood that those ads have been posted 

by minors or somebody has posted minors for—or posted ads for 

minors. It is a tremendous tool for us in law enforcement. Our intelligence analysts and our agents who are assigned to conduct 

human trafficking investigations use that tool almost on a daily 

basis in an effort to identify human trafficking victims. 

So any type of technology like Spotlight that would help us in the 

furtherance of our investigations and in the furtherance of our efforts to combat human sex trafficking would certainly be welcome. 

Mr. BILIRAKIS. Thank you. 

Thank you, Madam Chair. 

I want to thank the witnesses for their, obviously, participating 

today and protecting our Nation’s vulnerable population. We really 

appreciate it. And I encourage Tampa Bay residents to visit 

67 

KNOW—and, again, spelled K-N-O-W—MORE PASCO, know more 

information, KNOW MORE PASCO, on Facebook or Twitter to 

learn more about what the community is doing to combat these 

predators. 

Thank you very much. And I thank my community for taking action. I yield back. 

Mrs. BLACKBURN. The gentleman yields back. 

Mr. Rush, you are recognized for 5 minutes. 

Mr. RUSH. I certainly want to thank you, Madam Chairman, for 

your courage in terms of having this hearing, and I want to commend you for your work and leadership in this particular matter. 

Child exploitation is pandemic through this Nation and is indeed 

a seedy dark side of our culture. 

And I want to see from a different perspective how—what role 

does child marriage play in this crime? It seems as though there 

is another aspect of this crime that really has not been discussed 

at all, and that is for child marriages to occur. 

Do you find or can you speak to this issue at all? Anybody? I 

mentioned something—I have some legislation that I am addressing to deal with the language of standards for our Nation to have 

as it relates to child marriages. There are so many different standards State by State. So we are trying to create a common standard 

through legislation. Do you have any—can you respond at all? Anybody? All right. Well, let me—— 

Ms. SMITH. I am sorry. I am getting older and hard of hearing, 

so I may have missed some parts of that. You were asking about 

child marriage and—— 

Mr. RUSH. I am asking about child marriages. 

Ms. SMITH [continuing]. And trafficking. I would say that we 

have had limited experience with that. It is typically a foreign national victim. We do have a current survivor we are serving who 

was sold at the age of 14 to be married, and her husband brought 

her here and trafficked her. It was just an out and out trafficking 

situation. She managed to escape, and we are providing her services. 

But in the years in which I have worked here—I did work internationally and came across that issue quite a bit—but domestically, 

it is a relatively small percentage. 

Mr. RUSH. Well, I have heard and some of our researchers have 

said in some parts of our Nation, it is very common that young 

girls particularly are forced into marriages in order to satisfy the 

laws that prohibit interstate transfer of minors for sexual exploitation. So child marriage is an issue in certain parts of our Nation. 

Let me ask you another question. Is there—have you noticed, is 

there a racial component to sexual exploitation of youngsters? Is 

there a racial component? 

Ms. SMITH. I don’t have those figures at my—those at my fingertip. I would be happy to get the information and send it to you 

later. I do know that there is a higher percentage of African-American victims. We certainly see lots of Latina, but I am sorry; I don’t 

have the percentages, and I don’t believe any of us probably do. 

Mr. RUSH. All right. We, in recent days, have been highly focused 

on sexual harassment in the workplace and also in professional settings. And it seems as though there is a predominance in the news 

68 

today and in recent days about sexual exploitation and harassment 

in the workplace and in professional settings. 

How is this affecting our national focus on children who, in most 

instances, are far less powerful and are more vulnerable because 

they are more voiceless? Are you seeing—are you seeing any kind 

of lessening of the attention on child sexual harassment because of 

the predominance in the news on harassment in the workplace and 

in professional settings? 

Ms. SOURAS. Congressman, what we handle in NCMEC is obviously a much more severe type of child sexual exploitation. But, 

you know, I will say I think the public attention, the media counts, 

as you noted, around this issue, do create an environment for additional discussion that we can have with our children, with vulnerable populations. 

Again, just regarding communication, being open to reporting. 

We are seeing some of these same trends with adults in professional settings. I think perhaps it is too early to know how that 

might filter down into some of the vulnerable populations that we 

work with here. 

Mr. RUSH. I yield back. 

Mrs. BLACKBURN. The gentleman yields back. 

Mr. Long, 5 minutes. 

Mr. LONG. Thank you, Madam Chairman. 

This is a tough hearing to sit through. And what is the rate, or 

do you have any statistics on the rate of recidivism? I mean, you 

are talking about mostly girls, let’s say, that are in this—I know 

there are some LGBTQ, whatever—but mostly girls that are trafficked. And you say that they mostly come from State homes, correct? From the State system? 

Ms. SMITH. [Nonverbal response.] 

Mr. LONG. So Mr. Winkler goes up there and busts them with 

his program. Where do they go from there? I mean, they don’t go 

to a house with a white picket fence and a dog in the yard and 

have apple pie that night. What—is there a recidivism? Do we 

know anything about that? 

Ms. SMITH. I can just speak experientially from our State, and 

it depends on—if you are counting recidivism as returning to that 

life of exploitation? 

Mr. LONG. Right. That is what I am asking. How do you break 

that cycle for that age group, for those people? I mean, not the next 

age group coming, or whatever, but how do you take them—you 

know, rescue them from that, which we all want to do? Then what 

happens? 

Ms. SMITH. I think that we found a terrific model in our State. 

Currently, we have an 89-percent success rate for the people that 

we serve not going back into exploitation. I am not going to say it 

is not incredibly difficult. I believe I read that the national average 

is that a girl typically running runs back to exploitation seven 

times. Thankfully our rates are much lower than that. 

Mr. LONG. Seven times? 

Ms. SMITH. Seven times. You know, there is some—there is complex trauma going on here. 

Mr. LONG. I know. I mean, that is part of the—— 

69 

Ms. SMITH. But, thankfully, I think some of the reasons we have 

had success are we have survivors on staff who build that trust 

and who mentor, who show visibly: This does not have to define 

your life. I am a professional woman. I am married. I have children. I have a college degree. This does not have to define your life. 

That is a first step. 

I think the fact that we keep very small caseloads, because these 

girls typically are looking for relationships. They were exploited because they want love and acceptance, things all of us want, but 

they have that deep need. So you can provide services all day long, 

but if you don’t build that community of other survivors that they 

live with and the support groups and the relationship with staff 

and starting to build their outside support system, they are going 

to go back to have that need met in the only way they have ever 

known. 

And I think those are keys to our success. I think it takes time. 

We can’t rush this. We tend to do that. And especially child services: 2 months, 3 months, and that is all there is funding for. 

Mr. LONG. Let me give each of you about 45 seconds to answer, 

start with Ms. Souras: What are the top three things we as Congress, two or three things, that we need to do to help you? 

Ms. SOURAS. I think the number one thing is really, quite honestly, the topic of this hearing. There need to be legal tools that can 

effectively break the commercial market, the commercial market 

that these girls run back to, as Ms. Smith indicated, that they are 

lured back into to be trafficked, and the same market that, again, 

is feeding between 9,000 and 10,000 reports of child sex trafficking 

to NCMEC a year, and there is no decrease in those reports. Something at a high level needs to happen so that these websites can 

be taken down. 

Mr. LONG. OK. Go ahead. 

Ms. SMITH. I will just add with a little vignette: I have a 15-yearold this week who just got her privileges back online, because we 

have a tiered system for that. And the same day she got those 

privileges, a 40-year-old man was reaching out to her. And she 

said, ‘‘I am a minor,’’ and he said, ‘‘That is fine.’’ We see that over 

and over again. So I just concur. 

Mr. LONG. This Backpage.com or whatever it is, is this—I mean, 

I have heard of it a million times, but I have never looked at it. 

Is it—you buy bicycles and couches and refrigerators there, and 

then there is also a trafficking section, or how does it work? It is 

not all trafficking, right? 

Ms. SMITH. No, it is not all trafficking, but it is hidden under euphemisms: Buy a girl for 40 roses. Everybody knows that means 

$40. It is very blatant. The pictures are very sexualized. There is 

not really much attempt to hide what is going on. 

Mr. LONG. OK. Mr. Winkler. 

Mr. WINKLER. Anything that encourages innovation in technology 

that would assist us in conducting the investigations that we conduct, that would assist us in furthering those investigations and 

helping us to identify trafficking victims, anything, whether that is 

targeted funding or just whatever, anything that you could do 

along those lines would be—— 

70 

Mr. LONG. Mr. Goldman, I am over time, I am going to give 

you—I am going to yield myself 45 seconds that I don’t have because I want to hear from you. 

Mr. FLORES. I object. 

Mr. GOLDMAN. I appreciate that. I do defer to the experts on this. 

I think if we could clone my three copanelists here, that would be 

a big step forward. 

Mr. LONG. Thank you. I yield back. 

Mrs. BLACKBURN. The gentleman yields back and didn’t use that 

45 seconds he gave himself. 

Mr. Flores, you are recognized for 5 minutes. 

Mr. FLORES. I hope that means I get 51⁄2 minutes. 

Thank you, Madam Chair. 

And I want to thank the panel for being here today. 

And I have to echo Mr. Long’s comments: This really is a sad 

hearing to go through this. But I do appreciate your being here to 

talk about this ugly blight on American society. 

Mr. Winkler, I want to follow up on one of the questions that Mr. 

Bilirakis introduced. He talked about your use of the tool Spotlight. 

And from what I understand now, as the trafficking business, if 

you will, is moving from text and photos to live streaming and 

video, it is my understanding that technology, the Spotlight types 

of technology, have not kept up. What sort of a challenge does that 

present to you? 

Mr. WINKLER. I don’t know specifically of challenges that we are 

faced with yet. I do know that there is a shift from the text format 

to video and streaming, and that it certainly is something that is 

on the horizon, if it is not already here. 

Like I said before, anything that you can do that would assist in 

fostering innovation in that area would be most helpful. 

Mr. FLORES. I have to agree with you, I think that is one of the 

things that we as policymakers need to do, but not through legislation necessarily, but through encouragement, is to help get the best 

and brightest in Silicon Valley and throughout the technology ecosystem to help develop tools to help you stop this terrible crime 

that is being inflicted on our young people. 

Ms. Smith, I appreciate what you do. There is a group that started in Waco, Texas, called UnBound, and they do great work, and 

they deal with the victim side. And one of the neat things I have 

seen in our community is that they have brought law enforcement 

into the tent and have educated them about what is, I mean, 

what—these folks are victimized and what is happening to them. 

And they have formed a collaboration where Sheriff Parnell McNamara, the sheriff of McLennan County, has set up a sting system 

like the ones that you all talked about—like Mr. Winkler talked 

about. And, unfortunately, business is booming, but it is making a 

dent. From what I understand, the traffickers are no longer stopping in Waco, Texas, but that doesn’t mean that they have gone 

away. They are just in other areas. 

So I want to continue with you, Ms. Smith. We have heard a lot 

today about the terrible consequences of how easily victims can be 

lured into sex trafficking, but we haven’t talked a whole lot about 

what can be done to stop exploitation in the first place. So can you 

71 

talk about your organization’s prevention efforts and how technology can be used to stop exploitation before it starts? 

Ms. SMITH. Great question. Thank you. We are doing a lot 

around prevention. We have reoccurring small groups facilitated by 

a therapist and a survivor with the high-risk kids, you know, interactive groups with middle-age—middle school and high school students. But I think when we are talking about prevention, what we 

have to be talking about is demand reduction. And so because TBI 

does what they do, in our State, if somebody picks up the phone 

to call for sex, they know on the other end of the phone might be 

law enforcement, whether they are in the city, the county, suburbs, 

small towns, wherever they are. They know that are laws are 

strong, and they know that their picture might go out on a press 

release, and their wife and their boss and the people they go to 

church with might see that. Those are strong deterrents. 

I know some sites—law enforcement sites actually put out the 

pictures so everybody can see. You know, that is the kind of thing 

we need to have happening if we are going to actually prevent this. 

And then we have just got to limit the marketplace, just as we 

have been talking about. As long as there is anonymity, as long as 

these exploiters can get by with what they are doing, prosecutors 

don’t have the tools to go after them; law enforcement will lose motivation if there is not a legal process that works. That is what we 

really to have do, I believe. 

Mr. FLORES. We have got about 30 seconds, but what can be done 

from a technology perspective, do you think, to help stop the exploitation? Do you have a feel for that? That was for you, Ms. Smith. 

I am sorry. 

Ms. SMITH. I am sorry. Would you repeat—— 

Mr. FLORES. So what can be done from a technology standpoint 

to stop the exploitation? 

Ms. SMITH. Well, you know, some of the things we have been 

talking about are the privacy controls, the anonymity that is allowed online. I think we haven’t talked about the fact that there 

are new sites popping up constantly. It is hard to even keep track 

of them. I believe we need to have the resources to keep on top of 

that and what is being done. But also law enforcement needs the 

resources to be able to get what they need for making good cases 

and getting perpetrators. 

Mr. FLORES. Again, thank you all for your testimony today. 

And I yield back the balance of my time. 

Mrs. BLACKBURN. Mrs. Walters, 5 minutes. 

Mrs. WALTERS. Thank you, Madam Chair. 

And thank you to our witnesses for being here today. It is deeply 

upsetting that these issues exist in today’s society, but I am grateful for the opportunity to discuss how we can put an end to this 

modern day slavery. I have worked on human trafficking issues 

since I served in the California State legislature since 2004. And 

while we have taken steps to curb this horrific practice over the 

last 13 years, much, much more must be done. 

Trafficking is a big problem throughout California, as I am sure 

you are very aware. And a recent report by Polaris found that, in 

2016, California had over 1,300 incidents of human trafficking, 

nearly double of any other State. 

72 

This heat map that I have shows the cases in California that 

were reported to the National Human Trafficking Hotline. But this 

map is just part of the picture, because it only reflects cases in 

which the location of the potential trafficking was actually known. 

This year, in southern California, investigators have uncovered 

several large-scale international human trafficking rings that were 

using the internet to sell sexual services. And thousands of ads 

were tracked through the website that we are all familiar with, 

Backpage.com, including ads selling minors for commercial sex. 

Sadly, one of those rings was located in Irvine, which is right in 

the heart of my district. 

The problem is so bad in Orange County that a group of law enforcement departments, Government agencies, nonprofits, and community organizations banded together to establish a task force to 

conduct antitrafficking efforts. In 2015, the Orange County Human 

Trafficking Task Force assisted 225 victims. Of the 225 victims, 61 

percent were new victims, 168 of those victims were used for sex 

trafficking, 48 of those victims were minors, 47 of whom were used 

for sex trafficking. And the stats go on and on. 

I am proud of the work that the task force has done and will continue to do so. With that, I would like to get to some questions. 

Ms. Smith, you mentioned in your testimony that when the Tennessee Bureau of Investigations began investigating human traffickers, they called on your group for assistance. Do you think 

State law enforcement agencies have the expertise and resources to 

combat this problem on their own? 

Ms. SMITH. No, I believe it takes the expertise of a number of 

players working together. So law enforcement does things I 

wouldn’t dream of doing, investigating, researching, prosecuting, 

but I think we have to work together to have an approach that 

doesn’t frighten the victims away, that meets them where they are, 

that brings survivors to the operations, for example, to build that 

trust. We have to have the services in place to keep a victim in 

place long enough to prosecute. 

When I first started this work, I had a detective who said he was 

so frustrated with picking up the same 14-year-old girl all the time, 

and then he didn’t know what to do with it. He lost his motivation. 

But now he is one of our most robust supporters because the system is working because all the pieces are in place. And so, you 

know, law enforcement is going out, and they are finding people. 

The community is getting educated so that they are being recognized by first responders. The services are in place that they need 

to heal. When that happens, it is a game changer. 

Mrs. WALTERS. So what you are saying is that different partnerships are being formed in order to have that communication in 

order to make it work? 

Ms. SMITH. Absolutely. 

Mrs. WALTERS. And then, Professor Goldman, I have a couple 

questions for you. First, what evidence would a civil attorney need 

and expect to rely upon to establish that a website knew the individual advertised on the site was a minor? 

Mr. GOLDMAN. I don’t have an answer to that question in part 

because we haven’t seen that issue thoroughly tested. Because secVerDate Mar 15 2010 12:02 Mar 08, 2018 Jkt 037690 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X84SEXTRAFFICKINGASKOK030518\115X84SEXTRAFFICKINGP
73 

tion 230 doesn’t turn on a website’s knowledge, we are unclear how 

a different legal regime might interpret that information. 

Mrs. WALTERS. OK. We will see if you can answer my next question. I don’t know if you will because, along the same lines, what 

evidence would a civil attorney need and expect to rely upon to establish that a website knew the individual advertised on the site 

was an adult sex trafficking victim? 

Mr. GOLDMAN. Yes, I would answer it the same. 

Mrs. WALTERS. OK. Thank you. 

And I yield back the balance of my time. 

Mrs. BLACKBURN. Mr. Costello, you are recognized 5 minutes. 

Mr. COSTELLO. Thank you. 

First, I want to thank the National Center for Missing and Exploited Children, who partnered with the FBI recently conducting 

their 11th Annual Operation Cross Country law enforcement action 

focused on recovering underage victims of sex trafficking. This 

cross-country sting was an operation, including 55 FBI field offices, 

74 FBI-led child exploitation task forces, and 400 law enforcement 

agencies throughout the country, leading to the recovery of 84 sexually exploited minors and the arrests of 239 traffickers and other 

individuals, including 9 in my congressional district. 

Now, I understand why the CDA provided immunity to ISPs in 

the first instance. I think there is an intellectual appreciation for 

why that was the case. But I, like some others on this committee, 

I am sure—and I have met with a mother whose daughter was advertised. And when you hear what these ads are and what is said, 

it really hits you in a way that compels you to say that is simply 

not acceptable, and we need to create a standard by which an ISP 

and others can be liable, or they have more of a responsibility than 

has thus far been required of them. 

And so the question that I have is, can you talk about the successful efforts that were taken online during the operation and 

how, if at all, we can revise section 230 of the CDA to improve 

these efforts? I would point specifically to the reckless disregard 

standard that the information is in furtherance of a sex trafficking 

offense. I think that that is very helpful language in Mrs. Wagner’s 

bill, as well as—and normally, we are a little hesitant to give State 

investigative authorities or State law enforcement jurisdiction over 

really internet-type related crimes because sometimes different 

States do different things at different times. But here, I think, by 

freeing it up and giving States more tools to do that, it is a good 

thing. 

So, Ms. Souras, and anyone else on the panel, can you speak to 

that collaboration between local and Federal law enforcement and 

how the proposal may best aid them in rooting this out even more 

effectively than we have been able to do? 

Ms. SOURAS. Thank you very much for the question, Congressman. And thank you for the recognition regarding the Operation 

Cross Country. It is an amazing operation that has been undertaken, as you noted, with a large variety of partners, local, State, 

and Federal. NCMEC provides some recovery services, as do local 

groups, in addition to some analytical support, and we are extremely proud to partner with law enforcement on that operation. 

74 

I think what you see in that operation and the numbers that you 

quoted, especially the numbers from your State of Pennsylvania, 

are really indicative of the scope of the problem. There could be an 

Operation Cross Country every week, every month, and the numbers would be the same. You know, I will defer to Mr. Winkler, certainly, to how there can be better resources put in place for law enforcement. But the way to really provide assistance and to cut 

those numbers are—and I will just repeat a little bit of what I said 

before—are to take this on from the highest level, to realize that 

there is a commercial marketplace where these children are commodities. And that is why there are so many children who are recovered and rescued during Operation Cross Country. It is why 

they are lured back in—you know, I think what Ms. Smith said, 

some children seven, eight times. That is also similar to what we 

see at NCMEC, because somebody can make money off of them. 

And until we are able to introduce some laws—again, the FOSTA 

bill, you know, currently pending in the House; the SESTA bill that 

will soon be coming over to the House from the Senate, currently 

with 52 cosponsors in the Senate—most of those bills are, you 

know, approaching the issue from the same framework: adding 

more legal resources, State attorneys general, and civil remedies. 

That is really what you are going to start to see. You know, with 

new legal initiatives of that sort, that is going to be the solution 

to cut down on the number of children who are being lured because 

if it is too hard to break into the next Backpage, whatever that 

website might be—and Representative Wagner said there are hundreds. It is our experience as well, hundreds of—— 

Mr. COSTELLO. Real quick. How important is it for State and 

local prosecutors to be able to hold bad-actor websites accountable? 

How much more in the way of resources does that enable? 

Ms. SOURAS. It is a tremendous benefit. I mean, State attorneys 

general in every State, you know, I imagine will look at this issue. 

Many of them have spoken to NCMEC, and they simply can’t proceed legally right now. 

Mr. COSTELLO. Right. Thank you very much. 

I yield back. 

Mrs. BLACKBURN. The gentleman yields back. 

And seeing that there are no further members wishing to ask 

questions, we thank you all so much for the testimony that you 

have given today. 

As we conclude, I have two more submissions for the record. The 

opening statement of our ranking member, Frank Pallone. And an 

op-ed that I wrote this week that was printed in The Tennessean. 

Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mrs. BLACKBURN. Pursuant to committee rules, I remind Members that they have 10 business days to submit additional questions for the record, and I ask, if they do and submit them to you, 

that you answer those questions within 10 business days. 

And seeing no further business to come before the committee and 

the fact that we are now being called to the floor for votes, I adjourn the subcommittee. 

So ordered. Thank you. 

[Whereupon, at 4:12 p.m., the subcommittee was adjourned.] 

75 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. FRANK PALLONE, JR. 

While most of us spent this past holiday weekend with family and friends, victims 

of human trafficking and their families were forced to live a waking nightmare. 

Every day traffickers are forcing their victims-many of whom are children-to commit 

unspeakable acts. And while this practice seems like something from the ancient 

past, the situation is actually getting worse. 

According to the National Human Trafficking Hotline, human trafficking cases increased by more than a third between 2015 and 2016. More than 2,300 of these 

cases last year involved trafficking children. 

Even though this is a global issue, those statistics are not from far-flung corners 

of the world. Criminal sex trafficking is getting worse here in the U.S. In New Jersey alone, we had 83 cases reported so far this year. And the actual number of cases 

is probably much higher than what gets reported as traffickers move their activity 

to hidden corners of the web. 

The internet undeniably has made the problem of sex trafficking worse. The same 

efficiency that can make the internet a powerful force for good in many ways can 

turn brutal when it is used in the sex trade. Some victims report traffickers forcing 

them to commit unspeakable acts 20 times a day. This simply should not be happening in this day and age. I salute my colleagues in both the House and Senate 

for proposing changes to existing laws to do more. Because more must be done. 

A number of bills have been introduced in both chambers to combat online sex 

trafficking. Most proposals would modify Section 230 of the Communications Actalso called the Communications Decency Act. That’s the section of the law that exempts websites from civil liability for third-party content posted on their site. Unfortunately, certain rogue websites use that section of the law to escape paying for the 

damage caused by their contributions to human trafficking. 

I look forward to hearing today about which approaches work best to combat this 

terrible problem. And I welcome input on whether there are any ways to improve 

these proposals. 

I know that some people worry that these bills may have unintended consequences. They correctly point out that the Communications Decency Act has allowed the internet to thrive. It has allowed web companies to aggressively police 

their sites for harmful content without fear of legal repercussions. 

That’s why the critics of altering the law worry that if we are not careful, we 

could undermine small businesses and unnecessarily harm startups that have nothing to do with human trafficking. Worse, they allege that if Congress does not act 

in the right way, we could unintentionally undermine the internet as we know it. 

I understand these concerns, and I take them seriously. But we cannot ignore the 

fact that people around the world are being harmed everyday by this trafficking. 

The consequences are too severe. 

That’s why I welcome the help from the tech companies that have engaged productively in solving this issue and helping the victims. We all can and should do 

more. It’s simply not acceptable to try to stop work on all legislation in the name 

of avoiding liability. We owe it to the victims. But more than that, we owe it to the 

people-adults and children-who will be victimized in the future if we do not act now. 

Thank you, I yield back. 

PREPARED STATEMENT OF HON. DAVID B. MCKINLEY

While the internet and e-commerce have revolutionized our lives in many ways, 

the staggering growth in this sector has allowed illicit activities to proliferate. Despite the majority of good actors online that are beneficial to the way we shop, communicate, and obtain information, we must pay more attention to companies and 

individuals involved in trafficking and smuggling of illegal goods and services. The 

rise of human trafficking and the online sex trade is a particularly abominable practice operating in the shadows—it is time for Congress and the Department of Justice to shine light on these bad actors to protect the victims of this industry from 

exploitation and enslavement. I commend the efforts of those testifying before the 

committee today and encourage Congress to continue working on legislative solutions that improve our ability to fight human trafficking and the sex trade. By modernizing our laws and enforcement power to reflect changing technology, we can better position the United States as leaders in the fight against these crimes against 

human dignity. 

76 


115TII CONGRESS 

1ST SESSION H.R.l865 

To amend the Communications Act of 1934 to clari(y that section 230 

of such Act does not prohibit the enforcement against providers and 

users of interactive computer services of Pederal and State criminal 

and civil law relating to sexual exploitation of children or sex trafficking, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 3, 2017 

:\Irs. WAGNER (for herself, Mrs. BmA1'TY, l\Ir. SMITH of New ,Jersey, Ms. 

CLARKE of New York, Mr. POE of Texas, ;\Irs. CAROLY:-.1 B. MALONEY 

of New York, Mr. HOYGE of California, Mrs. ROBY, l\lr. KlNZINGim, and 

Ms. JENIITNS of Kansas) introduced the following bi!l; which was referred 

to the Committee on the Judiciary, and in addition to the Committee on 

Energy and Commerce, for a period to be subsequently determined by the 

Speaker, in each ease for consideration of such provisions as fall within 

the .Jurisdiction of the committee coneerucd 

A BILL 

To amend the Communications Act of 1934 to clarifY that 

section 230 of such Act does not prohibit the enforcement against providers and users of interactive computer 

services of Pederal and State criminal and civil law relating to sexual exploitation of children or sex trafficking, 

and for other purposes. 

1 Be ,it enacted by the Senate and House of Represent(t2 Uves of the Un,ited States ofihnerica in Cong1·ess assemble{l, 
77 


2 

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the "Allow States and Vic3 tims to Fight Online Sex Trafficking Act of 2017". 

4 SEC. 2. FINDINGS. 

5 CongTess finds the following: 

6 (1) Section 230 of the Communications Act of 

7 1934 (47 U.S.C. 230; commonly lmown as the 

8 "Communications Decency Act of 1996") was never 

9 intended to provide legal protection to websites that 

1 0 facilitate traffickers in advertising the sale of unlaw11 ful sex acts vvith sex trafficking victims. 

12 (2) Clarification of such section is warranted to 

13 ensure that such section docs not provide such pro14 tection to such websites. 

15 SEC. 3. ENSURING ABILITY TO ENFORCE FEDERAL AND 

16 

17 

18 

STATE CRIMINAL AND CIVIL LAW RELATING 

TO SEXUAL EXPLOITATION OF CHILDREN OR 

SEX TRAFFICKING. 

19 (a) I:-.J GENERAL.-Section 230 of the Communica20 tions Act of 1934 (47 U.S.C. 230) is amcnded21 (1) in subsection (b)-

22 

23 

24 

25 

26 

(A) in paragTaph ( 4), by striking "; and" 

and inserting a semicolon; 

(B) in paragraph (5), by striking the period at the end and inserting"; and"; and 

(C) by adding at the end the following: 

•HR 1865 m 
78 


3 

1 " ( 6) to ensure vigorous enforcement against 

2 providers and users of interactive computer services 

3 of Federal and State criminal and civil law relating 

4 to sexual exploitation of children or sex trafficking, 

5 including through the availability of a civil remedy 

6 for victims of sex trafficking."; and 

7 (2) in subsection (e)-

8 (A) in paragraph (1 )-

9 (i) by inserting "section 1591 of such 

10 title (relating to sex trafficking)," after 

11 "title 18, united States Code,"; 

12 (ii) by striking "impair the enforce13 ment of section" and inserting the fol14 lowing: "impair the enforcement of, or 

15 limit the availability of victim restitution 

16 under17 "(A) section"; and 

18 (iii) by striking "statute." and insert19 ing the follmving: "statute; or 

20 "(B) any State criminal statute that pro21 hibits22 "(i) sexual exploitation of children; 

23 "(ii) sex trafficking of children; or 

24 "(iii) sex trafficking by force, threats 

25 of force, fraud, or coercion."; 

•HR 1865 m 
79 


4 

1 (B) in the second sentence of paragraph 

2 (3), by striking "No cause of action" and in3 serting "Except as provided in paragraphs 

4 (l)(B) and (5)(B), no cause of action"; and 

5 (C) by adding at the end the follm,'ing: 

6 "(5) No E:B'FECT ON CIVII, !JAW RE!JATING TO 

7 SEA.uAL EXPLOITATION OF CIIILDREN OR SEX TRAF8 I<'ICKING.-Nothing in this section shall be constmed 

9 to impair the enforcement or limit the application 

10 of11 "(A) section 1595 of title 18, United 

12 States Code; or 

13 "(B) any other Federal or State law that 

14 provides causes of action, restitution, or other 

15 civil remedies to victims of16 "(i) se:l\.'llal ez,_-ploitation of children; 

17 "(ii) sex trafficking of children; or 

18 "(iii) sex trafficking by force, threats 

19 of force, fraud, or coercion.". 

20 (b) EFFECTIVE DATE.-The amendments made by 

21 this section shall take effect on the date of the enactment 

22 of this Act, and the amendment made by subsection 

23 (a)(2)(C) (and, to the extent it relates to such amendment, 

24 the amendment made by subsection (a)(2)(B)) shall apply 

25 regardless of whether the conduct alleged occurred, or is 

•HR 1865 1H 
80 


5 

1 alleged to have occurred, before, on, or after such date 

2 of enactment. 

3 SEC. 4. ENSURING FEDERAL LIABILITY FOR PUBLISHING 

4 INFORMATION DESIGNED TO FACILITATE 

5 SEX TRAFFICKING. 

6 (a) IN GENEHAh-Section 1591 of title 18, United 

7 States Code, is amended8 (1) by redesignating subsection (e) as sub9 section (f); 

10 (2) in subsection (f), as redesignated by para11 graph (1 ), by adding at the end the folloV\ing: 

12 "(6) "'l'he terms 'information content provider' 

13 and 'interactive computer service' have the meanings 

14 given those terms in section 230 of the Communica15 tions Act of H)34 (47 U.S.C. 230). 

16 "(7) The term 'participation in a venture' in17 eludes kno\\ing or reckless conduct by any person or 

18 entity and by any means that furthers or in anyway 

19 aids or abets the violation of subsection (a)(1)."; 

20 and 

21 (3) by inserting after subsection (d) the fol22 lowing: 

23 "(e)(1) Whoever, being a provider of an interactive 

24 computer service, publishes information provided by an in25 formation content provider, with reckless disregard that 

•HR 1865 IH 
81 


6 

1 the information provided by the information content pro2 vider is in furtherance of an offense under subsection (a) 

3 or an attempt to commit such an offense, shall be fined 

4 in accordance >vith this title or imprisoned not more than 

5 20 years, or both. 

6 "(2) Nothing in paragraph (1) shall be construed to 

7 require the Federal Government in a prosecution, or a 

8 plaintiff in a civil action, to prove any intent on the part 

9 of the information content provider.". 

10 (b) CLERICAL AMENDMEJ\TS.-Such section is fur11 ther amended by striking "subsection (e)(2)" each place 

12 it appears and inserting "subsection (f)(2)". 

0 

•HR 1865 m 
82 


~UNIVERSITY OF 

WNOTREDAME 

The Law School 

November 27,2017 

The Honorable Marsha Blackburn 

Chairman 

Subcommittee on Communications and 

Technology 

U.S. House of Representatives 

2125 Rayburn House Office Building 

Washington, DC 20515 

Alexandra F. Levy 

3151 Eck Hall of Law 

Notre Dame, Indiana 46556 

tel (574) 631-1512 email alevy2@ND.EDU 

The Honorable Mike Doyle 

Ranking Member 

Subcommittee on Communications and 

Technology 

U.S. House of Representatives 

2322A Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Blackburn and Ranking Member Doyle: 

Thank you for holding a House Energy and Commerce Subcommittee on 

Communications and Technology hearing to address the critical issue of combating online sex 

trafficking. As an anti-trafficking attorney and adjunct professor at Notre Dame Law School, I 

have focused my research on the question of how regulating intermediaries (or interactive 

computer services) is likely to affect anti-trafficking and anti-exploitation efforts. I have worked 

closely with organizations in the Freedom Network, the largest domestic network of antitrafficking advocates and service providers, to develop and implement effective policies to 

combat this atrocious crime. My expertise and experience lead me to believe that the Allow 

States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA) will not reduce 

commercial sexual exploitation, and may, to the contrary, exacerbate the problem. 

There is No Evidence that Internet Intermediaries Cause Sex Trafficking 

Reports of sex trafficking have increased as the Internet has grown in size. While this 

correlation is often marshaled as evidence that the Internet has caused a rise in sex trafficking, it 

actually proves nothing of the sort. It may simply be the case that the Internet makes it easier to 

detect the crime. There is likewise no basis for the idea that the proliferation of intermediaries 

that host advertisements has prompted an increase in sex trafficking, and, conversely, no reason 

to believe that limiting them will reduce commercial sexual exploitation. FOSTA (and similar 

measures) may appear to target sex trafficking, but the reality is that they seek to suppress 

mechanisms through which sex trafficking is readily detected and reported. This is the exact 

opposite of what we need. 
83 


Intermediaries Should be Encouraged to Screen Material, Not Punished for It 

Both law enforcement and non-profit advocates rely heavily on intermediaries to flag 

suspicious posts and potential trafficking activity. Unfortunately, intermediaries' ability to filter 

content is not flawless, and some sex trafficking advertisements do slip through the cracks. But 

thanks to Section 230 of the Communications Decency Act, the perfect is not the enemy of the 

good, and platforms do not have to worry that they will be held liable simply for making an 

effort. FOST A would change this: by creating accountability for merely knowing about 

trafficking, FOST A would punish platforms for their attentiveness. 

Countless victims are recovered, and traffickers apprehended, because of platforms' 

efforts (however imperfect) to filter the content they host. It would be counterproductive to 

encourage platforms to tum a blind eye. Intermediaries have an important role to play in 

combatting sex trafficking -- but their power to stop these horrific acts is only as strong as their 

immunity from liability for their inevitable failures. 

The Safety of Sex Works Depends on Online Platforms 

A recent study suggests that the availability of certain online forums may be correlated 

with a lower murder rate among sex workcrs. 1 This echoes what sex workers and trafficking 

survivors have been saying for years: access to online platforms makes sex workers less 

dependent on pimps and violent third parties. Views can and do differ as to whether sex work 

should be legal, but there is hardly room for disagreement as to whether we should take measures 

to reduce violence - including fatal violence in vulnerable populations. 

I join the many anti-trafficking organizations, advocates, and survivors who have 

expressed reservations about efforts which, like FOSTA, confuse imposing liability on 

intermediaries with holding traffickers accountable.2 While I applaud Congress's effort to 

contend with this serious issue, I am confident that FOST A is not the solution. 

Alexandra F. Levy 

1 Cunningham et al, "Craigslist's Effect on Violence Against Women," available at 

http://scunning.com/craigslist70.pdf. 

2 The Freedom Network USA, for instance, issued an official statement urging caution when considering 

amendments to the CDA, and encouraging Congress to avoid "misguided legal reforms" 

(https:/lfreedomnetworkusa.orglbuddydrive/filelfnusaurgescautioncdareforml). The Sex Workers Outreach Project 

USA has also voiced strong opposition to similar measures (http://www.new.swopusa.org/2017108/lllcall-toactionpress-release-swop-usa-stands-in-direct-opposition-of-disguised-internet-censorship-bill-sesta-s-1963-callyour-state-representatives-and-tell-them-to-fight!). Many other coalitions, organizations, advocates, and experts 

have expressed the same views. 
84 


Response to Online Sex Trafficking and the Communications Decency Act: Hearing Before the 

Subcommittee on Crime, Terrorism, Homeland Security, and Investigations- October 3, 2017 

Shared Hope International, Exodus Cry, the National Center on Sexual Exploitation (NCOSE) and the 

Coalition Against Trafficking in Women (CATW) submit this statement in response to the October 3, 

2017 hearing' on H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA),2 to 

clarify the record with regard to testimony given by former Representative Chris Cox on behalf of 

NetChoice, and the Subcommittee's focus on technology industry perspectives that did not accurately 

represent the barriers in Section 230 to holding online entities that facilitate sex trafficking accountable 

for their role in this crime. 

Notably absent from the hearing were the voices of survivors of trafficking-those who have 

experienced the devastating effects of commercial sexual exploitation as a result of being bought and 

sold on websites that prompted the introduction of H.R. 1865-and some of the undersigned 

organizations already protested this serious oversight by the Subcommittee' which convened the 

hearing in order to make critical decisions about a law that directly impacts sex trafficking survivors. 

A similarly glaring omission was the failure to hear from sex trafficking victim advocacy organizations 

that have spent decades fighting to protect the rights of sex trafficking victims, or from law enforcement 

agencies that combat this crime and fight to protect victims every day.4 During the hearing, Professor 

Mary Leary, who has substantial expertise in issues related to child protection and victims' access to 

justice, provided a critical window into the perspective of victim advocates and law enforcement, but 

she was repeatedly passed over by members in favor of hearing the concerns of former Congressman 

Chris Cox, who testified on behalf of NetChoice, a technology trade group that represents the interests 

of internet companies. While we do not dispute that the complex nature of this legislation requires a 

balancing of interests, the Subcommittee failed to strike that balance by choosing instead to rely on 

technology industry advocates to advise the Subcommittee on how to combat sex trafficking. 

NetChoice, for example, was allowed to present a self-described "novel legislative approach to 

addressing the problem of sex trafficking." 5 

1 Online Sex Trafficking and the Communications Decency Act: Hearing Before the Subcomm. on Crime, Terrorism, 

Homeland Security, and Investigations, 115 Cong. (Oct. 3, 2017). 2 H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking (FOSTA). 3 Letter from Coalition Against Trafficking in Women (CATW), Exodus Cry, National Center On Commercial Sexual 

Exploitation (NCOSE), Shared Hope International, and Survivors for Solutions to Subcommittee on Crime, 

Terrorism, Homeland Security, and Investigations (Oct. 3, 2017). 4 Notably, when the Senate Commerce Committee held a hearing on S. 1693, the Stop Enabling Sex Traffickers Act 

of 2017 (SESTA), witnesses included the mother of a slain child sex trafficking victim who had been sold for sex on 

Backpage.com, and California Attorney General Xavier Becerra who is currently prosecuting Backpage executives 

and faced the dismissal of several state charges in that prosecution due to Section 230 immunity. 5.1693, The Stop 

Enabling Sex Traffickers Act of 2017: Hearing before the Senate Committee on Commerce, Science, and 

Transportation, 115 Cong. (September 19, 2017). 5 NetChoice Press Release, "NetChoice Calls On U.S. Congress To Leverage Fullest Extent of the Law to Pursue and 

Prosecute Online Sex Trafficking," October 3, 2017. 
85 


The undersigned anti-trafficking organizations respectfully submit this joint statement for the purpose of 

correcting this imbalance. NetChoice's testimony paints a picture of the statutory scheme 

Representative Cox may have envisioned when drafting the legislation in 1996, but NetChoice's 

testimony misconstrues the actual caselaw interpreting Section 230 in the context of online facilitation 

of sex trafficking. Rather than the "clear fact-based test" 6 that NetChoice claims should be applied based 

on the "plain language of the statute,"7 the way that courts have actually interpreted Section 230 with 

regard to online facilitation of sex trafficking has repeatedly undermined and essentially eviscerated the 

"clear test" that NetChoice states is in enshrined in Section 230. We also disagree with NetChoice's 

assertion that amending Section 230 will undermine the goal of having a national standard for applying 

the protections of Section 230; indeed, clarifying Section 230 in the context of online facilitation of sex 

trafficking will resolve the conflict in existing case law and clarify the intent of the drafters-both of 

whom have testified on the record about how they intended for the law to be applied8

-to ensure that 

courts will truly have a clear standard for deciding these cases in the future. 

The Need For Statutory Clarification of Section 230 to Address Online Facilitation of Sex Trafficking: 

Despite the intended goals of Section 230, the problem of online facilitation of sex trafficking is real, and 

the need to amend Section 230 to clarify its application in these cases is equally real, and severely 

overdue. The test that NetChoice claims is already codified in Section 2309 and would allow for 

companies like Backpage.com to face criminal and civilliability10 is not actually codified in Section 230. 

Instead, this "test" for determining when an interactive computer service provider can be considered an 

information content provider and consequently lose the protection of Section 230 immunity derives 

from caselaw. Specifically, the test that NetChoice describes appears to derive from the decision in Fair 

Housing Council v. Roommates.com,11 a case that has not been followed in any ofthe cases against 

Backpage.com,12 except one civil case.13 

6 Statement of Chris Cox to Subcommittee on Crime, Terrorism, Homeland Security, and Investigations (Oct. 3, 

2017) p.7. 7 1d. at ii. 8 I d. at 1, 7; Testimony of Senator Ron Wyden, 5.1693, The Stop Enabling Sex Traffickers Act of 2017: Hearing 

before the Senate Committee on Commerce, Science, and Transportation, 115 Cong. (September 19, 2017). 9 Statement of Chris Cox to Subcommittee on Crime, Terrorism, Homeland Security, and Investigations (Oct. 3, 

2017) p.7. 10 ld. at 12-16. 11 Fair Hous. Council of San Fernando Valley v. Roommates. Com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008). 12 M.A. ex rei. P.K. v. Viii. Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1052 (E.D. Mo. 2011); Doe ex rei. Roe v. 

Backpage.com, LLC, 104 F. Supp. 3d 149, 157 (D. Mass. 2015), aff'd sub nom. Jane Doe No. 1 v. Backpage.com, LLC, 

817 F.3d 12 (1st Cir. 2016), cert. denjed. 137 S. Ct. 622, 196l. Ed. 2d 579 (2017); People v. Ferrer, No. 16FE024013, 

Ruling on Defendant's Motion to Dismiss (Aug. 23, 2017). 13 J.S. v. Viii. Voice Media Holdings, L.L.C .• 184 Wash. 2d 95, 103, 359 P.3d 714, 718 (2015) ("it is important to 

ascertain whether in fact Backpage designed its posting rules to induce sex trafficking to determine whether 

Backpage is subject to suit under the CDA because 'a website helps to develop unlawful content, and thus falls 

within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.' Fact-finding 

on this issue is warranted.") (citing Fair Hous. Council of San Fernando Valley v. Roommates. Com, LLC, 521 F.3d 

1157, 1166 (9th Cir. 2008)). 
86 


As NetChoice accurately points out, Section 230 defines an "information content provider" to include 

"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."14 However, 

beyond providing this definition of a content creator, and providing immunity for interactive computer 

service providers by restricting liability to the information content provider as the creator of the 

content,15 the statute itself does not set out a test for determining when an "interactive computer 

service" should be considered an "information content provider" and consequently lose the protection 

of Section 230 immunity. While development of content is referenced in the definition of a content 

creator, the statute does not define what it means to "develop" content," and that is where the 

case/ow provides a patchwork approach, either employing a standard similar to the Roommates.com 

decision-as seen followed in defamation and business fraud cases17 -or in the context of online 

facilitation of sex trafficking, employing standards that interpret development under Section 230 as 

extending broad immunity to interactive computer service providers despite evidence of the entity's 

role in developing content, applying a definition of development that is so narrow that it would be 

virtually impossible to find that an online entity participated in the development of content if it did 

anything other than conceive, create and write the content itself. 18 

Considering this case law background, we must respectfully, but strongly disagree with NetChoice's claim 

that Section 230 establishes a clear test for courts to decide if an interactive computer service provider 

has become an information content provider. NetChoice points to the First Circuit decision in Jane Doe 

No. 1 v. Backpage.com LLC19 as an "apparent anomaly."20 This is simply inaccurate. It is precisely in the 

14 47 U.S.C. § 230(f)(3); Statement of Chris Cox to Subcommittee on Crime, Terrorism, Homeland Security, and 

Investigations (Oct. 3, 2017) p.7. 15 47 U.S.C. § 230(c)(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.") 

16 FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009) ("[Section 230] does not define the term 

development.") 

17 NetChoice's testimony claims that "it is well established in the case law that under Section 230, a website 'can 

be both a service provider and a content provider . .," Statement of Chris Cox to Subcommittee on Crime, Terrorism, 

Homeland Security, and Investigations (Oct. 3, 2017) p.15. However, this is far from established. While NetChoice 

notes six cases that have followed the Roommates standard, this sampling of cases does not include cases 

involving online facilitation of sex trafficking. With the exception of a state case involving child pornography, the 

cases cited by NetChoice are limited to defamation or unfair trade practices. See, e.g .. FTC v. LeadCiick Media llC, 

7 838 F.3d 158 (2d Cir. 2016) (unfair trade practice); Vision Sec .. LLC v. Xcentric Ventures, LLC, No. 2:13-CV-00926, 

2014 WL 582180, at *1 (D. Utah Feb. 14, 2014) (online defamation and libel); F.T.C. v. Accusearch Inc .. 570 F.3d 

1187, 1190 (lOth Cir. 2009) (illegal trade of confidential telephone records); eDrop-Off Chicago llC v. Burke, No. 

CV 12-4095 GW (FMOX), 2012 WL 12882434, at *1 (C. D. Cal. May 11, 2012) (online defamation and trade libel); 

Huon v. Denton, 841 F.3d 733 (7th Cir. 2016) (online defamation). 18 See e.g., Jane Doe No.1 v. Backpage.com. LLC. 817 F.3d 12, 20 (1st Cir. 2016), cert. denied, 137 S. Ct. 622, 196l. 

Ed. 2d 579 (2017) ("[A]s long as 'the cause of action is one that would treat the service provider as the publisher of 

a particular posting, immunity applies not only for the service provider's decisions with respect to that posting, but 

also for its inherent decisions about how to treat postings generally."' (quoting Universal Commc'n Sys .. Inc. v, 

lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007)). 19 Jane Doe v. Backpage llC, 817 F.3d 12 (1'' Cir. 2016). 
87 


cases that have attempted to hold Backpage.com accountable for facilitating online sex trafficking that 

the courts have departed most dramatically from the development standard that NetChoice claims was 

intended to be applied. Not only have courts interpreted Section 230 as extending blanket immunity to 

Backpage.com-an online entity shown in a Senate Permanent Subcommittee on Investigations report 

to have knowingly facilitated child sex trafficking21-but these courts have specifically asked Congress to 

clarify Section 230 to avoid the unfair result that the courts say is dictated by the current statutory 

scheme." 

NetChoice's testimony also suggests that the cases against Backpage would have reached a different 

result if the courts considering application of Section 230 immunity to Backpage had the evidence from 

the Senate investigation before them to consider in deciding Backpage's role in developing content. 23 1f 

the standard that NetChoice claims should have been applied was employed by these courts, any 

evidence that Backpage had a role in creating or developing content should have opened the door to a 

"fact-based inquiry"24 to determine whether Backpage.com was a content creator. However, the lack of 

clarity in Section 230 regarding when an interactive computer service provider can be considered an 

information content provider prevented each of these cases from proceeding to the fact-finding stage. 

While the courts acknowledged the potential for Backpage to be liable if it is found to be a content 

creator," the courts were unwilling to find that Backpage's conduct as an interactive computer service 

provider could also constitute development of content and consequently remove it from CDA immunity. 

This confusion is probably most evident in the decision in People v. Ferrer where the court considered 

20 Statement of Chris Cox to Subcommittee on Crime, Terrorism, Homeland Security, and Investigations (Oct. 3, 

2017) p.15. 21 Backpage.com's Knowing Facilitation of Online Sex Trafficking, Senate Permanent Subcommittee on 

Investigations, Staff Report (January 10, 2017). 22 Jane Doe v. Backpage. LLC, 817 F.3d 12, 29 (1st Cir. 2016) ("If the evils that the appellants have identified are 

deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not 

through litigation."); M.A. v. Village Voice Media Holdings, et al .. 809 F.Supp. 2d 1041, 1058 (E.D. Mo. 2011) 

("Congress has declared such websites to be immune from suits arising from such injuries. It is for Congress to 

change the policy that gave rise to such immunity."); People of the State of California v. Carl Ferrer et al, No. 

16FE024013, Ruling on Defendant's Motion to Dismiss, p.18 (Aug. 23, 2017) ("[i]f and until Congress sees fit to 

amend the law, the broad reach of section 230 of the Communications Decency Act even applies to those alleged 

to support the exploitation of others by human trafficking."). 23 Statement of Chris Cox to Subcommittee on Crime, Terrorism, Homeland Security, and Investigations (Oct. 3, 

2017) pgs.15-16, footnote 41. 24 1d. at 7. 25 Doe ex rei. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149, 157 (D. Mass. 2015), aff'd sub nom. Jane Doe No. 1 v. 

Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), cert. denied, 137 5. Ct. 622, 196 L. Ed. 2d 579 (2017) ("Backpage's 

passivity and imperfect filtering system may be appropriate targets for criticism, but they do not transform 

Backpage into an information content provider."), People v. Ferrer, No. 16FE024013, p.18 (2017) ("This Court 

rejected the People's claim that Defendants actually created the content that led to their ability to live and derive 

support and maintenance from prostitution proceeds, when the face of the complaint demonstrated that 

Defendants engaged in protected publisher functions."), M.A. ex rei. P.K. v. Village Voice Media Holdings, LLC, 809 

F. 5upp.2d 1041,1044 (2011) ("M.A. describes Backpage as ... [an]lnformation Content Provider within 47 U.S.C. 

230 in that [Backpage] was responsible in part for the development and/or creation of information provided 

through the internet or other internet computer service in that...[Backpage] has posting rules and limitations which 

aid in the sight veiling of illegal sex services ads to create the veil of legality.") 
88 


much of the same evidence provided in the Senate report"" and still found that Section 230 immunity 

should be extended to Backpage, even if it engaged in actual criminal conduct." 

In Jane Doe v. Backpage LLC, the First Circuit interprets Section 230 as providing an "interactive 

computer service" an extremely broad veil of immunity for any conduct relating to content provided by 

another information content provider: "Though a website conceivably might display a degree of 

involvement sufficient to render its operator both a publisher and a participant in a sex trafficking 

venture (say, that the website operator helped to procure the underaged youths who were being 

trafficked), the facts pleaded in the second amended complaint do not appear to achieve this duality." 

Contrary to NetChoice's testimony which states that "the record before [the First Circuit] expressly did 

not allege that Back page contributed to the development of the sex trafficking content, even in 'part,"' 

the record reflects allegations that Backpage structured its website to facilitate sex trafficking which the 

court nevertheless found to be the actions of a mere publisher. 28 lt was the court's interpretation of the 

immunity provided to interactive computer service providers, rather than the lack of a specific allegation 

as to content creation, that led the court to extend broad immunity despite the "persuasive case" made 

by appellants and amici that "Backpage has tailored its website to make sex trafficking easier." 29 

With regard to Section 230's impact on state criminal prosecutions, one of the headings in NetChoice's 

testimony is "Why Backpage cannot use Section 230 as a shield from state prosecution." In addition to 

the inaccuracy of NetChoice's testimony with regard to the cases attempting to hold Backpage civilly 

liable, three additional cases demonstrate how Section 230 directly blocks states' efforts to hold 

Backpage, and similar entities, criminally liable under state law: Backpage.com LLC v. Cooper, 

Backpage.com LLC v. Hoffman and Backpage.com LLC v. McKenna.30 In each of these cases, the state 

enacted a law that would have criminalized knowingly publishing, disseminating or displaying 

advertisements for commercial sex acts with minors31-conduct that is specifically criminalized under 

the federal sex trafficking law.32 Almost immediately following enactment of each of these state criminal 

laws, Backpage.com and Internet Archive filed a lawsuit seeking to enjoin the statute based primarily on 

Section 230 immunity, and in each case, the court found the state statute inconsistent with Section 230, 

26 People v. Ferrer, No. 16FE024013, Ruling on Defendant's Motion to Dismiss, p.16 (Aug. 23, 2017) ("The People 

allege that Defendants 'manipulated' advertisements to evade law enforcement detection. The People state, 'In 

this way, rather than prevent a child from being sold for sex, the Defendants would knowingly profit from the 

child's commercial sexual exploitation and assist the trafficker to evade law enforcement."') (citing Amend. Camp. 

at 26). 27 & at 18 (Aug. 23, 2017). 28 Doe v. Backpage.com at 21. ("Although the appellants try to distinguish Doe by claiming Backpage's decisions 

about what measures to implement deliberately attempt to make sex trafficking easier, this is a distinction without 

a difference. Whatever Backpage's motivations, those motivations do not alter the fact that the complaint 

premises liability on the decisions that Back page is making as a publisher with respect to third-party content.") 29 Doe v. Backpage.com at 29. 30 Backpage.com. LLCv. McKenna. 881 F. Supp. 2d 1262 (W.D. Wash. 2012), Backpage.com, LLC v. Cooper, 939 F. 

Supp. 2d 805 (M.D. Tenn. 2013), Backpage.com. LLC v. Hoffman, No. 13-CV-03952 DMC JAD, 2013 WL 4502097, at 

*1 (D.N.J. Aug. 20, 2013). 31 1d. 32 ls U.S.C. § 1591(a)(l) ("whoever knowinglys advertises ... "); Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96, 104 

(D. D.C. 2016) (finding that advertisement of sex trafficking is not protected speech under the First Amendment). 
89 


demonstrating the broad immunity that Section 230 provides in the context of online facilitation of sex 

trafficking. 

NetChoice's claim that "[a]ny state or local criminal prosecution, and any civil suit, may therefore be 

maintained so long as it does not seek to violate the uniform national policy that internet platforms shall 

not be held liable for third party content created and developed wholly by others," belies the actual 

national policy established under Section 230, a policy that protects online entities from any potential 

liability, regardless of the facts. Just as the civil cases against Backpage have been almost uniformly 

dismissed without an opportunity to engage in the fact-based test that NetChoice claims is required 

under Section 230, Backpage.com successfully blocked states' attempts to codify state criminal penalties 

for conduct criminalized under the federal sex trafficking law merely because the laws potentially apply 

to online entities. Backpage's success in enjoining these state laws immediately following enactment 

demonstrates the flaw of relying on a Roommates' development standard as the sole solution to 

addressing Section 230 immunity for bad actors engaged in online facilitation of sex trafficking. Despite 

the possible effectiveness of this standard in the context of fraud, defamation and the other handful of 

cases cited by NetChoice, this standard is clearly ineffective in addressing the conflict between Section 

230 immunity and the ability of states and victims to fight online sex trafficking. 

When cases like those brought against Backpage.com have presented a scenario where online entities 

are shaping and directing the development of content originally created by another "information 

content provider," and the courts have had to decide whether an entity could be both an interactive 

computer service provider and an information content creator, there is a distinct difference in how this 

determination is made in the cases addressing online facilitation of sex trafficking. Roommates went one 

way-deciding that participating in the development of content was enough to consider an interactive 

computer service a content creator-and the cases deciding whether Backpage.com could be treated as 

a content creator went the other way-holding that if it facilitated illegal conduct or even if it directly 

engaged in criminal conduct, 33 it was immune. With this dramatic split in the caselaw, the issue that is 

"clear" is the need to amend Section 230 to clarify how Section 230 applies to online facilitation of sex 

trafficking. 

Resolving this conflict in the caselaw through statutory clarification in the context of online facilitation of 

sex trafficking is the focus of the current legislation. FOSTA also does not do more than that. FOSTA does 

not create a sex trafficking "carve out," suggesting that sex trafficking is to be treated differently than 

other cases. Instead, FOSTA clarifies that the common sense interpretation of Section 230 that was 

intended to be applied by its original drafters but has been repeatedly shunned by the courts in the 

context of online facilitation of sex trafficking, was indeed intended to be applied in these cases. 

33 See M.A. ex rei. P.K. v. Viii. Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1052 {E. D. Mo. 2011); Doe ex rei. 

Roe v. Backoage.com. LLC, 104 F. Supp. 3d 149, 157 {D. Mass. 2015), aff'd sub nom. Jane Doe No. 1 v. 

Backpage.com. LLC. 817 F.3d 12 (1st Cir. 2016), cert. denied. 137 S. Ct. 622, 196 L. Ed. 2d 579 (2017); People v. 

Ferrer, No. 16FE024013, Ruling on Defendant's Motion to Dismiss, p.18 (Aug. 23, 2017). 
90 


FOSTA Will Help Clarify the National Standard: 

By focusing on the area of law where Section 230 has been most harmfully misinterpreted to provide 

immunity for facilitating illegal conduct, 34 and in the most recent decision, immunity for directly 

engaging in illegal conduct/5 FOSTA provides a targeted response to the various courts that have called 

on Congress to clarify Section 230 immunity in the context of online facilitation of sex trafficking. In this 

way, by focusing on the specific issue that has created confusion in the courts and led to egregiously 

unfair results for sex trafficking victims, FOSTA avoids a larger overhaul of Section 230 immunity that 

would require speculating the various circumstances where a court's interpretation of Section 230 could 

depart from its intended application. Indeed, the legislative history established by this legislation will 

also help to guide courts back to a common sense interpretation of Section 230 as other criminal or civil 

contexts arise that require guidance. If Congress fails to act however, courts will continue to follow 

established precedent and allow online entities that facilitate online sex trafficking to continue profiting 

from the exploitation of victims with impunity, and as the caselaw develops in new areas, the 

Backpage.com standard will likely be interpreted as the standard to be applied to other criminal activity 

occurring online. 

FOSTA also does not impose new or additional duties on online entities. Under the standard that 

NetChoice testified was intended to be applied under Section 230, any online entity that does "anything 

to develop the content created by another, even if only in part," would be "liable along with the content 

creator." The standard of knowing or reckless conduct36 under FOSTA does nothing to expand the 

application of this standard, but since courts have not applied this standard in the context of online 

facilitation of sex trafficking, FOSTA clarifies that immunity can be denied to online entities acting in bad 

faith. Entities like Backpage.com that are designed to contribute to the illegality occurring online would 

not be able to assert immunity under Section 230 while entities acting in good faith that do not 

contribute to the illegality and/or make good faith efforts to filter or remove illegal content, will have 

immunity under Section 230. 

Lastly, NetChoice's claim that "existing federal criminal law suffices to prosecute the offenses of which 

Backpage is allegedly guilty"37 reflects a lack of expertise regarding the complexity of sex trafficking 

"As Prof. Mary Leary testified, this is "a new form of exploitation [that] has not only emerged on the internet, but 

is uniquely empowered by it." Statement of Professor Mary Leary to Subcommittee on Crime, Terrorism, 

Homeland Security, and Investigations (Oct. 3, 2017) p.8. 35 People v. Ferrer, No. 16FE024013, Ruling on Defendant's Motion to Dismiss, p.18 (Aug. 23, 2017). 36 Statement of Professor Mary Leary to Subcommittee on Crime, Terrorism, Homeland Security, and Investigations 

(Oct. 3, 2017) p.14 ("The standard of knowing or reckless conduct that furthers a sex trafficking offense is a clear 

one. Both are commonly understood concepts in criminal law and are challenging states of mind for an attorney to 

prove. Recklessness, for example, requires the prosecution to prove that the defendant 'consciously disregard[ed] 

a substantial and unjustifiable risk.' In assessing the risk courts are guided to consider the nature and 

circumstances known to the defendant. Finally, the defendant's disregard of the risk cannot be minor but must be 

of such a nature and degree that its disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actor's situation. The standard of knowing is even higher in criminal law and 

requires proof that the defendant be practically certain his conduct will cause a venture of human trafficking.") 37 Statement of Chris Cox to Subcommittee on Crime, Terrorism, Homeland Security, and Investigations (Oct. 3, 

2017) p.ll. 
91 


investigations and the impact of this crime on sex trafficking victims as well as local communities. 

Combatting sex trafficking is not merely a federal issue in need of political will. Sex trafficking is an 

insidious, growing crime that thrives when our attention is turned elsewhere, and requires a multipronged approach to impact its growth. Limiting the array of potential responses to sex trafficking to 

solely federal criminal prosecution allows this hidden crime to grow where it is not addressed by all of 

the pressure points that can be brought to bear; civil and criminal, federal and state enforcement are 

needed and creating gaps in this response leads to what we have seen happen with the explosion of sex 

trafficking on the internet. Relying solely on federal criminal law to address online facilitation of sex 

trafficking is simply unreasonable and unfair to victims of sex trafficking who will continue to be 

deprived of a day in court to hold the entities that profit from their exploitation accountable. Moreover, 

even if a federal prosecution is brought against Backpage, that alone would not change the business 

model that Backpage exemplifies, because relying on federal prosecutions alone is not adequate to flip 

the risk-reward equation that is such a critical component of combatting sex trafficking. States would 

still lack the ability to address online facilitation of sex trafficking by other unscrupulous companies that 

are already expanding into this lucrative, low-risk space.'" 

The obstructive litigation arising from Backpage.com's exploitation of the Section 230 immunity and the 

pervasive confusion in interpreting how this immunity should apply in the context of online facilitation 

of sex trafficking have allowed Backpage.com to perpetuate its business model and amass enormous 

profits while sex trafficking victims continue to be bought, sold and serially raped through online 

platforms that profit from their exploitation. While we do not disagree with NetChoice's testimony that 

Backpage.com is a content creator,39 there is no factual basis for its statement that "[s]ome mistakenly 

claim that Section 230 prevents action against websites that knowingly engage in, solicit, or support sex 

trafficking."40 As the case law resulting from attempts to hold such websites accountable demonstrates, 

this statement is simply inaccurate, and we must ask how NetChoice can make this statement in good 

faith knowing that Backpage.com has tied up state attorneys general and sex trafficking victims in 

litigation for years and years while it continued to profit from the exploitation of victims. Courts have 

made it clear that they need Congress to act in order to avoid the unfair results that we have seen in the 

cases against Backpage, and we cannot ask sex trafficking victims and states to wait several years longer 

to "let the courts get it right." As NetChoice testified, "Providing both criminal and civil law enforcement 

the tools they need to succeed in the courts is entirely consonant with maintaining the benefits of a 

vibrant internet." We could not agree more. It is time for Congress to act and passing FOSTA is the 

action that needs to be taken. 

Respectfully submitted by the following organizations: 

38 Rob Spectre, I Support A Free And Open Internet. We're Making SESTA Harder Than It Needs To Be, 

Hackernoon.com (Sept. 27, 2017) https:/ /hackernoon.com/i-support-a-free-and-open-internet-and-were-makingsesta-harder-than-it-needs-to-be-a687bbabe52e. 

39 Statement of Chris Cox to Subcommittee on Crime, Terrorism, Homeland Security, and Investigations (Oct. 3, 

2017) p.l4. 40 ld. at 10. 
92 


Shared Hope International, Former Congresswoman linda Smith, President & Founder 

Exodus Cry, Benjamin Nolot, CEO/Founder 

National Center on Sexual Exploitation (NCOSE), lisa L. Thompson, Vice President & Director of 

Education and Research 

Coalition Against Trafficking in Women, Taina Bien-Aime, Executive Director 
93 


The Honorable Marsha Blackburn 

Chairman 

November 27, 2017 

Subcommittee on Communications and Technology Committee on Energy and Commerce 

United States House of Representatives 

2152 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Blackburn: 

We want to thank you for scheduling this important legislative hearing on H.R. 1865, the Fight 

Online Sex Trafficking Act of 2017 (FOSTA). The need for legislation to clarify Section 230 of 

the Communication's Decency Act (CDA) is urgently needed given the recent 1•1 Circuit ruling 

in Doe v. Backpaqe. That ruling held that even if Backpage had participated in the crime of 

sex trafficking, Section 230 shielded the company from the claims filed by child victims. We 

are greatly appreciative of the passion and dedication shown by Representative Ann Wagner, 

the lead sponsor of FOST A. Representative Wagner fully understands the barriers Section 230 

has created in the ability of state law enforcement and survivors to go after websites that are 

engaged in facilitating human trafficking. 

However, we would be remiss if we did not express our objection to recent efforts by some in 

the tech sector to undermine this proposed legislation with alternatives that do not specifically 

address the Section 230 problem identified by not only the 1st Circuit Court, but other judges 

around the country. We want to be clear that those alternatives fail to respond to the urgency of 

the 1st Circuit decision and are not supported by our organizations. We will strongly and 

collectively oppose any such efforts that do not address the Section 230 problem. 

It is important to note that the 1st Circuit Court, in its ruling, recommended that the children seek 

a legislative remedy and the children are working to do just that. We were thrilled when the 

Internet Association (lA), after its staunch opposition to any changes to Section 230, endorsed 

the Senate version of FOSTA, S.1693, the Stop Enabling Sex Traffickers Act of 2017 (SESTA) 

and the bill, which has 48 co-sponsors on a bipartisan basis, was passed unanimously by the 

Senate Commerce Committee. Please see Facebook's public commitment to this legislative 

clarification of Section 

230:https://m.facebook.com/sheryllposts/1 0159461384670177?pnref=story 

We look forward to working with you, Representative Wagner, and the other 170 plus cosponsors to ensure that we pass legislation that fixes Section 230 so that websites that are 

engaged in human trafficking will no longer be able to hide behind the CDA and will be held 

accountable for their actions. 

Sincerely, 

SHAREDHOPE INTERNATIONAL 

NATIONAL CENTER ON SEXUAL EXPOITATION 

COVENANT HOUSE 

RIGHTS4GIRLS 

ENOUGH IS ENOUGH 
94 


COALITION AGAINST TRAFFICKING IN WOMEN 

WORLD WITHOUT EXPLOITATION 

NATIONAL ORGANIZATION FOR WOMEN NY 

ECPAT USA 

SANCTUARY FOR FAMILIES 

WOMEN'S JUST NOW 

THE VOICES AND FACES PROJECT 

MY LIFE MY CHOICE 

SAVED IN AMERICA 

CONSUMER WATCH DOG 

LYNCH FOUNDATION FOR CHILDREN 

TRAFFICKING IN AMERICA TASK FORCE 

NOT ON MY WATCH! SAFE HAVEN NETWORK INTERNATIONAL 

NYC FAITH-BASED COALITION AGAINST HUMAN TRAFFICKING AND DOMESTIC 

VIOLENCE 

FREEDOM FROM EXPLOITATION, INC 

Autumn Burris, Survivor/Leader- Survivors for Solutions 

Rebecca Bender, Survivor/Leader- The Rebecca Bender Initiative 

Jerome Elam, Survivor/Leader- The Task Force on Trafficking in America 

Brooke Axtell, Survivor/Leader- She Is Rising 

Jenelle Gordon, Survivor/Activist 

Mary Mazzie and the I AM JANE DOE, Survivors and Families 

Erik Bauer, Attorney for JS and the other Jane Does in JS v Village Voice Media Holdings 

Gina DeBoni, Attorney for the daughter of Yvonne Ambrose 

Autumn VandeHei, Activist 

Barbara Amaya, CDA, PHD, Author, Advocate, Survivor 
95 


11/30/2017 Wyden blocks bill to stop online sex trafficking 1 Opinion 1 Eugene, Oregon 

NOVEMBER 30, 2017 SUBSCRIBE LOGIN 

~bt 1Rtgisttr-Q5uar1t 

GUEST VIEWPOINT 

Wyden blocks bill to stop online sex 

trafficking 

BY REBECCA BENDER 

For The Register-Guard 

NOV. 29,2017 

S ex trafficking is talked about everywhere right now. Most of the time we never see it -

so it must not be happening here in Oregon, right? 

Wrong. With the advent of the Internet, traffickers and pimps have moved off the streets and 

are selling their "product"- mostly young girls -online. 

htlp://registerguard.comfrg/opinion/36193361-78/wyden-b!ocks-bill-to-stop-online-sex-trafficking.htm!.csp 118 
96 


11/30/2017 Wyden blocks bill to stop online sex trafficking 1 Opinion 1 Eugene, Oregon 

Shocking, I know. But these children are just a click away. You can go right now on the regular 

Web (not the Dark Web) and order a human for sex to be at your door within 15 minutes. It 

happens in every town and city across Oregon in numbers that would make your head spin. 

It's horrific, but we can no longer pretend it's not happening. We need to collectively wake up 

so that we can better protect our children. 

How, exactly, are companies getting away with creating these awful websites where people 

are bought and sold without any penalty? Well, it's called the Communication Decency Act, 

specifically Section 230, also referred to as the CDA230. This law was passed back in 1996 

before the Internet was anything like it is today, to protect companies from being liable for 

third-party postings. 

Which made total sense. It wouldn't be right for me to get into trouble because some weirdo 

tried to sell drugs on the comments section of my blog. Nor do any of us want Facebook or 

Coogle to get in trouble for stupid postings people make every hour of every day. 

But a lot has changed in the last 20-plus years. There are websites that make hundreds of 

millions of dollars a year facilitating sex trafficking (and other illegal activity), and our laws 

haven't caught up with them. 

http:f/registerguard.comfrg/opinion/36193361-78/wyden-blocks-bil!-to-stop-online-sex-trafficking.htm!.csp 218 
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11/30/2017 Vl/yden blocks bill to stop online sex trafficking 1 Opinion ! Eugene, Oregon 

Recently, several sexually exploited children filed suit against one of these websites, Backpage, 

but their case was dismissed. The court stated that even if Backpage were engaged in the 

crime of trafficking, it was nonetheless protected by CDA320. The court advised survivors to 

seek a legislative solution. (Learn more in the Netflix documentary, "I Am Jane Doe:') 

So a group of lawyers, survivors and activists got together with members of Congress and 

created an amendment to the CDA230 that would still protect all of our freedom and privacy, 

while targeting only the bad actors who are purposely creating companies and websites for 

illegal activity- especially when it comes to harming children. 

This narrow, surgical amendment to the CDA230 was titled SESTA: The Stop Enabling Sex 

Trafficking Act of 2017. Companies that are criminally involved with sex trafficking should be 

prosecuted at the state and federal level. Companies that engage in this type of criminal 

http://registerguard.com/rg/opin1on/36193361-781wyden-blocks-bill-to-stop-online-sex-trafficking.html.csp 318 
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11/30/2017 Wyden blocks bill to stop online sex trafficking 1 Opinion 1 Eugene, Oregon 

conduct should also have to answer to civil claims. Forty-eight senators have signed on to this 

bill because it makes sense to amend such an outdated law. 

Sen. Ron Wyden, however, is not supporting the bill - and he actually demanded a hold on 

this critical legislation, citing privacy and censorship concerns. Having met with Wyden's staff 

on the need for victims to access justice, I am disappointed by his announcement. Wyden is 

alone in blocking this critical bipartisan legislation from being voted on by the full Senate -

legislation that was unanimously passed by the Senate Commerce Committee two weeks ago. 

Survivors of sex trafficking and commercial sexual exploitation know the deep and profound 

harm caused by sex trafficking. We lead organizations that provide services and advocacy for 

exploited individuals, and continue to see the irreparable harm caused by online sex 

trafficking. 

It is time to hold these websites accountable for the harm that they cause - after all, we 

wouldn't allow someone to sell a child for sex on the street corner, so why are criminals able 

to do this online and hide behind the CDA? 

SESTA is needed to help disrupt the purchase of sex online with children and trafficked 

persons. Every day, thousands of women and children are marketed and purchased online 

with ease and impunity. It is as easy to order sex with children and exploited adults as it is to 

order a pizza. SESTA would eliminate this judicial loophole so that companies like Backpage 

can no longer operate with impunity. 

Oregonians, we need you to take a stand! Please write in, call, email Wyden and demand he 

support SESTA. Stand with us to provide victims of online sex trafficking with a pathway to 

justice. 

He hasn't listened to survivors and activists, but he will listen to you. Go to 

www.wyden.senate.govjcontact to demand Senator Wyden sign on to SESTA. Read more 

about the bill at www.congress.govfbill/llSth-congressjsenate-bill/1693. 

Rebecca Bender, CEO and founder of the Rebecca Bender Initiative, is the author of"Roadmap to 

Redemption." She serves as co-chair of the Oregon Department ofjustice's Human Trafficking 

Advisory Council and is a survivor of human trafficking after being lured of! the University of 

Oregon campus. 

More GUEST VIEWPOINT articles» 

htfp://registerguard.com/rg/opinion/36193361-78/wyden-b!ocks-bi!l-to-stop-online-sex-trafficking.html.csp 418 
99 


<!tongress of t}fe 111niteit ~fates 

mnsqington, ilo.t 20515 

Larry Page 

Chief Executive Officer 

Google, Inc. 

1600 Amphitheatre Parkway 

Mountain View, CA 94043 

Dear Mr. Page: 

April 3, 2012 

As Members of Congress committed to combating all forms of human trafficking, we write to 

you with concerns about reports ofGoogle's advertising practices. Recently, dozens of human 

rights groups called on the National Association of Attorneys General to investigate Google's 

advertising practices that these groups believe contribute to the problem of human trafficking in 

America and globally. 

Whatever Google is doing or is not doing to prevent these sorts of advertisements from 

appearing on their properties, Google has not satisfied a significant number ofhuman rights 

organizations who have a specialized understanding of how these ads contnlmte to the human 

trafficking of women and girls. We are particularly concerned that these human rights groups 

may have identified yet another area where Google profits from illicit activities such as Google's 

advertising of controlled substances for which your company paid a $500,000,000 forfeiture to 

the United States last year. 

Accordingly, we request that you provide us with answers to the following initial questions we 

have regarding these developments: 

l. Apart from Google's donations to large human rights organizations, what is your 

company doing internally to ensure that sexually exploitative advertisements do not 

appear? 

2. What is Google's stated internal policy regarding exploitative advertising? What 

evidence do you have that those policies are being complied with by both Google's 

internal and external advertising sales teams? 

3. What steps does Google take to instruct its advertising sales managers, consultants, and 

other employees regarding the evaluation of advertisers of such exploitative marketing? 

4. If Google were to determine that it profits from such advertising, what steps would you 

take to ensure those profits were publicly disclosed and then disgorged? Would that 

process require restating Google's earnings for past securities filings? 

Online markets provide traffickers with the ability to reach untold customers across all political 

jurisdictions. As a global leader and innovator in internet technologies, Google is in a unique 

PRINTED ON RECVCL.EO PAPER 
100 


position to do its part to fight human exploitation and trafficking, and we would encourage the 

company to proactively address these concerns. 

We look forward to your reply and to engaging with Google cooperatively to stop human 

trafficking in America and around the world. 

r~L-~ ~LAtKBURN 

Member of Congress Member of Congress 
101 


Mo•·gan Lewis 

Chris Cox 

Partner. Morgan Lewis & Beckius LLP 

President, Morgan Lewis Consulting LLC 

+1.714.830.0606 

chris.cox@morganlewis.com 

November 30, 2017 

VIA ELECTRONIC MAIL 

Honorable Marsha Blackburn 

Chairman, Subcommittee on Communications and Technology 

Committee on Energy & Commerce 

U.S. House of Representatives 

2125 Rayburn Building 

Washington, DC 20015 

Honorable Michael F. Doyle 

Ranking Member, Subcommittee on Communications and Technology 

Committee on Energy & Commerce 

U.S. House of Representatives 

2322A Rayburn Building 

Washington, DC 20015 

Dear Chairman Blackburn and Ranking Member Doyle: 

At the invitation of the Subcommittee, I write to provide additional perspective as you consider 

legislation to more effectively combat sex trafficking via the internet. 

As your former House colleague, together with then-Rep. Ron Wyden, I authored the Internet 

Freedom and Family Empowerment Act in 1995, which passed the House as a standalone bill 

that year and later became law as Section 230 of the Communications Decency Act. Having 

followed the development of the case Jaw over the last two decades, I have been alternately 

pleased and disappointed with various judicial interpretations of the statute. Like many, many 

people, I am angered by the findings of the Staff Report of the Senate Permanent Subcommittee 

on Investigations concerning Backpage.com, and therefore frustrated with the success that 

Backpage has enjoyed (albeit not consistently) in fending off civil and criminal claims. 

For these reasons, I completely support the current effort underway to ensure that courts 

understand what Congress intended when we voted for this legislation in the first place. As 

stated in the preamble to H.R. 1865, Section 230 "was never intended to provide legal protection 

Morgan, Lewis & Bockius LLP 

600 Anton Blvd., 18th Floor 

Costa Mesa, CA 92626-7653 

United States 

0 +1.714.830.0600 

0 +1.714.830.0700 
102 


Honorable Marsha Blackburn 

Honorable Michael F. Doyle 

November 30, 2017 

Pagc2 

to websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex 

trafficking victims." The internet, just like the mails, telegraph, and telephone before it, can be 

and regularly is used to commit crimes. 

I agree with Chairman Blackburn that while the Senate bill "isn't perfect," and while the House 

bill requires "some more work," Congress can "take a proactive step in protecting current and 

potential victims of sex trafficking" with well-drafted legislation. Crafting the legislative 

language carefully will be vitally important to ensure that courts do not again misread 

Congressional intent. 

Background and Purpose of Section 230 

When Rep. Wyden and I conceptualized the law in 1995, roughly 20 million American adults 

had access to the internet, compared to 7.5 billion today. 

Those who were early to take advantage of this opportunity, including many in Congress, 

quickly confronted this essential aspect of online activity: many users converge through one 

portal. The difference between newspapers and magazines, on the one hand, and the World 

Wide Web (as it was then called), on the other hand, was striking. In the print world, human 

beings reviewed and cataloged editorial content. On the web, users themselves created content 

which became accessible to others immediately. While the volume of users was only in the 

millions, not the billions as today, it was even then evident to almost every user of the Web that 

no group of human beings would ever be able to keep pace with the growth of content on the 

web. 

That year, on a flight from California to Washington, DC during a regular session of Congress, I 

read a newspaper account of a New York Superior Court case that troubled me deeply. The case 

involved a bulletin board post by an unknown user on the Prodigy web service. The post said 

disparaging things about an investment bank. The bank filed suit for libel, but couldn't locate 

the individual who wrote the post. So instead, the bank sought damages from Prodigy, the site 

that hosted the bulletin board. 

Up until then, the courts had not permitted such claims for third-party liability. In 1991, a 

federal district court in New York held that CompuServe was not liable in circumstances like the 

Prodigy case. The court reasoned that CompuServe "had no opportunity to review the contents 

of the publication at issue before it was uploaded into CompuServe's computer banks," and 

therefore was not subject to publisher liability for the third party content. 

But in the 1995 New York Superior Court case, the court distinguished the CompuServe 

precedent. The reason the court offered was that unlike CompuServe, Prodigy sought to impose 

general rules of civility on its message boards and in its forums. While Prodigy had even more 
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Honorable Marsha Blackburn 

Honorable Michael F. Doyle 

November 30, 2017 

Page 3 

users than CompuServe and thus even less ability to screen material on its system, the fact it 

announced such rules and attempted to enforce them was the judge's basis for subjecting it to 

liability that CompuServe didn't face. 

The perverse incentive this case established was clear: any provider of interactive computer 

services should avoid even modest efforts to police its site. If the holding of the case didn't 

make this clear, the damage award did: Prodigy was held liable for $200 million. 

By the time I landed in Washington, I had roughed out an outline for a bill to overturn the 

holding in the Prodigy case. 

The first person I turned to as a legislative partner on my proposed bill was my Democratic 

colleague, Rep. Wyden. We had previously agreed to seek out opportnnities for bipartisan 

legislation. As this was a novel question of policy that had not hardened into partisan 

disagreement (as was too often the case with so many other issues), we knew we could count on 

a fair consideration of the issues from our colleagues on both sides of the aisle. 

For the better part of a year, we conducted outreach and education on the challenging issues 

involved. In the process, we built not only overwhelming support, but also a much deeper 

understanding of the unique aspects of the internet that require clear legal rules for it to function. 

The rule established in the bill, which we called the Internet Freedom and Family Empowerment 

Act, was crystal clear: the government would impose liability on criminals and tortfcasors for 

their wrongful conduct online. It would not shift that liability to internet platforms, except where 

the platforms themselves were complicit in the illegal online conduct, because doing so would 

directly interfere with the essential functioning of the internet. 

Rep. Wyden and I were well aware that whether a person is involved in criminal or tortious 

conduct is in every case a question of fact. Simply because one operates a website, for example, 

does not mean that he or she cannot be involved in lawbreaking. To the contrary, as the last two 

decades of experience have amply illustrated, the internet- like all other means of 

telecommunication and transportation- can be and often is used to facilitate illegal activity. 

Section 230 was written, therefore, with a clear fact-based test: 

Did the person create the content? If so, that person is liable for any illegality. 

Did someone else create the content? Then that someone else is liable. 

Did the person do anything to develop the content created by another, even if only in 

part? If so, the person is liable along with the content creator. 
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Honorable Marsha Blackburn 

Honorable Michael F. Doyle 

November 30, 2017 

Page4 

The plain language of the statute directly covers the situation in which someone (or some 

company) is only partly involved in creating the content. Likewise, it covers the situation in 

which they did not create the content but were, at least in part, responsible for developing it. In 

both cases, Section 230 comes down hard on the side oflaw enforcement. A website operator 

involved only in part in content creation, or only in part in the development of content created by 

another, is nonetheless treated the same as the content creator. 

Here is the precise language of section 230 in this respect: 

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 .... 

These words in Section 230- "in part" and "development of'- are the most important part of 

the statute. That is because in enacting Section 230, it was not our intent to create immunity for 

criminal and tortious activity on the internet. To the contrary, our purpose (and that of every 

legislator who voted for the bill) was to ensure that innocent third parties will not be made liable 

for unlawful acts committed wholly by others. If an interactive computer service becomes 

complicit, in whole or in part, in the creation of illicit content- even if only by partly 

"developing" the content- then it is entitled to no Section 230 protection. 

Rep. Wyden and I knew that, in light of the volume of content that even in 1995 was crossing 

most internet platforms, it would be unreasonable for the law to presume that the platform will 

screen all material. We also well understood the corollary of this principle: if in a specific case 

a platform actually did review material and edit it, then there would be no basis for assuming 

otherwise. As a result, the plain language of Section 230 deprives such a platform of immunity. 

We then created an exception to this deprivation of immunity, for what we called a "Good 

Samaritan." Ifthe purpose of one's reviewing content or editing it is to restrict obscene or 

otherwise objectionable content, then a platform will be protected. Obviously, this exception 

would not be needed if Section 230 provided immunity to those who only "in part" create or 

develop content. 

The Importance of Section 230 for User-Generated Content 

The important task you have undertaken is to draft legislation to give prosecutors and civil 

litigants better tools to prosecute sex traffickers. In doing so, it will also be important to preserve 

the Good Samaritan protections for internet platforms that take action "in good faith to restrict 

access to ... obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise 

objectionable" material. This is central to the operation of Section 230. Without this protection, 

the perverse incentive will be for platforms to avoid any effort to monitor third party content-
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Honorable Marsha Blackburn 

Honorable Michael F. Doyle 

November 30, 2017 

PageS 

the situation that would have existed had Congress not acted 20 years ago. 

The language in H.R. 1865 as introduced does not fit well within the existing statutory 

framework. Instead of harmonizing with the Good Samaritan provision, it simply exempts "any 

... Federal or State law that provides causes of action, restitution, or other civil remedies" related 

to sex trafficking. It also grafts onto Section 230's objective test- was the defendant a content 

creator or developer, at least in part?- a new and very different test: did the defendant know, or 

should the defendant have known? (The latter is what courts often usc as the test for 

recklessness.) 

Section 230 is supposed to be about incentives. Congress should want to reinforce incentives for 

platforms to keep the internet free of obscenity and other objectionable content. The law 

recognizes that it would be impossible for most platforms to read all of the user-generated 

content to screen out objectionable material, and so does not penalize them for acting against 

only some of it. 

If a new standard of "knew or should have known" is added to the mix, what does this do to the 

incentive to be a Good Samaritan? Now the platform intermediary can be second-guessed. This 

is the opposite of the Section 230 approach. If such language is added to Section 230, the law 

will be at war with itself. Undoubtedly the new language would win the war, trumping the Good 

Samaritan protection because of the opportunity for second guessing whether the website knew 

or should have known. In response to the new language, internet platforms might attempt to read 

all user-generated content, if they can (most could not); alternatively, they might go to great 

lengths to show (as CompuServe did back in the 1990s) that their business model is "anything 

goes" and thus they routinely screen out nothing. In that case they might more easily argue they 

should not reasonably be expected to have known about illegality in user-generated content. But 

the easiest thing to do would be to eliminate user-generated content, since that is the source of 

liability risk to the internet platform. 

Even so, Congress might conclude that losing some user-generated content is a small price to pay 

for getting sturdier legal tools against sex trafficking. What is so important about user-generated 

content? Why, even as we strengthen prosecutorial tools to attack sex trafficking, is it necessary 

to protect website operators that are not involved in content creation from liability for content 

created by third party users? 

Ensuring that liability is not shifted from criminals and tortfeasors who create illegal content and 

onto internet platforms is essential to the operation of the modern internet. This principle is the 

foundation supporting sites like Yelp, eBay, Wikipedia, Facebook, Amazon, Twitter, the New 

York Times, and every website that allows user comments, reviews, rankings, editorials, and so 

forth. User-generated content today powers thousands of innovative platforms that offer a range 

of socially useful services. 
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Honorable Marsha Blackburn 

Honorable Michael F. Doyle 

November 30, 2017 

Page 6 

Without the Good Samaritan and liability protection of Section 230, social media platforms 

would be exposed to lawsuits for everything from users' product reviews to book reviews. 

Airbnb could be sued for its users' unfairly negative comments about a rented home. Any 

service that connects buyers and sellers, workers and employers, victims and victims' rights 

groups, or any other community of interested people we can imagine, would assume substantial 

new legal risk if they continued to display user-generated content on their website. 

How widespread is user-generated content? Over 85% of businesses use it. Over 90% of 

consumers find user-generated content helpful in making their purchasing decisions. Without it, 

people hunting for their loved ones at the peak of hurricanes Maria, Irma and Harvey would not 

have been able to use social media to that purpose. The millions of Americans who every day 

rely on "how to" and educational videos (for everything from healthcare to home maintenance to 

pre-K, primary, and secondary education and lifelong learning) would find that many of them 

have suddenly disappeared. 

User generated content is vital to law enforcement and social services. Following this year's 

devastating Mexico earthquake, relief volunteers and rescue workers used online forums to 

match people with supplies and services to victims who needed life-saving help, directing them 

with real-time maps. 

Given that user-generated content is important and worth preserving, is there a way to write a 

law that strengthens prosecutorial tools against sex trafficking, and also keeps today's positive 

incentives in place? There is. 

Protecting the Innocent and Punishing the Guilty 

Throughout the history of the internet, Congress has sought to strike the right balance between 

opportunity and responsibility. Section 230 as originally written, though not always as 

interpreted, is such a balance. The plain language of Section 230 makes clear its deference to 

criminal law. The entirety of federal criminal law enforcement is unaffected by Section 230. So 

is all of state law that is consistent with the policy of Section 230. 

Still, there is not an exemption of state criminal law from Section 230. Why did Congress not 

choose this course? 

First, and most fundamentally, it is because the essential purpose of Section 230 is to preempt 

state law in favor of a uniform federal policy, applicable across the internet, that avoids results 

such as the state court decision in Prodigy. 

Second, it is because the internet is the quintessential vehicle of interstate, and indeed 

international, commerce. Its packet-switched architecture makes it uniquely susceptible to 

multiple sources of conflicting state and local regulation. Even a message from one cubicle to its 
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Honorable Marsha Blackburn 

Honorable Michael F. Doyle 

November 30, 2017 

Page7 

neighbor can be broken up into pieces and routed via servers in different states. Were every state 

free to adopt its own policy concerning when an internet platform will be liable for the criminal 

or tortious conduct of another, not only would compliance become oppressive, but the federal 

policy itself could quickly be undone. All a state would have to do to defeat the federal policy 

would be to place platform liability laws in its criminal code. Section 230 would then become a 

nullity. 

Congress thus intended Section 230 to establish a uniform federal policy, but one that is entirely 

consistent with robust enforcement of state criminal and civil law. 

The key to writing new legislation in this area, then, is to avoid carving out exceptions for 

various state laws, without any means of harmonizing those laws with the federal policy. The 

best way to accomplish this objective is to give prosecutors better legal tools to work with, rather 

than simply carving up Section 230 in piecemeal fashion. 

Specifically, I recommend that Congress and the states establish a new crime specifically 

focused on sex trafficking via website, with the purpose of giving federal and state prosecutors a 

powerful new weapon. State prosecutions of state law crimes with the same clements should be 

expressly authorized. As with the Travel Act, 18 U.S.C. 1952, the predicate offense can be 

defined as engaging in the business of prostitution, which presents prosecutors with fewer 

problems of proof. Sex trafficking, defined to include alternative elements such as a victim who 

is underage or who was subject to coercion, can then provide the basis for an enhanced penalty, 

allowing the criminal litigation to proceed to trial while the requisite facts arc gathered. 

To ensure that civil restitution is available to victims without need of commencing a separate 

follow-on civil proceeding, the new law should provide for a unitary proceeding, with the judge 

in the criminal trial assigned responsibility for overseeing claims for civil restitution immediately 

following the establishment of criminal liability. This will spare victims many months and much 

uncomfortable adversarial process. 

By writing such provisions into the substantive criminal and civil law dealing with sex 

trafficking, lawmakers can avoid the thorny problems created by a single-crime carveout, which 

is the "narrowly targeted" but broadly problematic approach ofHR 1865. 

Section 230 and Sex Trafficking 

The Report of the Senate Permanent Subcommittee on Investigations concerning Backpage.com 

has highlighted the fact that one website, estimated to be responsible for three-quarters of all sex 

trafficking activity in the United States, has thus far been able to operate with seeming impunity 

despite litigation brought by criminal prosecutors and civil plaintiffs. In lawsuits brought in state 

courts, Section 230 has figured as a staple element ofBackpage's defense. 
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It bears repeating in this connection that Section 230 provides no protection for any website, 

user, or other person or business involved even in part in the creation or development of content 

that is tortious or criminal. Moreover, Backpage cannot rely on Section 230 as a shield from 

federal criminal prosecution because, by its express terms, Section 230 has no effect on federal 

criminal law. Section 230(e)(l) clearly states: 

No effect on criminal law -Nothing in this section shall be construed to impair the 

enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 11 0 

(relating to sexual exploitation of children) of title 18, or any other Federal criminal 

statute. 

As this is a matter of black-letter law, your colleague Rep. Wagner, author ofHR 1865, joined 

Rep. Maloney on July 13 of this year in formally stating, "we believe that the U.S. Department 

of Justice already has the tools it needs to bring a strong criminal case against Backpage.com." 

Specifically, Congress recently passed, and President Obama signed, the Stop Advertising 

Victims of Exploitation Act of 2014 (the "SAVE Act"). The express purpose of this new federal 

law enforcement weapon is to clamp down on online marketplaces for the victims of the child 

sex trade and those forced to engage in commercial sex acts against their will. The statute covers 

any internet platform that knowingly distributes advertising for a commercial sex act in a manner 

prohibited under existing federal sex trafficking statutes. Additional federal tools include 18 

U.S.C. § 1592(c)(3), covering facilitation of the promotion of unlawful activity, and 18 U.S.C. § 

2255, providing for add-on civil suits by victims of sex-trafficking. 

Unfortunately, to date no federal prosecution for sex trafficking has yet been brought under the 

federal SAVE Act. If and when a U.S. Attorney brings federal sex-trafficking charges against 

Backpage.com, the prosecution will face no restrictions whatsoever from Section 230. 

Based on the abundant evidence in the Senate Report that Backpage participated in creating and 

developing the sex-trafficking content on its website on multiple occasions, Backpage should not 

be able to use Section 230 as a shield from state prosecution. Section 230, under the caption 

"State Law," plainly states that it shall not "be construed to prevent any State from enforcing any 

State law that is consistent with this section." 

Any state or local criminal prosecution, and any civil suit, may therefore be maintained so long 

as it docs not seek to violate the uniform national policy that internet platforms shall not be held 

liable for third party content created and developed wholly by others. Since no website operator 

who is responsible even in part for creating or developing content can hide behind Section 230, 

neither can Backpage.com. 

For purposes of the following analysis, I will assume the facts as they are presented in the Senate 

Report. These detailed factual allegations about the illegal conduct of Backpage.com, if true, 
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establish not only federal criminal offenses but also state criminal offenses. They also constitute 

a variety of both federal and state civil offenses. 

Backpage, according to the Senate Report, systematically edits advertising for activity that is 

expressly made criminal under both federal and state law. Furthermore, Backpage proactively 

deletes incriminating words from sex ads prior to publication, in order to facilitate this illegal 

business while shielding it from the purview of investigators. Beyond this, Backpage moderators 

have manually deleted incriminating language that the company's automatic filters missed. 

Moreover, Backpage coaches its users on how to post apparently "clean" ads for illegal 

transactions. 

Furthermore, according to the Senate Report, Backpage knows that it facilitates prostitution and 

child sex-trafficking. It knows its website is used for these purposes because it assists users who 

arc involved in sex-trafficking to post customized content for that purpose. Its actions are 

calculated to continue pursuing this business for profit, while evading law enforcement. 

The detailed allegations in the Senate Report include the following: 

Backpage has knowingly concealed evidence of criminality by systematically editing its 

adult ads. "Carl Ferrer, Backpage CEO instructed the company's Operations and Abuse 

Manager to scrub local Backpage ads that South Carolina authorities might review to conceal 

illegal sex-trafficking activity. 'Sex act pies remove ... In South Carolina, we need to remove 

any sex for money language also.' (Sex for money is, of course, illegal prostitution in every 

jurisdiction in the United States, except some Nevada counties.) Significantly, Ferrer did not 

direct employees to reject 'sex for money' ads in South Carolina, but rather to sanitize those ads 

to give them a veneer of lawfulness. Padilla replied to Ferrer that he would 'implement the text 

and pic cleanup in South Carolina only."' 

Backpage coached its users on how to post "clean" ads for illegal transactions. Backpage 

CEO Ferrer wrote, "Could you please clean up the language of your ads before our abuse team 

removes the postings?" Ferrer did not reject the ad for an illegal transaction, but rather sought 

to edit the language in order to facilitate it. 

Backpage deliberately edited ads in order to facilitate prostitution. "Another former 

Backpage moderator, Backpage Employee A, similarly told the Subcommittee that 'everyone' 

knew that the Backpage adult advertisements were for prostitution, adding that '[a]nyone who 

says [they] w[ ere ]n 't, that's bulls hit."' 

Backpage prescribed the language used in ads for prostitution. "Backpage Employee A 

also explained that Backpage wanted everyone to use the term 'escort,' even though the 

individuals placing the ads were clearly prostitutes. According to this moderator, Backpage 
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moderators did not voice concerns about the adult ads for fear oflosing their jobs." 

Backpage moderated content on the site in order to cover up prostitution. "An October 

8, 2010 email [from] a Backpage moderator ... suggested the user was a prostitute. In response, 

Padilla rebuked the moderator: 'Until further notice, DO NOT LEAVE NOTES IN USER 

ACCOUNTS .... Leaving notes on our site that imply that we're aware of prostitution, or in any 

position to define it, is enough to lose your job over. ... If you don't agree with what I'm saying 

completely, you need to find another job." 

This detail from a Washington Post report adds to the picture of Backpage as a highly active 

content creator: 

The documents show that Backpage hired a company in the Philippines to lure 

advertisers- and customers seeking sex-from sites run by its competitors. The 

spreadsheets, emails, audio files and employee manuals were revealed in an unrelated 

legal dispute and provided to the Washington Post. 

Workers in the Philippines call center scoured the Internet for newly listed sex ads, then 

contacted the people who posted them and offered a free ad on Backpage.com, the 

documents show. The contractor's workers even created each new ad so it could be 

activated with one click. 

Workers also created phony sex ads, offering to "Let a young babe show you the way" or 

"Little angel seeks daddy," adding photos of barely clad women and explicit sex patter, 

the documents show. The workers posted the ads on competitors' websites. Then, when a 

potential customer expressed interest, an email directed that person to Backpage.com, 

where they would find authentic ads, spreadsheets used to track the process show. 

. . . [T]he workers in the Philippines either call or email with an offer to post their ad on 

Backpage free of charge, with the ad already created and ready to go . 

. .. Invoices and call sheets indicate Backpage was pushing Avion to get as many new 

listings as possible, generating ads from competing sites including Locanto in Europe, 

Australia and South America, Eurogirlscscort.com, Privategirls.com, PrivatcRomania, 

Gumtree and many others. 

And again, from the Senate Report: 

"[Your team] should stop Failing ads and begin Editing ... As long as your crew is editing and 

not removing the ad entirely, we shouldn't upset too many users. Your crew has permission to 

edit out text violations and images and then approve the ad." 
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Assuming the facts alleged in the Senate Report and in the Washington Post are true, it is 

abundantly clear that Backpage is not a "mere conduit" of content created by others. It has been 

actively involved in modifying content in order to conceal the illegal activity on its site of which 

it is well aware. The company specifically instructed its employees and contractors to edit the 

language of advertisements for prostitution, and to create such ads from whole cloth. It rebuked 

them for suggesting that ads for prostitution be removed. In all of this, Backpage was acting as a 

content creator as that term is defined in Section 230 - thus surrendering any protections from 

state criminal or civil prosecution under Section 230. 

It is well established in the case law that under Section 230, a website "'can be both a service 

provider and a content provider: If it passively displays content that is created entirely by third 

parties, then it is only a service provider with respect to that content. But as to content that it 

creates itself, or is responsible in whole or in part for creating or developing, the website is also a 

content provider."' And once the website becomes a content provider, it loses its Section 230 

protection. As the U.S. Court of Appeals for the Ninth Circuit, ruling en bane, has stated: 

"(Section 230's] grant of immunity applies only if the interactive computer service provider is 

not also an 'infonnation content provider,' which is defined as someone who is 'responsible, in 

whole or in part, for the creation or development of' the offending content."' 

The recent decision of the U.S. Court of Appeals for the First Circuit in Jane Doe No. 1 v. 

Backpage.com LLC came as a blow to efforts to hold Backpage liable to victims of sex 

trafficking. The court in that case rejected federal and state civil sex trafficking claims against 

Backpagc. But the court did so on the ground that the entirety of the lawsuit was based on 

content created by third parties, thus entitling the defendant to Section 230 protection. The court 

held that the record before it expressly did not allege that Backpage contributed to the 

development of the sex trafficking content, even "in part." Instead, the court said, the argument 

that Backpagc was an "information content provider" under Section 230 was "forsworn" in the 

district court and on appea1. 1 

If these facts are properly pleaded, therefore, Backpage will not be able to hide behind Section 

230 protections. 

And indeed, a new complaint has been filed in the case of Doe No. 1 eta/ v. Backpage.com, LLC 

et al. in U.S. District Court in Boston. This complaint expressly references the Senate Report 

findings and contains abundant allegations demonstrating that Backpage participated both in 

creating and developing content. The court is expected to rule on Backpage's motion to dismiss 

1 A similar result was reached in the California case of People v. Ferrer, 16FE024013 (Cal. Superior Ct. Aug. 23, 

2017), and for the same reason. The court specifically noted that prosecutors conceded that Backpage's web ads 

were created not by Backpage but by third parties, It is not clear why Ibis concession was made. The Staff Report of 

the Senate Permanent Subcommittee on Investigations concerning Backpage.com makes clear the opposite is true. 

A properly pleaded indictment should be expected to make at least summary allegations on this point. 
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by the end of the year. If the court follows the clear language of Section 230 as written, the 

complaint will stand. 

State prosecutors and civil attorneys will have the same ample basis to plead these facts that 

vitiate Section 230 protection for Backpage in other venues. There is no reason to think that they 

will not prevail on the law, since based on the facts as presented in the Senate Report, Backpage 

was not just a passive conduit for third-party content, but rather was creating and editing content 

to promote illegal activity and conceal its illegality. The plain language of Section 230 denies 

protection to one who is, even in part, involved in creating or developing content. 

For this reason, the Supreme Court of Washington recently ruled that Section 230 does not 

forestall a lawsuit against Backpage for sex trafficking. In J.S. v. Village Voice Media Holdings, 

LLC, 184 Wash. 2d 95,359 P.3d 714 (2015), the court stated the test of Section 230 exactly 

correctly: Backpage would not be a content creator if it "merely hosted the advertisements." 

But if"Backpage also helped develop the content of those advertisements," then "Backpage is 

not protected by CDA immunity." !d. at 717. 

The court cited the allegations in the complaint that Backpage's "content requirements are 

specifically designed to control the nature and context of those advertisements," so that they can 

be used for "the trafficking of children." Moreover, the complaint alleged that Backpage has a 

"substantial role in creating the content and context of the advertisements on its website." 

Likewise, recent decisions by the Ninth Circuit Court of Appeals have held that a platform's 

"duty to warn" is not protected by Section 230. Decisions by the Seventh Circuit Court of 

Appeals and in the Fourth Circuit have similarly rejected defendants' claims that Section 230 

protects them from suit. 

These cases- including Jane Doe, Ferrer, and J.S. v. Village Voice- are fairly representative of 

the case law regarding Section 230 and Backpage. They illustrate what happens when 

prosecutors properly plead that Backpage is itself a content creator, and what happens when they 

fail to adequately plead this element. I should add, as the author of Section 230, that both the 

majority opinion and the concurrence in J.S. v. Village Voice have perfectly described the 

congressional intent and accurately parsed the plain meaning of the statutory language. If therefiled Jane Doe complaint is upheld in Massachusetts, there will be significant momentum in the 

case law supporting Backpage prosecutions under state law without any interference from 

Section 230. 
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The Unintended Consequences of a Sex Trafficking Carveout 

Both SESTA, recently reported from the Senate Committee on Commerce, Science and 

Transportation, and H.R. 1865, which you are considering in this Subcommittee today, have a 

common feature. They would establish a specific standard within Section 230 that applies only 

to sex trafficking, but not to any other federal or state crimes and civil offenses. 

Today, Section 230 applies equally to all offenses, criminal and civil. By structure and purpose, 

it is panoptic. This is to ensure that the application of Section 230 is as consistent as possible. 

Were the statute to be amended to introduce new elements limited to a specific criminal or civil 

offense, the immediate question for judges and practitioners would be what impact the new 

standard would have on other offenses. It is an established norm of statutory construction that if 

a statute specifics one exception to a general rule, other exceptions or effects are excluded. 

Application of this principle to Section 230, so amended, could lead to the inference that the 

unwelcome judicial interpretations of Section 230 to which the amended law is putatively 

addressed (many of which deal with different crimes and civil offenses) are left untouched. 

Alternatively, a judge might attempt to graft the new standard for the one crime onto other 

criminal and civil offenses; but to do so would require analogy and much creativity because of 

the difference in the substantive offenses. This would essentially require judicial lawmaking and 

lead to uneven results from court to court and across jurisdictions. 

A parallel problem from amending Section 230 "one crime at a time" is that Congress will surely 

be asked to follow up any such amendment with further amendments along the same lines. How 

can it be said that, for example, sex trafficking is worthy of special congressional attention but 

terrorism or murder for hire are not? The list of heinous criminal offenses is long enough -

running at least into the hundreds, as measured only by state laws currently on the books. But 

civil offenses will need to be added as well. This approach is violative of the principles of both 

legislative economy and judicial economy. Congress will be forced repetitively to deal with 

each new exception. Courts will have to attempt to make sense of the growing complexity of the 

statute. The expressio unus est questions that will arise, difficult enough with the first carveout 

from Section 230, will become exponentially more difficult as each new exception is created. 

A further problem is the new thread of case law that will develop under Section 230. The current 

architecture ofHR 1865, the premises of which I fully accept and the ends of which I fully 

support, adds needless complexity and uncertainty to the law by making it more difficult for 

judges to evenly apply what is now a straightforward standard. That is because it would 

establish different rules for sex trafficking than for even very similar offenses such as child 

pornography. The language of the bill does not purport to generally amend Section 230 as it 

applies to all civil and criminal offenses. Because it does not likewise amend Section 230 with 

respect to these thousands of other offenses, it necessarily establishes one set of rules for sex 
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trafficking and a different set of rules for everything else. 

What does this mean? What will judges infer from the decision by Congress to treat sex 

trafficking as a unique subject under Section 230? Will courts attempt to borrow conceptually 

from the new statutory language? Will they seck to import concepts of recklessness or strict 

liability into other interpretive contexts? They might. 

Alternatively, they might do the opposite. Judges might fully credit Congress for lapidary style, 

meaning exactly what it said, no more, no less. In that case, only sex trafficking will be treated 

according to the new standard. The inescapable consequence of this reasoning, unfortunately, 

will be that other crimes and civil offenses will be treated according to the pre-HR 1865 rule that 

Congress did not like as it was applied in sex trafficking cases. We will then witness a profusion 

of decisions reading approximately as follows: "If Congress wishes to rectify this unjust result, 

it will have to amend the law for this offense as it did for sex trafficking." This outcome would 

push decisional law in the direction of less sensitivity to the concerns of crime victims. 

Across the spectrum between these opposite approaches, there arc other reasonable variations 

that judges can be expected to adopt. The only certainty is that, because the approach of a 

single-crime carveout is inherently destabilizing, any number of outcomes is possible. This is 

the opposite of uniformity. 

For the two decades of its existence, Section 230 has applied uniformly to all offenses, civil and 

criminal. Its standards are agnostic concerning the nature of the offense. There is nothing in the 

statute, express or implied, to lead courts in any other direction. This has been important in 

establishing predictability in the law's application. Without predictable outcomes, the law's 

purpose is severely undermined. By introducing a significant new element of unpredictability by 

virtue of its singular treatment of sex trafficking, HR 1865 as presently drafted would change all 

of this. It would make it more likely that courts will reach divergent results, undermining a 

consistent national standard that is coherent and predictable. 

Throwing this curve into the developing Section 230 case law would come at a particularly bad 

time, as courts are just now beginning to rationalize two fundamental aims of the law. Section 

230 means to incentivize standards of good behavior on the internet (through the "Good 

Samaritan" provision), and to preserve robust enforcement of criminal and civil laws against 

wrongdoers (through the designation of internet platforms the create or develop content "in part" 

as content providers themselves). While some courts have viewed these as competing goals and 

so weighed one more heavily than the other, the increasingly common view is that both purposes 

can be upheld. A sampling of the case law will make the point. 

In FTC v. LeadClick Media LLC, 838 F.3d 158 (2d Cir. 2016), the Second Circuit held that 

websitcs linking to "fake news" could be liable for the content notwithstanding Section 230, 
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when it was alleged they were aware of the content and edited some of it. The court ruled that 

even though it was an "interactive computer service," the company was also an "information 

content provider" because of its activities. The court correctly noted that within the statutory 

architecture of Section 230, one is not being "treated as the publisher or speaker of any 

information provided by another information content provider" when it is being treated as a 

content provider itself due to its responsibility "in part" for content creation or development. 

In Vision Security LLC v. X centric Ventures LLC, 2: 13-cv-00926-CW -BCW (D. Utah, August 

27, 2015), a Utah district court denied Section 230 protection to a website whose "very raison 

d'etre" was to encourage negative posts about businesses, and then sell those same businesses a 

program "to counter the offensive content [it] encouraged." It was thus responsible in part for 

developing the third party content, and so fell within the definition of content creator itself. 

Similary, in FTC v. Accusearch Inc., 570 F.3d 1187 (lOth Cir. 2009), the Tenth Circuit held that 

specific encouragement of unlawful content makes one responsible in part for developing that 

content, thereby vitiating Section 230 immunity. 

In eDrop-Of!Chicago LLC v. Burke, No. CV 12-4095 GW (FMOX), 2013 WL 12131186 at *27 

(C.D. Cal. Aug. 9, 2013), the straightforward allegation that a website owner "engaged in the 

selective editing and deletion of Plaintiffs' own posts/comments (or the comments/posts of others 

attempting to add a favorable view of Plaintiffs and their activities)" was sufficient to defeat 

Section 230 immunity. 

Fair Housing Council of San Fernando Valley v. Roommates. com, LLC, 521 F.3d 1157 (9th Cir. 

2008), is a particularly faithful application of the statute. Ruling en bane, the Ninth Circuit held 

that even though illegal content was created by third parties, the website itself was also a content 

creator by reason of its design of the interactive features of the website. 

In Huon v. Denton, 841 F.3d 733 (7th Cir. 2016), the court found that the Gawker website was 

not entitled to Section 230 protection because it allegedly encouraged defamation by its users, 

edited the content of their comments, selected defamatory comments for publication, and 

employed individuals who may have authored some of the comments. 

And in People v. Gourlay, No. 278214, 2009 WL 529216 (Mich. Ct. App. Mar. 3, 2009), a web 

hosting company was held criminally responsible for hosting the illegal content of a minor's 

website, despite a claim of Section 230 immunity. While acknowledging that the website was 

the content creator, the court held that so too was the web hosting company, because its activities 

made it responsible in part for developing the content. 

These decisions, and others like them, stand collectively for the proposition that Section 230 

does not protect bad actors whose violations of criminal or civil law are accomplished by means 
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of the internet. They show that Section 230 need not be a bar to prosecution ofBackpagc.com 

or any other persons or entities who commit any of the thousands of crimes and civil offenses on 

the federal and state statute books. 

These cases also point to reasons that grafting unique provisions for sex trafficking onto Section 

230 itself in the manner of H.R. 1865 as initiaiJy drafted could have major unintended 

consequences. By disrupting decisional law in unpredictable ways and unintentionaiJy but 

effectively altering the Jaw's incentives for innocent web platforms that rely on user-generated 

content, the approach of carving a single crime out of Section 230 creates unnecessary problems. 

There more effective and responsible approach is the direct one: strengthen Jaw enforcement 

against sex traffickers by giving prosecutors and civil plaintiffs better tools. 

Summary and Conclusion: Recommendations for Congressional Action 

1. Amend H.R. 1865 to directly, rather than indirectly, attack the problem of sex trafficking via 

the internet. Eliminate the one-crime carveout from Section 230. Establish a new crime of sex 

trafficking via website, with the purpose of giving federal and state prosecutors a powerful new 

weapon. As with the Travel Act, 18 U.S.C. 1952, the predicate offense can be defined as 

engaging in the business of prostitution, which presents prosecutors with fewer problems of 

proof. Sex trafficking, defined to include alternative elements such as a victim who is underage 

or who was subj cct to coercion, can then provide the basis for an enhanced penalty, allowing the 

criminal litigation to proceed to trial while the requisite facts are gathered. 

State prosecutions of state Jaw crimes with the same elements should be expressly authorized. In 

this way, the specified federal crimes, including sex trafficking via website, can serve as a model 

statute for state legislatures. 

In addition, H.R. 1865 should expressly authorize state Attorneys General to enforce federal antisex trafficking laws. There is ample precedent for this. For example, Congress authorized state 

Attorneys General to prosecute "unfair, deceptive or abusive acts and practices" under the 

Consumer Financial Protection Act provisions of Dodd-Frank. Several state Attorneys General, 

most notably in Illinois, have filed cases in federal court under that authority. Similarly, certain 

federal antitrust statutes may be enforced by the state Attorneys General. It is common for 

DOJ's Antitrust Division and state Attorneys General to jointly file cases. Further examples are 

to be found in the many federal environmental statutes that authorize state Attorneys General, 

along with DOJ, to enforce criminal and civil provisions of federal law. In the same way, state 

Attorneys General can enforce Section 5 of the FTC Act. Section 5 allows enforcement against 

websites that knowingly and actively fail to enforce their own policies. Under "little Section 5," 

state Attorneys General can take enforcement actions directly. 
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To ensure that civil restitution is available to victims without need of commencing a separate 

follow-on civil proceeding, the new law should provide for a unitary proceeding, with the judge 

in the criminal trial assigned responsibility for overseeing claims for civil restitution immediately 

following the establishment of criminal liability. This will spare victims many months and much 

uncomfortable adversarial process. 

Finally, rather than a carveout from Section 230, which as noted would needlessly introduce 

interpretive challenges for judges and create great uncertainty, H.R. 1865 should include a 

contextually appropriate restatement of the law and its original intent. The restatement should be 

of the Section 230 text that applies equally to criminal and civil, federal and state actions. 

By writing all of these provisions into the substantive criminal and civil law dealing with sex 

trafficking, lawmakers can avoid the thorny problems created by a single-crime carveout, which 

is the "narrowly targeted" but broadly problematic approach of H.R. 1865 as first introduced. 

2. Pass a Concurrent Resolution restating the original intent of Congress. Because of the broad 

bipartisan agreement that exists today concerning the proper application of Section 230, 

Congress has a unique opportunity to authoritatively restate the intended purpose of the law. 

When Section 230 came before the House for a floor vote as a freestanding measure, it likewise 

enjoyed nearly unanimous support. For 20 years, the consistent position of the Congress has 

been that Section 230 is meant to incentivize good behavior on the internet and to ensure the 

continued robust enforcement of federal and state criminal laws. It was never intended as a 

shield for criminal activity of any kind. As written, Section 230 already makes clear that one who 

is responsible even in part for the creation or development of illegal web content cannot enjoy 

the protection it offers to innocent platforms. Yet some courts have strayed from this plain 

language, in dicta that would extend the law's immunity for the innocent to those who clearly 

participate in content creation or development. 

The law is premised on the notion that an internet portal or website cannot be expected to read or 

screen vast amounts of user generated content. When web platforms actually do read and screen 

content, however, they arc protected only to the extent they are "Good Samaritans." Certainly a 

platform that not only reads but edits content is, in the langnage of the statute, responsible at 

least in part for the creation or development of that content. Yet a few courts have averred that 

"merely editing," or deciding whether to "alter content," is not enough to make one a content 

provider. Such interpretations arc at odds with the plain language of the statute. 

Taking care to lay out the foundational premises ofScction 230, its legislative history, its careful 

language, and its stated purposes, a concurrent resolution can underscore the purpose of the Jaw 

to deny protection to internet platforms even partly complicit in the creation or development of 

illegal content. Given the strong support for this interpretation in both the House and Senate, it 

should pass both chambers with overwhelming margins. Such an authoritative statement will 
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help judges struggling with case law that is still under development, as well as state and local 

prosecutors and civil plaintiffs who have every right to proceed with their cases under existing 

law. 

Congress should remind the courts of what Section 230 already says: No website operator who 

is responsible even in part for creating or developing illegal content - including but not limited to 

the promotion of sex-trafficking can hide behind Section 230. 

3. Call on U.S. DoJ to bring criminal cases against known bad actors. As noted, Section 230 

has no application to federal sex trafficking prosecutions. Individual congressional 

representatives have already called on the Department of Justice to act to address the problems of 

sex trafficking via the internet. Congress should act in concert, demonstrating the massive 

bipartisan support for federal enforcement actions in this area, by initiating a bipartisan letter 

from all Members to the Attorney General and responsible officials at the Department of Justice. 

Every interested committee should be encouraged to participate in this effort, in the Senate as 

well as the House. 

4. Use the power of the purse. The Appropriations Committees in both chambers can usc 

language in appropriations bills to ensure the Department of Justice is attending to enforcement 

in this area. 

5. Engage internationally. The scourge of sex-trafficking websites is not limited to jurisdictions 

within the United States. The prevalence of such notorious websites as Locanto, 

Eurogirlsescort.com, Privategirls.com, PrivateRomania, and Gumtree State, located in Europe, 

Australia and South America, make it essential that our national government coordinate with 

allies around the world in cooperative cross-border enforcement. Lacking an international base 

of operations, state Attorneys General are typically unable to bring actions against extraterritorial bad actors. The Department of Justice is in the best position to move against such 

sites. This committee and the full Congress should encourage Justice to use its full power and its 

international relationships with law enforcement abroad to attack the problem of online sex 

trafficking at its roots, both within and outside the United States. 

6. File amicus brieft to stress congressional intent in Section 230. As prosecutors and civil 

plaintiffs continue to bring cases before federal and state appellate courts, they could benefit 

from commentary, legal arguments, and evidence of Congressional intent provided in the form of 

amicus curiae briefs. By filing an amicus brief, Congress can assist courts in applying Section 

230 as written and as intended. This approach can bring benefits both in the short term, hy 

achieving positive results in individual cases, and in the long term by clearly establishing the 

rights of prosecutors and plaintiffs to move against bad actors. 
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7. Create a joint federal-state Strike Force and a joint strategic plan with state AGs. Congress 

should insist that federal and state law enforcement work together on putting criminal sex 

traffickers in jail. DoJ's Criminal Division Child Exploitation and Obscenity Section (CEOS) 

should appoint all interested state Attorneys General to a joint state-federal Strike Force. 

Together they should develop a plan to maximize their joint resources and authorities, and 

implement it swiftly. 

As part of this joint action, DoJ should use its power to appoint participating state Attorneys 

General as "Special Attorneys" under 28 U.S.C. §543. The authority of the Attorney General to 

appoint "Special Attorneys" dates to 1966. (The statutory authority was most recently amended 

in 201 0.) The internal Department of Justice authority appears in the United States Attorneys 

Manual (US AM) at USAM §3-2-200. The authority is very broad, and the terms of the 

appointment arc entirely negotiable. In this way, every state Attorney General who wishes to do 

so can exercise the full authority not only of his or her state law, but also federal law. As Section 

230 has no application to federal criminal law, any theoretical arguments about its application to 

a given state prosecution will immediately evaporate. 

There is precedent for this approach. The U.S. Department of Justice has long appointed state 

and local prosecutors as uncompensated "Special Assistant United States Attorneys" (SAUSAs), 

using its statutory authority. These appointments have included collaborative federal-state work 

on matters such as reducing the supply of illegal drugs in the United States. The counter 

narcotics collaboration has extended to investigating and prosecuting priority national and 

international drug trafficking groups and providing sound legal, strategic and policy guidance in 

support of that end. Through this joint federal-state approach, the federal government has 

assisted the states with policy advice and support, drawing on its unique resources including 

intelligence and international enforcement relationships. 

The Justice Department has also appointed state and local prosecutors as SAUSAs to prosecute 

violent crimes under the Organized Crime Drug Enforcement Task Forces (OCDETF) and High 

Intensity Drug Trafficking Areas (HIDTA) programs. In these cases, the Special Attorneys 

would typically be compensated by their employer- either the state Attorney General or a state 

or county District Attorney. They would be given the same authority to prosecute cases in 

federal court as any other federal prosecutor. Currently, U.S. Attorneys across the country as 

well as various decision units at DOJ rely upon SAUSAs to handle these types of crimes today. 

Finally, as part of its mandate under the Strike Force umbrella, the Department of Justice should 

be asked to examine the language of pending bills to amend Section 230 and report back to the 

appropriate Congressional committees. Such an analysis will help this and other committees in 

Congress avoid unforeseen consequences in the application of federal and state criminal laws in 

other areas, while ensuring that any new statutory language does not unintentionally incentivize 

private litigants to sue small e-commcrcc businesses over matters having nothing to do with the 
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bill's stated purposes- thereby banning innovation and making U.S. e-commerce less 

competitive. 

In each of these areas, NetChoice stands ready to help. 

Chris Cox 

Outside Counsel, NetChoice 
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