U.S. GOVERNMENT PUBLISHING OFFICE

32–353 WASHINGTON : 2018

ONLINE SEX TRAFFICKING AND THE 

COMMUNICATIONS DECENCY ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

HOMELAND SECURITY, AND INVESTIGATIONS 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

OCTOBER 3, 2017 

Serial No. 115–43 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 


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COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DESANTIS, Florida 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

THEODORE E. DEUTCH, Florida 

LUIS V. GUTIE ́ RREZ, Illinois 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

DAVID CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 

SHELLEY HUSBAND, Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, HOMELAND SECURITY AND INVESTIGATIONS

TREY GOWDY, South Carolina, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

JIM SENSENBRENNER, JR., Wisconsin 

STEVE CHABOT, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MIKE JOHNSON, Louisiana 

SHEILA JACKSON LEE, Texas 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM JEFFRIES, New York 

TED LIEU, California 

JAMIE RASKIN, Maryland 


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C O N T E N T S 

OCTOBER 3, 2017 

OPENING STATEMENTS 

PAGE 

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

The Honorable John Conyers, Jr., Michigan, Ranking Member, Committee 

on the Judiciary ...................................................................................................

The Honorable F. James Sensenbrenner, Wisconsin, Chairman, Subcommittee 

on Immigration and Border Security, Committee on the Judiciary ................

The Honorable Zoe Lofgren, California, Ranking Member, Subcommittee on 

Immigration and Border Security, Committee on the Judiciary ......................

WITNESSES 

The Honorable Chris Cox, Outside Counsel, NetChoice 

Oral Statement ................................................................................................. 6 

Mr. Jeff Kosseff, Assistant Professor, United States Naval Academy 

Oral Statement ................................................................................................. 8 

Ms. Mary G. Leary, Professor of Law, Catholic University Columbus School 

of Law 

Oral Statement ................................................................................................. 9 

Mr. Evan Engstrom, Executive Director, Engine 

Oral Statement ................................................................................................. 11 


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ONLINE SEX TRAFFICKING AND THE 

COMMUNICATIONS DECENCY ACT 

TUESDAY, OCTOBER 3, 2017 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON CRIME, TERRORISM, HOMELAND SECURITY, 

AND INVESTIGATIONS

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The subcommittee met, pursuant to call, at 10:04 a.m., in Room 

2141, Rayburn House Office Building, Hon. Steve Chabot presiding. 

Present: Representatives Chabot, Poe, Roby, Johnson of Louisiana, Rutherford, Jackson Lee, Conyers, Deutch, Bass, Jeffries, 

Lieu, and Raskin. 

Staff Present: Margaret Barr, Counsel; Scott Johnson, Professional Staff Member; Mauri Gray, Minority Detailee to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations; Joe Graupensperger, Minority Chief Counsel, Subcommittee 

on Crime, Terrorism, Homeland Security, and Investigations; 

Monalisa Dugue, Minority Deputy Chief Counsel, Subcommittee on 

Crime, Terrorism, Homeland Security, and Investigations; and 

Veronica Eligan, Minority Professional Staff Member. 

Mr. CHABOT. Good morning. The Subcommittee on Crime, Terrorism, Homeland Security, and Investigations will come to order. 

I’m, by the way, not Congressman Sensenbrenner. I’m Steve 

Chabot. Mr. Sensenbrenner was unable to be here with us this 

morning, so I’m filling in for at least the early part of this hearing, 

and then I have another obligation I have to meet. 

And, without objection, the chair is authorized to declare recesses 

of the subcommittee at any time. 

We welcome everyone to today’s hearing on the ‘‘Online Sex Trafficking and the Communications Decency Act.’’ And I now recognize 

myself for an opening statement. 

The internet has been one of the greatest innovations in history. 

It has brought tremendous economic and social benefits to humankind. Nearly any transaction we once had to do in a brick-and-mortar setting we can now accomplish with a few clicks of a mouse in 

the comfort of our own homes. It is undeniable that for all of us 

it has made life easier. 

Unfortunately, the internet has also become a stomping ground 

for criminals, who can use the anonymity of the web to mask their 

illicit activities and avoid detection by law enforcement. It has 


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made their lives easier as well. This is especially true in the realm 

of sex trafficking, one of the most horrific, insidious crimes you can 

imagine. 

Thanks to a group of committed, passionate professionals and 

brave victims, the problem of sex trafficking on the internet is now 

receiving the attention it merits. We are all now well aware of the 

reprehensible and blatantly criminal conduct of the executives at 

Backpage.com. Because young victims have come forward to share 

their stories, we are aware of the harm caused by these types of 

websites, which are not only a venue for sex traffickers to sell 

young women but also materially contribute to this illicit conduct. 

Backpage.com’s conduct also shed light on websites that are 

using the Communications Decency Act to shield themselves from 

liability for their illegal activities, something Congress never intended. Because of their aggressive litigation tactics, Congress 

must now revisit the Communications Decency Act to determine 

whether courts are interpreting the language of the statute as intended and whether amendments are necessary to hold accountable 

these websites that have allowed with impunity young people to be 

sold online. 

That is why we are here today. Questions have emerged from 

cases at both the State and Federal level involving a variety of factual circumstances and varying interpretations by courts considering the breadth of the Communications Decency immunity provision. It appears Backpage.com was able to use the provision not 

only as a shield in avoiding civil liability but also as a sword in 

challenging State laws seeking to pass laws to stop Backpage from 

facilitating human trafficking. 

Today, we welcome a panel that is well versed in the case law 

surrounding the interpretation of CDA 230 by both State and Federal courts. We look forward to hearing their thoughts on this subject and their ideas to ensure these websites are held accountable. 

I would now like to yield to the ranking member for the purpose 

of her opening statement. 

Ms. JACKSON LEE. Mr. Chairman, thank you so very much. And 

I am very grateful for the opportunity for this very important hearing with the very important guests that we have and wish to acknowledge the author of this legislation, Congresswoman Wagner. 

Before I start with my brief statement, I would like to in this Judiciary Committee make mention of the tragedy and travesty and 

horror of terrorism, domestic terrorism, of the incident in Las 

Vegas and offer my prayers and my support for those wounded and 

my prayers for the families of those who have lost their lives and 

believe that this committee is one of the most important committees in the wheel of justice and would hope, before a short order, 

legislation of Mr. Thompson, Mr. King of New York will be put forward and that we recognize that weapons of war must be regulated. That is what we’re here to talk about today, maybe in another forum. And so I am hoping that the consciousness of bipartisanship, the removal of one’s clutch in the hands of special interests, that we may come together in order to save lives. 

So I thank you, Mr. Chairman. As a senior member of the Judiciary Committee and a lifelong advocate of the First Amendment and 

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ficking, I welcome this hearing to discuss this very important issue 

of ‘‘Online Sex Trafficking and the Communications Decency Act.’’ 

This hearing extends far beyond any proposed legislation because 

we hope to address the pervasive physical and psychological damage of sex trafficking more broadly and how best to navigate the 

online space for accountability while ensuring that we do not employ—and undermine justice for all. 

As a member of the Homeland Security Committee, I was the 

first member of that committee and maybe the first Member to 

hold a human trafficking hearing in her own district. Houston is 

the epicenter for sex trafficking, human trafficking in all forms. 

And we listened to those women who years ago were called prostitutes, who have been victims of sex trafficking and human trafficking. We did it in my home territory, and Members of Congress, 

both bipartisan, were there to hear and to discuss ways of moving 

forward. 

Trafficking in persons is an inconceivable, callous, brutal crime 

that unquestionably deserves the Nation’s utmost attention. It is 

particularly difficult to see the victimization of the very young who 

are sold or tricked into becoming victims of human trafficking. 

Sex trafficking, whether online or not, is an abhorrent and inhumane poison that has seeped its claws into the fabric of our society 

and one we must eradicate. It is a modern-day slavery that exists 

throughout the United States and globally, and I am committed to 

ensuring that vicious perpetrators are brought to justice. 

I have spent a great deal of my time as ranking member of the 

Crime Subcommittee working and advocating on behalf of victims, 

all of whom I see as survivors. I understand deeply the profound 

harm caused by crime, whether it is domestic violence, child labor, 

sex exploitation. I continue to speak the truth in this space and 

seek however I can to find ways that will provide safety, healing, 

and justice in order for our survivors to take charge of their lives 

moving forward. 

Survivors, I hear you. J.S., M.A., and all the young women and 

young men labeled as Jane and John Doe sold into the criminal 

and financial enterprise of sex exploitation, I see you and heard 

your stories loud and clear, and we will all say, ‘‘We are Jane Doe.’’ 

Nacole, Kubiiki, and others and all of the parents and families 

of those survivors, I feel your pain and heard your cries. I heard 

what it was like, not knowing where they were or whether they 

were alive. 

Nacole, you said you will never be the same family again. 

Kubiiki, you asked, if it was our daughters, what would we do. 

We all hear you and will continue to listen to you as long as we 

can look for solutions to this devastating problem. 

Your fight is not futile, as exhibited on September 23rd, 2015, in 

Washington State Supreme Court’s decision to move forward with 

your case against Backpage. Statistics indicates that the majority 

of our young children that are trafficked online were done so on 

Backpage, which is now facing pending litigation. 

When this sort of crime is committed against one child, it is committed against all of our children. And we are Members of Congress, and we must move forward in helping. As ranking member 

of the Crime Subcommittee, I’m infuriated and, thus, committed to 


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finding ways to collaboratively work with the chairman, my colleagues, and experts to address the problem. 

As someone who strongly believes in the First Amendment, I am 

also committed to addressing this problem in a prudent and constitutional manner. That’s why I’ve successfully amended H.R. 

4660, the Commerce, Justice, and Science Appropriations, providing $500,000 to strengthen the ability of State and local law enforcement to identify, apprehend, and prosecute domestic child traffickers, while requiring the Attorney General to make available 

training and education that will empower them to gain the cooperation and active assistance of victims of human trafficking who 

would otherwise refuse to cooperate. 

Again, I submit an amendment in the H.R. 4800, Agriculture Appropriations, which makes clear that the Secretary of Agriculture 

and other Federal agency heads may provide assistance and benefits to victims of trafficking as permitted under 22 U.S.C. 7105, of 

the Victims of Trafficking and Violence Prevention Act of 2000. 

Germane to this discussion is what we do at the onset when we 

rescue our innocent children lost in their web of sex exploitation. 

I’ve responded by introducing H.R. 5238, the Securing the Assistance of Victims of Exploitation, which makes clear that benefits 

should not be denied even if a person is not documented. 

During the internet’s infancy, Congress thought it necessary to 

enact legislation to protect its ability to function. This legislation— 

I hope that we will be able to ask the tough questions and we’ll 

get good, tough answers in this hearing. Given the internet’s significant role in recruitment of victims and facilitation of sex trafficking, the dialogue must also seek to clarify Congress’ intent with 

respect to section 230. 

The next question is, how do we hold accountable the true bad 

actors? And that is what we should be addressing today. And how 

do we continue to enhance our ability to communicate? 

So I look forward to the witnesses’ testimony. 

Mr. Chairman, I would like to offer into the record a story—a 

movie about online sex trafficking might actually get laws 

changed—‘‘I am Jane Doe.’’ I’d like to submit that into the record, 

with unanimous consent. 

Mr. CHABOT. Without objection, so ordered. 

Ms. JACKSON LEE. And as I conclude, Mr. Chairman, let me indicate to the witnesses, I will look forward to hearing your testimony. 

My city is devastated by Hurricane Harvey, and if I have to leave, 

it will be going to a meeting dealing with the recovery of my constituents. And I thank you all so very much. 

I do want to welcome my dear friend, former Member and former 

chairman of the Homeland Security Committee, the Honorable 

Chris Cox. It good to see you again, along with all of the other witnesses. 

I yield back, Mr. Chairman. 

Mr. CHABOT. The gentlelady yields back. 

Without objection, other members’ opening statements will be 

made part of the record. 

We have a very distinguished panel today. I’ll begin by swearing 

in our witnesses before introducing them. 

So if you would all please stand for a moment. 


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Do you swear that the testimony you are about to give before 

this committee is the truth, the whole truth, and nothing but the 

truth, so help you God? 

For the record, let it reflect that the witnesses responded in the 

affirmative. 

And you can now please be a seated. 

And I would like to introduce the panel. 

Our first witness will be Mr. Chris Cox. Mr. Cox served for 17 

years as a Member of the House of Representatives and has had 

a distinguished career in public service. In addition to his tenure 

here in Congress, Mr. Cox has served as Senior Associate Counsel 

to President Reagan and as the Chairman of the Securities and Exchange Commission. 

We welcome you this morning, Chris. 

Our second witness is Professor Jeff Kosseff. Professor Kosseff is 

an assistant professor at the United States Naval Academy’s Cyber 

Science Department. His research focuses on cybersecurity evidentiary issues, public-private cybersecurity partnerships, 

cybercrime, cyber warfare law, and the intersection of cybersecurity 

and free speech. 

And we welcome you here, Professor. 

Our third witness is Professor Mary Leary of Catholic University’s Columbus School of Law. Ms. Leary is a former prosecutor 

and attorney in the nonprofit sector, focusing on crimes against 

women and children, a former policy consultant and deputy director for the Office of Legal Counsel at the National Center for Missing and Exploited Children, and the former director of the National 

Center for Prosecution of Child Abuse. 

And we welcome you here, Professor. 

And our fourth witness is Mr. Evan Engstrom. Mr. Engstrom is 

the executive director of Engine, the policy advocacy group and research foundation focused on tech entrepreneurship. Prior to joining Engine, Mr. Engstrom worked as a copyright and intellectual 

property attorney. He is a graduate of the University of Wisconsin, 

Madison, and Harvard Law School. 

And we welcome you here as well, Mr. Engstrom. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety, and I would ask that each witness summarize his or her testimony in 5 minutes or less. 

To help you stay within that, we have a lighting system. The 

green light will remain on for 4 minutes. The yellow light will come 

on for a minute. And then the red will come on, and that is letting 

you know that it is time to wrap up. And we will hold ourselves 

within the same 5-minute rule that we hold you to. 

And if there is no further business, we will hear from our first 

witness. 

Mr. Cox, you’re recognized for 5 minutes. 


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TESTIMONY OF THE HONORABLE CHRIS COX, OUTSIDE COUNSEL, NETCHOICE; JEFF KOSSEFF, ASSISTANT PROFESSOR, 

UNITED STATES NAVAL ACADEMY; MARY G. LEARY, PROFESSOR OF LAW, CATHOLIC UNIVERSITY COLUMBUS 

SCHOOL OF LAW; AND EVAN ENGSTROM, EXECUTIVE DIRECTOR, ENGINE 

TESTIMONY OF THE HONORABLE CHRIS COX 

Mr. COX. Thank you very much. I very much appreciate the kind 

introduction. And I want to apologize at the outset for those of you 

who perhaps were familiar with my old voice. I now have paralyzed 

vocal cords. So you’ve heard about the sound of one hand clapping; 

this is the sound of one vocal cord vibrating. Thank you for the opportunity to testify on behalf of NetChoice. 

Those of us who were here in 1995 and 1996 well remember the 

debate over pornography on the internet that gave rise to the Communications Decency Act. At the time, wayward court decisions 

threatened the future of the internet. A web portal had done the 

good deed of screening some of its user-generated content, and it 

was held responsible for screening all of it. Under that unfortunate 

rule, the good deed of at least trying to keep the internet free from 

objectionable material would’ve been punished. 

The bill that I wrote to eliminate this perverse incentive was cosponsored by our colleague Ron Wyden, and it eventually became 

section 230 of the CDA in 1996. 

Looking across the intervening two decades of judicial interpretations of section 230, we can see that the law has contributed to the 

successful development of the internet by providing the legal foundation for user-generated content that today is shared not just 

among millions, as was the case at the time, but billions of people. 

The remarkable accomplishments of Wikipedia, to take one example, which has long since outstripped even the Encyclopedia Britannica for the depth and the breadth of its coverage, is just one 

marvel of the 21st century that we daily take for granted as we use 

it without charge. 

Wikimedia, the Wikimedia Foundation that operates Wikipedia, 

is a very small organization, and it relies on voluntary contributions. If it were subject to lawsuits for the contributions and comments of its volunteers and its users, it couldn’t sustain itself, and 

it would cease to exist as a valuable, free resource for every American. 

The fundamental objective of section 230 has always been to 

incentivize website operators to keep the internet free of objectionable material. The law achieves this by protecting them when in 

good faith they become involved in content creation for the purpose 

of keeping objectionable material off of their sites or editing content 

created by others or taking it down altogether in order to remove 

offensive material. To this extent, the law says they will not be 

treated as publishers. 

At the same time, section 230 makes clear that becoming involved in content creation for any other purpose eliminates any 

protection from suit. And that’s true even if the involvement and 

content creation is only partial. And it is true even if the internet 

platform itself does not create the content but only develops it. And 


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it is true even when the platform is only partially responsible for 

the development. It still loses section 230 protection. 

The inclusion of this clear language in section 230 was deliberate. It was intended to ensure that both criminal and civil statutes would continue to be vigorously enforced. And that’s why section 230 expressly states that Federal criminal law is entirely unaffected by its provisions and that neither is there any effect on the 

enforcement of State law, whether civil or criminal, provided the 

State laws are enforced consistently with the uniform national policy expressed in section 230. 

The uniform national policy applies equally to all civil and criminal cases. It’s important that there be a uniform national policy because the internet is the quintessential vehicle of interstate commerce. Its packet-switched architecture makes it uniquely susceptible to multiple sources of conflicting State and local regulation. 

Even an email from this hearing room to the Capitol can be broken 

up into pieces and routed through servers in different States. 

If every State were free to adopt its own policy governing when 

an internet platform will be liable for criminal or tortious conduct—that is to say, for the criminal and tortious conduct of another—not only would compliance become oppressive, but the Federal policy itself would quickly become undone. 

Nonetheless, there is a move afoot to amend section 230 in ways 

that could sow chaos. In the bills that have been offered to amend 

section 230, the uniform national policy would be abandoned in 

favor of a new rule within section 230 itself for sex trafficking. For 

the tens of thousands of other State and Federal crimes, no compatible modification would be made. It goes without saying that 

many of these crimes are just as heinous, just as horrible as sex 

trafficking. Many of these crimes, such as murder for hire or terrorism, are often accomplished using the internet, just as sex trafficking is. 

A judge confronting the anomaly of a new standard in section 

230 that applies uniquely to sex trafficking would be forced to conclude that Congress intended to make it easier to prosecute this 

one offense, but this would necessarily mean it would correlatively 

be more difficult to prosecute all the other offenses. 

The result would be to strengthen the precedential force of those 

court decisions most hostile to the prosecution of internet crime. 

That is not likely the intention of most of those who are sponsoring 

bills to change section 230. It’s an undesirable result that could 

easily be avoided through better legal craftsmanship. 

One focus—— 

Mr. CHABOT. Excuse me. 

Mr. COX [continuing]. In the current discussion of—— 

Mr. CHABOT. If you could kind of wrap up, we’re—— 

Mr. COX. Yes, of course. 

Mr. CHABOT. Thank you very much. 

Mr. COX. One focus in the current discussion of how to combat 

internet sex trafficking is the report of Senator Portman’s investigative subcommittee laying out extensive factual allegations demonstrating that Backpage.com was directly involved in creating 

content and editing it. Assuming these facts are true, they will 


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amply support both Federal and State prosecutions without any interference from section 230. 

I have laid out in my written testimony six suggestions for this 

committee with its special jurisdiction and focus on crime and for 

Congress as a whole that include the enactment of strengthening 

provisions to existing criminal law in 18 U.S.C. section 1952. That 

draft legislation is attached to my testimony. 

I look forward, Mr. Chairman, to further questions. 

Mr. CHABOT. Thank you very much. 

Professor Kosseff, you are recognized for 5 minutes. 

TESTIMONY OF JEFF KOSSEFF 

Mr. KOSSEFF. Congressman Chabot, Ranking Member Jackson 

Lee, and members of the subcommittee, thank you very much for 

the opportunity to testify about section 230. 

My name is Jeff Kosseff, and I’m an assistant professor at the 

U.S. Naval Academy Cyber Science Department. The views that I 

express today are only my own and do not represent those of the 

Naval Academy, Department of Navy, Department of Defense, or 

any other party. 

I commend the subcommittee for taking a close and serious look 

at section 230. No other section of the United States Code has had 

a greater impact on the development of the internet. Because of 

section 230, the internet and the United States is the epitome of 

everything that we love and that we hate about unconstrained free 

speech. 

Both the House and the Senate are considering proposals to 

amend 230 to address online sex trafficking. I’m not here to support or oppose any particular bill; rather, I hope to provide you 

with information that I’ve gathered and conclusions that I’ve drawn 

after spending more than a year researching and writing a book 

about the history of section 230. 

Our legal system must have strong criminal penalties and civil 

remedies to deter not only the act of sex trafficking but also the 

knowing advertisement of sex trafficking by online platforms, period. I hope that Congress agrees on a solution that imposes severe 

penalties on bad actors—and we need to be very clear, there are 

some very bad actors—without chilling legal online speech. And I 

think this is something we can do. 

Understanding 230’s history is critical, and my written testimony 

more fully explains the mechanics and origins of the law. 

Congress passed section 230 in 1996 because the legal precedents 

in early cases against online platforms created a bizarre rule that 

online services might actually increase their liability by moderating 

content. Congress also wanted to limit government regulations of 

the emerging internet. By passing 230, Congress allowed companies to create business models around user content. It is simply not 

a coincidence that many of the most successful internet platforms 

in the world are based in the United States. 

Initially, my book was titled ‘‘The 26 Words That Changed the 

Internet.’’ After spending months immersed in section 230’s history, I decided that did not capture the full impact of the statute. 

The book is now titled ‘‘The 26 Words That Created the Internet.’’ 


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In its current form, section 230 does not provide absolute immunity to online platforms. All Federal criminal laws are explicitly exempt from 230, and platforms are not immune from civil actions or 

State criminal prosecutions that arise from content that the platforms created. Indeed, if the Senate report and Washington Post 

coverage about Backpage is true, I believe that the site never 

should have been immune under existing section 230. 

If Congress decides to amend section 230 to address online sex 

trafficking, it should do so in a manner that severely punished bad 

actors while minimizing broader harms to legal online speech. A 

section 230 exception should target platforms that knowingly advertise sex trafficking. Now, defining ‘‘knowingly’’ will be important, and it also will be difficult, as there is not very much precedent in this context, primarily because we’ve had 230 on the books 

for 20 years. Imposing liability on reckless or negligent conduct 

could raise concerns about burdens on speech, so we need to strike 

the proper balance there. 

Also, States should not subject platforms to a patchwork of 50 

different laws. Rather, if Congress creates a section 230 exception, 

it should craft a national standard providing companies with clear 

and certain rules for compliance. 

Addressing the liability of public-facing platforms is one component of a much broader problem. Sex trafficking, like other online 

crimes, often occurs on the dark web, out of the reach of law enforcement. So, in addition to focusing on 230, I hope that Congress 

continues to examine crimes in these dark corners of the internet. 

I also hope the technology sector, nonprofits, and law enforcement 

work together to fight online sex trafficking, as they successfully 

have done for child pornography. 

To be clear, this debate does not present us with a binary choice. 

Changing section 230 would not cause the internet to disappear, 

but the magnitude of any harm to online speech could vary tremendously depending on the precise wording of any exceptions. 

Now, I’ve long been an enthusiastic supporter of section 230’s 

free speech protections. I’m a former journalist who’s faced down 

defamation threats from executives and politicians. And as a lawyer before I joined the Naval Academy, I advised media companies 

on user content liability. I remain convinced that the statute is essential to preserving the open internet that Americans know today. 

But after spending a year researching a book about 230, my support for the statute is tempered by the very real and tragic harms 

suffered by some victims who cannot get their day in court. The 

challenge for all of us will be to combat these terrible acts, such 

as online sex trafficking, while preserving the free internet that 

section 230 has made possible. And I believe we can do that. 

Thank you. 

Mr. CHABOT. Thank you very much. 

Professor Leary, you are recognized for 5 minutes. 

TESTIMONY OF MARY G. LEARY 

Ms. LEARY. Thank you, Congressman Chabot, Ranking Member 

Jackson Lee, and members of the committee, for convening this 

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bating it posed by the current interpretation of the Communications Decency Act. It’s an honor to be with you today. 

Starting in the year 2000, the United States became a leader 

when it passed the Trafficking Victims Protection Act and its subsequent five reauthorizations. It was with this legislation that this 

Congress identified the crime of sex trafficking and understood it 

to be a vast and complex criminal activity. 

And Congress designed a comprehensive, multidisciplinary approach to combat it on all fronts, for Congress understood then, as 

it understands now, that human trafficking crosses all boundaries, 

preys on thousands of our most vulnerable citizens—children and 

vulnerable adults—and that such an epidemic victimization must 

be met by an equally comprehensive response that disrupts the 

business model, deters the traffickers and those who partner with 

them, and makes it a form of victimization not tolerated in our society. 

The legislation from 2000 and the reauthorizations have many 

components but three main ones at issue today. First, it obviously 

requires strong criminal laws. Secondly, however, it also has civil 

liability components which allow victims and survivors to hold 

their traffickers accountable in civil courts and give them access to 

justice. And, third, it recognizes the essential role of State and local 

law enforcement and prosecutors in early identification and prosecution of sex trafficking. 

Yet, despite this comprehensive and forward-looking approach, 

today sex trafficking is on the rise. And one of the main reasons 

is the misinterpretation of the well-intended section 230. This act 

was designed to provide limited immunity for the good samaritans 

Mr. Cox referenced. It’s been turned on its head, as Mr. Chabot has 

pointed out, because of aggressive litigation tactics. And courts now 

have interpreted it, even if we all feel differently, they’ve interpreted it as de facto absolute immunity. 

As a result of that, sex trafficking has flourished on the unregulated internet, with the lure of low-cost, high-profit, no-risk has 

brought traffickers to the web. And they have flocked there to find 

unscrupulous service companies, not just Backpage but many others, who are more than willing to facilitate the sale of people in the 

public square. And why wouldn’t they, because they can do so with 

impunity when we look at how this has played out in the courts. 

The results? Well, the numbers are really staggering, and they 

are in my written testimony. Let me just draw your attention to 

a few of them. 

From 2010 and 2015, the National Center for Missing and Exploited Children experienced an 846-percent increase in reports of 

child sex trafficking. Other research has found that 63 percent of 

human trafficking victims interviewed in that study were advertised online. Just 2 weeks ago, former Member and California Attorney General Becerra testified that in his office almost every sextrafficking case involved online marketing. 

And it’s unfortunate that today we don’t have a survivor on this 

panel who could share with you, beyond the numbers, the impact 

of what he or she has experienced. And while I can’t do that, let 

me share with you an observation made by Erik Bauer, who is an 

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vived CDA immunity, and that is a civil claim in Washington 

State. 

He talked about one image that he deals with in his litigation. 

And I ask the committee to please forgive any language, but it’s 

important that we’re clear. He talks about the ad, and it says—the 

text of the ad is, quote, ‘‘Ass up, face down. Come see Sheila. $80 

special.’’ And then Mr. Bauer notes that Sheila is in seventh grade. 

More recently, courts have joined people like Mr. Bauer, survivors of sex trafficking, and attorneys general in the chorus that 

asks Congress to please amend section 230. One court said, just 

this summer, after it dismissed a similar case to the one I just described, ‘‘If and until Congress seeks to amend the immunity law, 

the broad range of section 230 even applies to those alleged to support exploitation from human trafficking.’’ 

The solution to this problem is to listen to the survivors, to the 

victims, to the States’ attorneys general, all 50 of them, who are 

seeking justice and amend the Communications Decency Act. And 

this pending legislation before the House is a narrowly drafted legislation that succeeds in doing so and underscores the civil rights 

action, the important role of local States’ attorneys general and 

prosecutors, as well as strong criminal penalties. 

I look forward to the questions from the committee. 

Mr. CHABOT. Thank you very much. 

Mr. Engstrom, you’re recognized for 5 minutes. 

TESTIMONY OF EVAN ENGSTROM 

Mr. ENGSTROM. Chairman Chabot, Ranking Member Jackson 

Lee, and members of the committee, thank you for inviting me to 

testify. My name is Evan Engstrom. I’m the executive director of 

Engine, a nonprofit advocacy and research organization that works 

with government and a community of startups throughout the 

country to develop public policies that foster innovation, entrepreneurship, and job creation. 

I’m grateful for the opportunity to testify on such an important 

and difficult topic, and I appreciate the hard work that Congress 

is doing to fight sex trafficking. I cannot claim to be an expert on 

combating trafficking, and I certainly cannot ever comprehend the 

horrors that trafficking victims have endured. We must hold those 

who facilitate these crimes, like Backpage.com, fully responsible. 

Trafficking victims and survivors deserve justice. 

In my capacity as an advocate for innovators and entrepreneurs, 

the most important thing I can say at the outset of this hearing 

is that the community of startups we work with is fully committed 

to finding solutions to end online sex trafficking through a combination of industry initiatives and government action. 

We have concerns about the unforeseen consequences of recent 

legislative efforts to address this critical issue. Nonetheless, we are 

eager to work with this committee to craft policies that will help 

identify and prosecute sex traffickers. And we have been actively 

involved, working with Members of Congress on specific legislative 

language to accomplish this goal. 

Today, I would like to address three key messages. 

First, as you have heard countless times, we simply would not 

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tion 230 of the Communications Decency Act. Section 230 guarantees that a user-generated content website will not face companyending liability whenever a bad actor says something illegal on its 

platform. This protection is what drives innovation in this area. 

For startups, there are three things that section 230 does particularly well. 230 establishes a uniform regulatory regime rather 

that a 50-State patchwork. 230 provides a check on abusive litigation. And perhaps most importantly, 230 empowers platforms to 

proactively monitor for objectionable content. 

It’s also worth reiterating what section 230 does not do. 230 does 

not give platforms immunity for evaluations of Federal criminal 

law, and 230 does not protect a platform from liability if it develops 

illegal content. 

Section 230 is as valuable today as it was when it was enacted 

in 1996. In just the past 5 years, we have seen startups reinvent 

the way we share memories, raise funds, find a spouse, buy a 

home, and so much more. All of these companies rely on user-generated content, and section 230 has facilitated their growth in multiple ways. 

Second, tech companies large and small have frequently 

partnered with law enforcement, the National Center for Missing 

and Exploited Children, and anti-trafficking groups to develop a 

range of technologies that help combat trafficking and support victims. Industry has worked to come up with best practices for finding trafficking content and has well-established policies for directing personnel to promptly investigate and disable access to such 

content. We intend to continue this necessary work. 

However, it is not possible for a platform that hosts a significant 

amount of user-generated content to fully remediate all illegal content on its site or know with certainty whether it is being used for 

trafficking activity. Proposals to address online trafficking should 

consider these realities and not impose ruinous burdens on well-intentioned startups. Critically, we do not want to discourage platforms from voluntarily taking on the task of policing their sites for 

trafficking content. 

Third, we have concerns that recent proposals to change existing 

law in order to combat online sex trafficking may have unintended 

and unnecessary negative consequences for honest platforms. While 

we share the underlying goal of combating trafficking, our written 

testimony details our concerns with the Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act and offers 

suggestions about how to make these bills function more effectively. We are happy to discuss details with any Member who is interested. 

In conclusion, section 230’s protections are critical, because, despite the best efforts of honest, law-abiding startups, it is not possible to fully stop bad actors from doing bad things online. But that 

doesn’t mean we shouldn’t try. This is, after all, what startups do: 

fix what needs fixing and find new solutions to difficult problems. 

Changes to existing law should be carefully tailored to address 

the problem of sex trafficking in the most effective manner possible 

while minimizing the negative impact on the broader internet ecosystem of law-abiding startups and users. We believe this is an 


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achievable goal, and we hope to work together to combat trafficking 

and provide justice for the victims of this terrible crime. 

Thank you. 

Mr. CHABOT. Thank you very much. 

We’ll now proceed to the members’ time to ask questions. 

And, Mr. Cox, I’ll begin with you, if I can, here. 

It’s my understanding States have been impeded from pursuing 

criminal charges against Backpage. And there seems to be this belief that CDA 230 fully preempts State criminal laws. But that very 

obviously goes against the plain language of the statute. 

Could you explain why States haven’t been able to reach 

Backpage on trafficking charges? Have they been able to prosecute 

under any other charges? Or any comments that you could—that 

you could shed some light on that? 

Mr. COX. Certainly. 

First of all, as you point out, the statute’s pretty clear. And the 

cases that—and this is not, I don’t think, dominant in the case law, 

but the cases that I object to is when the authors of the statute 

and, I think, most of Congress is befuddled by, because this was 

something that everyone in Congress more or less supported. These 

cases that are in the minority overlook the fact that, to use 

Backpage as an example, that Backpage is alleged to have participated in the creation of content. 

In the Senate report, in the Senate investigative report that 

Chairman Portman was responsible for producing, there is lurid 

evidence laid out of how extensively Backpage was, in fact, involved in the creation of advertising, in the editing of advertising. 

Even the purpose of the edits was to masquerade it so that it 

would be shielded from law enforcement. 

This amply goes beyond what the statute says is necessary to be 

involved in content creation. The definition of a content creator in 

the law makes it plain that, if you participate only in part—you 

don’t need to be the content creator, but if you in part develop the 

content that somebody else created, that’s enough, and you lose 

your section 230 protection. 

So why didn’t this work in the most recent case that we’re all 

aware of in the First Circuit? And the reason it didn’t is laid out 

in the opinion. The judge says that not only were these allegations 

not made in the district court and on appeal but that the litigants 

foreswore this theory of the case. And the same was true in a recent California case decided in August. 

So I would like to be personally of assistance to attorneys general 

in pleading their cases, and I think this Congress could as well. Because if you base the case on the fact that these people are really— 

I mean, these websites, some of them are ongoing criminal enterprises. They’re in the business of this. And it should be a relatively 

straightforward matter to make allegations that, not only do they 

know what they’re doing, but what they are doing is directly what 

the statute says vitiates any protection from liability. 

Mr. CHABOT. Thanks very much. 

And I’ve been advised that our timing devices have gone down, 

so I have a minute and 48 seconds left in my 5 minutes. 

So, Professor Kosseff, I’ll go to you next. Do you think prosecutors will be able to gather the quantum of evidence they have on 


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Backpage for the websites that continue in this business, with respect to the knowledge element? Could they hold them accountable 

under the RICO liability, for instance, promoting prostitution? If 

you could comment on that, it’d be appreciated. 

Mr. KOSSEFF. I do think that is a possibility. My experience is 

more on the civil law side, but I do think that there are other avenues. But, I mean, I will say that particularly the Sacramento 

court decision did give me pause. They did not have the full record 

before them that was from the Senate report and the Washington 

Post reporting, and I think that may have altered the outcome. 

Mr. CHABOT. Thank you very much. 

Professor Leary, I’ll go to you next. How does H.R. 1865 clarify 

the rights of local prosecutors to prosecute sex-trafficking cases? Do 

you think there’s a risk of a patchwork of State policies? What are 

your thoughts there? 

Ms. LEARY. Thank you, Congressman Chabot. 

The bill itself very clearly just exempts from immunity State 

criminal prosecutions. Again, a request made by all 50 United 

States attorneys—excuse me, all 50 attorneys general from every 

State, both now and several years ago. 

And we don’t have a patchwork, because, as it’s defined in the 

legislation, it mirrors the Federal definition of sex trafficking and 

child exploitation. As such, it has narrowed it to not be inclusive 

of other regulations that wouldn’t fit under that definition. 

And, as this body well knows, this is a common technique that 

we see in child pornography legislation, as well as our trafficking 

legislation, to narrow State powers. I mean, Attorney General 

Becerra, to speak to your earlier question, Congressman, said his 

hands are tied. 

And if I could just make one other point to my able colleague to 

the right, Mr. Cox, make no mistake about it, this isn’t a minority 

of cases. When we look at just sex-trafficking cases in a CDA defense, the defense has always won, and it has always won except 

in one State-level civil case. 

Mr. CHABOT. Thank you very much. 

My time has expired. The ranking member, the gentlelady from 

Texas, Ms. Jackson Lee, is recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you very much. 

And I want to take my 5 minutes to get to all of you, so I appreciate your brevity in your answers. 

Congressman Cox, you worked with now-Senator Wyden on the 

230 in the Communications Decency Act, I would say without any 

humor, in the early stages of the internet. I think you’ll smile on 

that. You have history that is important. 

But could you just explain—I’m sure there was a sense of the potential of bad actors and acts occurring. Could you explain how you 

tried to strike the balance? 

Mr. COX. Yes. The simple approach of 230 is to protect the innocent and punish the guilty. So there is absolutely no effect whatsoever, for starters, on Federal criminal law. 

And this is important because the SAVE Act, which this Congress, you know, very recently enacted and was signed by President Obama, gives new sex-trafficking prosecutorial tools to the 

Department of Justice that are in no way affected by section 230, 


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by the words of section 230, has no impact on it whatsoever, and 

yet not a single prosecution has been brought under this new law. 

Ms. JACKSON LEE. Thank you. 

Professor Kosseff and maybe Professor Leary at the same time, 

Backpage really smeared the value of the internet and what it does 

and, as well, damaged and threatened lives, in terms of fostering 

some of these very bad acts. 

I think the glaring horror of their acts was to teach how to block 

law enforcement, whether it was Federal or whether it was State. 

Tell me how we pierce that. 

And I think, Professor Kosseff, you came to this with a balance— 

and Professor Leary—for the value of the internet of saving lives. 

These are young girls, boys, LGBTQ persons that are victimized, 

and we don’t know who has lost their life in the context of this. 

Can you pierce that veil, Professor Kosseff? 

Mr. KOSSEFF. Yes, absolutely. I think—and, again, I had mentioned the Senate report and the Washington Post article. And, 

again, assuming that all of the facts are true, it leaves no doubt 

in my mind that this was not just publishing third-party content 

as a conduit in any way that would fall under section 230 as intended or under the 20 years of case law that we have right now. 

So I think there are two ways. First, you could just try to clarify 

the purpose of 230. That might not work. And I think the problem 

with all of the civil cases—again, I will limit it to the civil cases— 

is, frankly, both the pleading requirements under Iqbal and 

Twombly as well as the lack of discovery on these issues that are 

relevant to 230. 

So that’s why, I mean, a reasonable, narrowly tailored exception 

might be necessary. Because I think it’s very hard for us to—even 

if you have a company like Backpage, to be able to overcome these 

general pleading standards that plaintiffs in all sorts of cases really very much dislike. 

Ms. JACKSON LEE. Just very quickly to you, do you think the civil 

case was decided correctly in Backpage? And the criminal case— 

the civil case, was that decided correctly on Backpage? 

Mr. KOSSEFF. Based on the information we know now, no. 

Ms. JACKSON LEE. The criminal case, which is—— 

Mr. KOSSEFF. No. 

Mr. JACKSON LEE. Thank you. 

Professor Leary, if you want to, how do we pierce that veil? 

Ms. LEARY. Well, two comments. 

If I could pick up on your last question first, Congressman Jackson Lee, it’s important that we now have all this information, 

thanks to The Washington Post and a 20-month Senate investigation, which was actively thwarted by Backpage. But let’s keep in 

mind what we’re talking about: an immunity provision. Immunity 

is not an affirmative defense. Immunity stops State prosecutors, it 

stops victims and survivors at the courthouse door. They cannot 

even get into the courthouse. 

So that’s the first veil that needs to be pierced, is they would 

never be able to engage in discovery to get this kind of information. 

They don’t have at their disposal a 20-month investigation with 

subpoena power, et cetera, from the United States Senate. 


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Secondly, how do we pierce this veil? My colleague Mr. Cox is absolutely correct, and this Congress has created some really terrific 

laws, and many States have copied them. All 50 States have trafficking laws. We can’t get to those excellent laws if we can’t get 

through the CDA. This body of law that has been created is the obstacle between litigants and prosecutors and those excellent laws. 

So we have to resolve that problem. 

Ms. JACKSON LEE. Let me quickly go to you, Mr. Engstrom, the 

last person here. There is a question about patchwork—there’s a 

question about the patchwork of different laws. And there’s a question about, as I said, saving lives and also what stands out as the 

First Amendment. You work on this all the time. And so, crafting 

a response, you would see it in what form? 

Mr. ENGSTROM. Well, as far as the patchwork issue is concerned, 

I think we can clarify the language to address that concern. Professor Leary mentioned that, you know, in the bill, it is meant to 

mirror the Federal standard to ensure that States can’t pass a variety of laws that have different rules, have different penalties, that 

may or may not be practical. If it does indeed mirror the Federal 

law, that obviates that problem. We don’t read the statute that 

way, and I think that’s a real concern. 

Secondly, how do we address the problem? We want to make 

sure that the law doesn’t disincentivize platforms from doing the 

right thing by having an ambiguous knowledge provision that 

might hold them responsible if they, you know, are proactively 

looking for content, find something, maybe they don’t know what 

it is, and now they’re in a position to say, ‘‘Well, if I’m going to be 

held liable for this, then maybe we shouldn’t do this type of policing.’’ I think we can craft the language in a way that obviates that 

concern, and we’re happy to work on it. 

Ms. JACKSON LEE. Thank you. 

I just want to acknowledge that Mr. Raskin, Mr. Lieu, Ms. Bass, 

Mr. Deutch, and Mr. Conyers were present at the hearing today. 

And thank you. 

With that, I thank the witnesses. And this is a tough issue that 

we’re all going to work on. 

And I yield back. Thank you. 

Mr. JOHNSON of Louisiana [presiding]. Thank you. 

The gentlelady yields back. I will recognize myself for 5 minutes. 

Mr. Cox, a question for you. Are we missing the forest for the 

trees here? Why not focus on prosecuting the websites that can be 

considered content providers for knowing facilitation of prostitution, which seems to be more readily provable as an offense, and 

why not increase criminal exposure there? Do you have any 

thoughts on that? 

Mr. COX. I think you’re absolutely right, that, first of all, we can 

use the Federal tools that Congress recently provided—as I mentioned, the SAVE Act. You know, there is a great deal of emotion 

that’s brought to this. There’s a lot of energy. You know, the country is ready to move on this. And yet here is the Federal Government, with all these tools, and not one single prosecution has been 

brought by the Department of Justice anywhere in the United 

States on sex trafficking using the SAVE Act, which was recently 

signed into law. 


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I’ve proposed additional legislation that’s attached to my testimony. In the Kennedy administration, the Attorney General, Bobby 

Kennedy, decided that State governments and State attorneys general needed help in going after organized crime that crossed State 

borders and so on, and we got the Travel Act. And the Travel Act 

expressly covers prostitution. What it doesn’t expressly cover is sex 

trafficking. But prostitution and sex trafficking are obviously closely related. 

By amending the Travel Act in ways that I have proposed and 

by including penalties in there that can go up to life in prison, I 

think we can make it pretty clear that we’re serious about this, and 

we can bring prosecutions that are, once completed, for victims to 

get restitution so that they don’t have to file their own civil suits. 

I’ve attached, as I say, a proposed draft of such legislation as an 

exhibit to my testimony. 

Mr. JOHNSON of Louisiana. Thank you for that. 

Mr. Kosseff, do you agree with Mr. Cox that there may be potential adverse effects of putting carve-outs into the CDA 230? And 

could a carve-out be preferable in some ways? 

Mr. KOSSEFF. I do. I’ve thought a lot about what the carve-outs 

would look like and not just for sex trafficking but for other emerging threats that are very serious, such as terrorists’ use of social 

media. And who knows what the next threat will be 5 years down 

the road. 

So I think that’s why we have to be very careful about how we 

view these carve-outs. That’s not to say we can’t do it, but I think 

that it does set a precedent. And, very well, it might be necessary, 

but we just do have to be aware of that risk. 

Mr. JOHNSON of Louisiana. Mr. Engstrom, what kinds of changes 

would you suggest to any pending legislation to assure startup 

companies are sufficiently protected and allowed to grow? 

Mr. ENGSTROM. So I think the first one we talked about a little 

bit before. And I thank you for the question. It’s clarifying what 

types of laws State authorities can bring. We want to ensure that 

there aren’t conflicting standards. We want to make sure that laws 

that are passed don’t create impossible burdens or disrupt how the 

internet functions. 

It’s not a hypothetical threat. We’ve seen in, I think, two dozen 

States proposals to have mandated anti-pornography filters on devices. It doesn’t exist. It can’t work. That bill was designed to prevent human trafficking, so it could potentially fit under a reading 

of the statute. I think we can clarify that. 

The second piece is how we define ‘‘knowledge.’’ We don’t want 

to sweep in people that don’t actually know of what’s happening on 

their sites. And we want to encourage them to take the positive, 

proactive steps of identifying and remediating this type of content. 

So I think you need to clarify to make sure it’s going after the 

bad actors who have awareness of this activity but aren’t responding to it, as opposed to those startups that, you know, are doing 

the right thing, trying to do the right thing, but by virtue, you 

know, of how this content looks online, maybe not, you know, visibly, immediately recognizable as such, it puts them in a position 

where they don’t know how to act. 


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Mr. JOHNSON of Louisiana. Is there a template or a model already in Federal statutes on that ‘‘knowledge’’ aspect? 

Mr. ENGSTROM. Yeah, so you can look at mirrors in other types 

of the law. So, for example, in, like, the copyright context, the 

DMCA, you have a notice-and-takedown provision, where there’s a 

clear way to provide a platform with knowledge and clear guidelines on how they’re meant to respond. In the child exploitation 

context, you have very clear guidelines on who you’re supposed to 

notify. 

I think, you know, these laws have language, particularly in 

copyright content, that has been the source of considerable litigation over what ‘‘knowledge’’ means. So I think we need to take 

those lessons and apply them here and make sure we’re crafting 

‘‘knowledge’’ in a very clear way that gets at bad actors and not 

honest startups. 

Mr. JOHNSON of Louisiana. Thank you for that. 

I’m out of time. I recognize Congresswoman Bass for 5 minutes. 

I’m sorry. She’s not here. Who’s next? 

Mr. Raskin for 5 minutes. 

Oh, Conyers—— 

Mr. RASKIN. Mr. Chair, thank you very much. 

Mr. JOHNSON of Louisiana. I’m sorry. You’ve got to yield to Mr. 

Conyers. Of course. 

Mr. RASKIN. I will happily yield to the ranking member. 

Mr. JOHNSON of Louisiana. I’m sorry. 

Mr. CONYERS. Thank you, Mr. Chairman and my friend. 

Chris Cox, good to see you again. What do you believe will happen if we enact legislation that allows States to prosecute online 

facilitators of online sex trafficking using different standards? 

Mr. COX. I think it depends entirely on how it’s accomplished. I 

think it’s a good idea to continue adding prosecutorial tools. I’ve 

suggested one incremental way to do it in my own testimony. There 

are other suggestions, as well. 

But, as Professor Kosseff has just noted, it’s not just that we 

have a uniform national policy for the reasons that the internet is 

uniquely susceptible to multiple and conflicting regulations; it’s 

also because it applies section 230 to all civil and criminal offenses 

in the United States, Federal and State. 

And so, if we start to have within section 230 itself substantive 

standards that are different for one crime versus another, it’s going 

to beg for relief for other crimes one at a time. And there are necessarily going to be—until we get to over 4,000 Federal crimes, 

there are necessarily going to be different standards. And that’s 

going to cause judges great distress in trying to figure out what in 

the hell Congress meant by saying there’s a different standard now 

for one crime than another. 

There’s one standard in section 230 that applies to all offenses, 

and it’s really important that it be a clear standard. The standard 

is that, if you participate in the creation of content or the development of content and if you do it only in part, then you lose any of 

the protections of section 230. And that’s how we parse the guilty 

and the innocent. 

I can’t think of a better rule. I can think of some better court decisions than a couple that I’ve read. But courts don’t all have this 


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wrong, by any means. And I think what we need to do is recognize 

that the standard in the law in 230 is the right standard and then 

use all of our tools, including hortatory tools such as amicus curiae 

briefs and concurrent resolutions from Congress restating the intent of this law, to make sure that we help the courts to get it 

right. 

Mr. CONYERS. Mr. Engstrom, I’m sure you—well, what do you believe—or do you believe that either of the proposed bills will help 

fight sex trafficking online? 

Mr. ENGSTROM. Thank you for the question, Congressman. I 

think you get at a great point. 

I think, yes, they will address—they will devote more resources 

to online trafficking. With that said, I think we can craft those bills 

in a way that they are just as effective at addressing online trafficking but don’t implicate these unintended consequences. 

And we proposed language that would help narrow that and provide a clearer pathway for honest, law-abiding startups to know 

what their obligations are. So, yes, we are, you know, fully open 

to working with this committee, with other Members of Congress 

on how to make that more effective. 

Mr. CONYERS. Thank you. 

Do you believe a national standard for criminal prosecutions of 

online sex-trafficking facilitators like Backpage.com is necessary? 

Mr. ENGSTROM. I think having a national standard is necessary. 

Again, it ensures compliance. It makes it easier for startups to 

know their obligations. It prevents conflicting laws. 

I think the existing standard can and should be used to go after 

bad actors like Backpage. So, yes, I think, you know, an important 

priority for us in any change is ensuring uniformity and ensuring 

clarity. And, again, I think the national standard is a great way 

to accomplish that. 

Mr. CONYERS. Thank you. 

Professor Kosseff, could you describe the harm to online speech 

that you expect to see if either H.R. 1865 or SESTA become law? 

Mr. KOSSEFF. So what I’d like to do is talk about not just one 

specific bill but just any bill that would have any carve-outs for sex 

trafficking rather than supporting or opposing a particular bill. 

What I’ll say is it really comes down to both, as was mentioned, 

having some sort of national standard so that websites and other 

platforms don’t have to look at 50 different State laws to make sure 

they’re compliant but also whether it is, as was discussed, a ‘‘knowingly’’ standard, a ‘‘reckless’’ standard, ‘‘negligent’’ standard. 

My real concern here is we do not have case law adequate in the 

user-generated context, because for 20 years we haven’t had to look 

at this. So if I were a lawyer representing a website and there was 

a very low standard for what would trigger liability, I would probably tell them, don’t allow user-generated content even if they have 

nothing to do with sex trafficking, unless they’re able to monitor. 

So I think we just need to be precise and go after the bad actors. 

And I think it’s possible; you just have to craft it really carefully. 

Mr. CONYERS. Thank you so much. 

I yield back. 

Mr. JOHNSON of Louisiana. Thank you. 


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The gentleman yields back. And I recognize Judge Poe for 5 minutes. 

Mr. POE. Thank you, Chairman. 

Thank you all for being here. 

Sex trafficking, to me, is the national problem dealing with 

crime. We should focus this—this issue, I think, is so big that we 

should spend a lot of time going after these bad guys, and then 

they should do a lot of time in the do-right hotel, as I called it as 

a judge. 

I have no sympathy and I am sure most people have no sympathy for these slave owners and slave traders and especially the 

slave buyers, the customers. And I think we’re all here today to try 

to fix this problem the best we can. We don’t want to make it worse 

or encourage it; we want to try to fix it. 

We have a standard for taking down child pornography websites, 

and I think it’s working. It seems to me, why can’t we apply that 

protocol that is used to take down sites that deal with human sex 

trafficking? Is that not realistic? 

I’ll ask Chris—Mr. Cox. 

Is that not a realistic idea? 

Mr. COX. It’s a splendid idea. And it’s consistent with not only 

Federal but all 50 State laws, I am certain. 

As you describe it, a website that is focused on this activity is 

manifestly in the business of doing these things. And so there is 

no question that it’s involved in the creation of the content, and, 

thus, it has no protection under section 230 and ought not to have 

any. 

But, you know, we need to go back and read the statute, because 

the statute is very, very clear in this respect. I’m here as one of 

the coauthors of the legislation, but, honestly, you don’t need to listen to me about the legislative history. You know, some judges 

don’t like legislative history. It’s too abstruse. They want to stick 

to the black letter of the statute. Well, then read the damn statute, 

because it is so clear. And if we enforce the statute the way it’s 

written, we wouldn’t be having this discussion. 

Mr. POE. Do you want to comment, Mr. Engstrom? 

Mr. ENGSTROM. Yes. Thank you so much for the question. You 

raise an important point. And I think I want to raise sort of a technical distinction or at least a clarification that I think is relevant. 

In the context of child exploitation images, it’s very easy to say, 

this is always illegal. If you have possession of that image, there’s 

no context in which that’s legal. And so startups and larger platforms do employ tools—there’s a popular one that Microsoft has, 

PhotoDNA, that matches against an existing database of these images, so they know, if I see this, I can remove it. 

In the context of other types of speech, it’s a little more difficult 

because—— 

Mr. POE. Because they talk in code. 

Mr. ENGSTROM. They talk in code. There’s no backlog of posts 

that you can compare this stuff to. Now, we’re making progress, as 

I understand it, but there’s more work to be done, and it’s not as 

easy—— 

Mr. POE. So what’s the answer? What is the answer to get these 

websites off the internet? 


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Mr. ENGSTROM. I think the answer—— 

Mr. POE. I mean, Mrs. Wagner’s got her solution, and, you know, 

there’s over 140, 150 Members on her bill. 

What do you think the answer is to doing this? 

Mr. ENGSTROM. So I think the answer for taking down webpages 

like Backpage is to devote as many resources as we possibly can, 

criminal law enforcement resources, to taking them down. And I 

think we have tools in the law to do it. I think we need to make 

sure we have the gumption and the funding and the interest necessary to get that done. 

The ancillary question is, what do we do about platforms that 

aren’t trying to facilitate that? If it pops up on their website and 

they’re unaware of it, or it’s a tiny fraction of their user base that 

this happens to. I think what we want to do is empower them to 

take action in a way that doesn’t implicate liability that could discourage them from doing that. 

Mr. POE. Professor Leary, you used to be a prosecutor, didn’t 

you? 

Ms. LEARY. Yes, sir. I did. 

Thank you for the question. And I think the analogy to child pornography is a very apt one, in this regard: We have made progress 

with regard to child pornography and child sexual exploitation primarily because we have not tied the hands of local prosecutors. So 

it is a full-court press on child sexual exploitation images. State 

prosecutors, attorneys general, local law enforcement are all empowered. Victims are allowed to sue in Federal and State court. 

And multiple pressure points have yielded some results. The same 

thing should be true here in child sexual exploitation. 

If I could just comment on one other point, this idea that there’s 

somehow a confusing standard or the unwitting internet provider 

would get caught. Let’s be clear: If you are criminally charged or 

if you are sued, the party has to have standing or there has to be 

a specific case. So a general— none of the proposed legislation has 

a general knowledge that trafficking takes place on your platform 

would implicate you. It is knowledge as to the specific act alleged. 

And the terms ‘‘knowledge’’ and ‘‘reckless,’’ which are part of the 

House bill, those are clearly defined in the criminal law. There is 

not an ambiguity as to what they mean. And certainly we could 

wordsmith about the actual statutes, but there’s not an ambiguity. 

Thank you. 

Mr. POE. Thank you, Mr. Chairman. 

Mr. JOHNSON of Louisiana. Thank you. 

The chair recognizes Mr. Deutch of Florida for 5 minutes. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

Mr. Chairman, this is a—it’s a really important topic, and I appreciate the hearing today. I’ve been working on sex-trafficking and 

human-trafficking issues with my colleagues, Representatives 

Smith and Trott and Frankel on Foreign Affairs, and others. But 

what makes this so important is that it’s a bipartisan issue. 

But I can’t engage in a conversation about this bipartisan issue 

in the absence of any sort of conversation on the bipartisan issue 

that we need to be having about gun violence. 

And, Mr. Chairman, I—we all were sickened when close to 60 

people were slaughtered in Las Vegas and more than 10 times as 


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many were injured. And this is the Crime Subcommittee. This is 

not just the Crime Subcommittee. It is the Subcommittee on Crime, 

Terrorism, and Homeland Security. This is the place where these 

discussions should start—reasonable discussions, the kind of discussion that we’re having today about sex trafficking. 

But, unfortunately, not only have we not scheduled any hearings, 

we took an affirmative step, not the ranking member and I, but the 

chairman took the affirmative step of actually waiving the jurisdiction of this subcommittee with respect to a piece of legislation that 

would only make things worse. 

And so I ask the question: What is it about the dangerous gun 

agenda that the leadership continues to push forward that prevents 

us from being able to have a serious discussion about how to curb 

gun violence? 

Let me just be clear. The bill that this subcommittee waived jurisdiction on, the Crime Subcommittee, is H.R. 3668. That’s a bill 

that does at least three things. It’s the silencer deregulation act, 

which deregulates silencers, makes it easier to sell silencers across 

State line to more people and without background checks. Anyone 

who watched the horrific video out of Las Vegas could only imagine 

what the case would’ve been if every one of those guns that that 

shooter had had a silencer on it. 

But that’s not all that this committee choose not even to hold a 

hearing on. The bill also contains the armor-piercing bullets deregulation act, legislation that would make it easier to manufacturer, import, and sell armor-piercing bullets that can be used in 

a handgun, armor-piercing bullets that at another time we regularly referred to as ‘‘cop killers.’’ 

And, finally, the piece of legislation that this Crime Subcommittee chose to waive jurisdiction on was what I would refer to 

as the easy gun trafficking act, which makes it more difficult to 

prosecute gun traffickers by giving them defenses when they are 

caught. 

All of them in H.R. 3668. All of them waived so that we could 

get that bill to the House floor as quickly as possible. 

I don’t understand this gun agenda. This is not about the Second 

Amendment. Those three efforts are not about the Second Amendment. I don’t know whose gun agenda it is. I think we should probably be clear about one thing, that I’m not sure who it is in leadership who is most committed to this effort, but I can only imagine 

the pressure that was felt when, as I read just on my way in here, 

the House leadership chose to show a modicum of decency and not 

move forward on these bills this week or next week in light of the 

tragic shooting, I can only imagine the pressure that those who 

made that decision felt by outside groups, by the NRA and others 

whose agenda this is the fundamental part of. 

And so I hope that we have the opportunity to move forward 

with a meaningful discussion. I hope we can acknowledge—I hope 

we have a chance to have a hearing. And at that hearing on that 

bill, we can bring in sheriffs and police chiefs from small towns and 

counties across the country, from Portland, Maine, to Dallas; Rocky 

Mount, North Carolina, to Vallejo, California; Glenwood, Minnesota, to Lagrange, Georgia. The International Association of 

Chiefs of Police, the Major Cities Chiefs Association, all of whom 


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have come out opposed to that, and the Crime Subcommittee would 

not even give them a voice. 

We’ve blocked reasonable debate for too long. After tragedies like 

Las Vegas, I just think that we ought to be able to find ways to 

come together in this bipartisan way. I know that a lot of my colleagues will not share the same views I have on how we prevent 

gun violence, but if we can’t all commit to work together to try to 

eradicate gun violence, then we’re not doing our jobs. 

And I yield back. 

Mr. JOHNSON of Louisiana. The gentleman yields back. 

The chair recognizes Mr. Rutherford for 5 minutes. 

Mr. RUTHERFORD. Thank you, Mr. Chairman. 

First of all, thank you, committee, for being here this morning. 

Mr. Cox, let me ask, in your opinion, have any of the courts gotten this right, in that the way that they have interpreted CDA 230, 

is that consistent with the congressional intent of the statute? 

Mr. COX. Yes, I think that many of the courts have gotten it 

right, and they have done so repeatedly. And in my written testimony, I have laid out many of these cases, which I think more or 

less represent the center of gravity in the case law. 

But it’s important to recognize that the case law is still developing, and there is, you know, scant case law with respect to sex 

trafficking specifically. The standards that are being used have 

been developed in any number of contexts, and they are—in the 

First Circuit case that was recently decided, a sex-trafficking case, 

the precedents that are cited are developed in non-sex-trafficking 

contexts. 

So what are the courts that have gotten this right saying? 

They’re saying that, when we find that a web platform has been 

involved somehow in influencing the content that shows up on that 

website, that they don’t have section 230 protection. 

There’s a case that is quite well-known and has been quite 

foundational in the jurisprudence, decided en banc, in the Ninth 

Circuit Court of Appeals. Roommates.com was the party in that 

case that had been accused of violating essentially civil rights laws 

because they told people that they could find roommates. They 

didn’t tell them exactly what content to supply, but if you wanted 

to say, I want my roommate to be a certain race, you could exclude 

some people and include others and so on. And this was facilitated 

by the design of the website. So the content was provided by users. 

They’re the ones that said, oh, I want a roommate of a certain race. 

But the design that elicited that content was the responsibility of 

the website. 

So there’s kind of a hard case. The Ninth Circuit decided it correctly. They said, section 230 offers no protection for this website. 

That had been a foundational case that has been cited repeatedly 

in subsequent cases and in subsequent contexts. 

The rule is pretty clearly expressed in the law itself. And there 

have been some anomalous decisions where the language is more 

or less dicta but where they say such things as, you know, merely 

editing it doesn’t matter. Well, hell, if you edit it, you’ve read it. 

The paradigm for this law was that there’s so much content 

going through these portals that no one could really be expected to 

read it. But if someone has actually read it and they’ve actually 


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edited it, well, then that paradigm doesn’t apply, and that’s not 

what this law is about. 

And the cases that have repeatedly gotten this correct are, in my 

view, the throw weight of the case law. 

Mr. RUTHERFORD. Thank you. 

Ms. Leary, would you like to comment on that? 

Ms. LEARY. Yes, I would like to comment on the Roommates case. 

If we were to go through the pleadings in all of these sex-trafficking cases, I can tell you, in numerous cases of these, the parties 

have cited to Roommates, and that has been rejected in the sextrafficking context. 

So, while I appreciate the fact that there may be some agreement 

that Roommates is a good standard or something, the fact of the 

matter is that in litigation on the ground the courts have rejected 

this. 

And I would just like to point out, the CDA was created in response to what was perceived by Congress as a bad case, the Prodigy case. And the internet companies and the startups came to 

Congress and said, ‘‘Please fix this.’’ We are in a—— 

Mr. COX. If I may interject, I just need to pierce that bubble, because that’s not how it happened. Literally, no company talked to 

Ron or me or anybody in Congress. We did this on our—this was 

a congressional initiative. I just mention it because it’s an urban 

legend. 

Mr. RUTHERFORD. Okay. Well, let Ms. Leary—— 

Ms. LEARY. I’m happy to hear that. I can only refer to the—well, 

I’m happy to hear that. 

What I would say is that, today, we have a similar situation with 

victims, States’ attorneys general, and advocates saying, ‘‘These 

cases are getting it wrong. Congress, please fix it.’’ And we should 

do so. 

Mr. RUTHERFORD. Thank you. 

And let me close by just saying that, you know, having arrested 

individuals who used this platform to further their criminal enterprise and go meet young children in homes and other places 

throughout our community, I can tell you, when I read, you know, 

H.R. 1865 and it shifts to, you know, knowingly or recklessly publishing that information—look, I’m not concerned about the incidental—something that pops up on a provider’s site that they know 

nothing about. But places like Backpage and others, they know exactly what’s going on, and there is no doubt in anyone’s mind. And 

it’s got to stop. 

Thank you. I yield back. 

Mr. Johnson of Louisiana. Thank you. 

The gentleman yields back. The chair recognizes Mr. Jeffries for 

5 minutes. 

Mr. JEFFRIES. I thank the chair for yielding and for your leadership, as well as the distinguished witnesses for your presence here 

today. 

I think we can all agree on two things: one, that the internet has 

been a tremendous vehicle for growth, innovation, entrepreneurship, providing information to the American people in ways that 

weren’t previously accessible. That is a good thing that should continue to be nurtured and supported. 


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I think we can also agree that the problem of online sex trafficking is a tremendous stain on our society and one that is a 

scourge that should be addressed by any means necessary in order 

to eradicate it, in the context of Backpage.com and beyond. 

And so striking the right balance, it seems to me, is going to be 

the approach that’s necessary here. And we appreciate your 

thoughts in that regard. 

Let me start with Congressman Cox. 

In the context of the Communications Decency Act, in particular, 

section 230, when it was initially enacted, that was at the infancy 

of the internet, correct? 

Mr. COX. Yes, that is correct. 

Mr. JEFFRIES. And, sort of, at that moment in time, you know, 

there were a lot of unanswered questions as to where, you know, 

this new internet phenomenon was going to take us in society but 

a desire on behalf of Congress to allow it to grow and to flourish. 

And I think even in the legislation, the stated policy in section 

230 was to promote the continued development of the internet. Is 

that right? 

Mr. COX. Yes. That’s from the statute. 

Mr. JEFFRIES. And so that was in 1996. Now we’re 20-plus years 

later. And, you know, there’s sort of a body of practicality in terms 

of what the internet is and all of its glorious strengths as well as 

the downside to how it can be abused by others, in this case in the 

context of sex trafficking. 

And so I’m just wondering your thoughts, and then I want to ask 

Professor Leary to respond as well. You know, how do we strike 

that right balance 20-plus years removed from when it was understandable to take a hands-off approach to the extent necessary to 

allow the internet to really grow and develop and expand, but now 

in the context where we clearly have bad actors who are abusing 

the internet, where we don’t want to allow their conduct to be 

shielded, how do we strike that right balance at this moment, given 

the uncertainty and the concerns that we’re not where we should 

be? 

Mr. COX. That’s really an excellent question because, you know, 

20 years is an eternity in the world of technology, and things have 

really changed. And the biggest thing that’s changed since we 

wrote this law is that, in 1995, when we first thought of it, there 

were 20 million, roughly, people with access to the internet and 

now it’s billions. And so, now, the issues that we saw that made 

the internet unique back in the nineties are, you know, as big as 

the broad side of a barn. 

What we noticed in 1995 was the difference between these 

Usenet groups on the internet, as they were called—and there were 

things like CompuServe back then, which were mostly for computer-type people and so on. And then along came AOL. But the 

big difference was that—between, say, a newspaper, where people, 

you know, curate the content and they decide what to publish and 

they read it and edit and write headlines for it and so on, on the 

one hand, and what was going on the internet, on the other, was 

that the internet was putting people together, and people were 

talking directly to each other without intermediation. It was just 


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instant communication by users. And there were literally, at the 

time, millions of such people. 

So we thought, well, you know, this design that they had in the 

CDA, where the FBI is going to look at all these websites and decide, you know, up front what’s good and what isn’t and we’ll take 

care of it that way, that that was just implausible, that there were 

too many communications for any set of human beings to monitor 

in that way. 

And so we came up with a rule that said, all right, then the people that wrote the communications have to have that liability, and 

the people who are trying to monitor it need some protection for 

at least the attempt, because we know they can’t get to it all. That 

was the basis for 230. 

What we now have, of course, is the situation of the 1990s, you 

know, writ large, because now the volume of traffic is even much, 

much greater, and so the need for section 230 is, likewise, much 

greater. 

But there’s something else that’s changed, and that’s the proliferation of websites and the proliferation of what, at the time, 

were just a handful of people, like AOL and so on. I mean, back 

then, you actually got your internet access through these portals. 

Now you’ve got websites that are themselves, according to court decision, getting the protection of section 230. And that’s something 

that was not in focus clearly in the 1990s. 

So what the law needs to do—and this is something that courts 

have to do, because it is so fact-dependent. But what the law has 

to do a good job of is notice that all these websites aren’t the same. 

Some of them are, you know, single-purpose things that do just one 

thing, like sex trafficking. And, on the other hand, some of them 

are, you know, conduits, they’re passthroughs that just have usergenerated content that could be on any topic or what have you and 

where the website itself is not participating in that content creation. 

So there is always going to be the need for judicial interpretation. What we have to ask ourselves is, what’s the right rule that 

we want these courts to apply? And I think we need to double 

down, because we know what the right rule is. We need to make 

sure the courts get it right. 

Mr. JEFFRIES. Thank you. My time unfortunately has expired. 

Mr. JOHNSON of Louisiana. Thank you. 

The gentleman yields back, and the chair recognizes Mrs. Roby 

for 5 minutes. 

Mrs. ROBY. Thank you. 

Thank you all for being here. One of the reasons I wanted to be 

on this committee was to be able to work on this issue. And I think 

we’re all here for the right reasons today. 

At least 37 human-trafficking cases have been reported in my 

home State of Alabama in 2017, according to the National Human 

Trafficking Hotline. I’m briefly going to touch on a human-trafficking case, sex-trafficking case, that occurred in my district in 

southeast Alabama. And of note, based on the reporting at this 

time and information from the Alabama Attorney General’s office, 

this was the first conviction of a human-trafficking/sex-trafficking 

case that went to trial. 


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An underage minor was first picked up in Mississippi and then 

brought to Tennessee and then eventually taken to Alabama. It 

was revealed that this individual had had her picture taken 

against her will. It was placed on online websites to set up arrangements with strangers. The victim told the police that she had 

been held against her will, forced to take drugs and forced to prostitute herself. She was a victim of abuse. 

During the trial of this case, the victim said, ‘‘I was made to 

prostitute myself,’’ was the quote, ‘‘and if I didn’t, it was war.’’ 

It was war. It is war. These are the words of a young victim, a 

child, having to fight to survive to overcome these horrendous circumstances. So I think it’s important to go back to who we’re here 

for, and it’s to be the voice for the victims who can’t fight this war 

on their own. And we all have a responsibility in this and want to 

get it right. 

Professor Leary, I want to go back to the conversation that you 

were having with my colleague, Judge Poe, about the child pornography cases and how that works. And why you said that it was 

working was because States were in a position where they can 

prosecute. 

The Ann Wagner bill allows for that. And I think what I’m trying 

to wrap my mind around, as I sit here and listen to you—and there 

are many different views or concerns being expressed here today. 

But I think my colleague asked the right question: If not the Wagner legislation, then what? What are the other options we have? 

And, Chris, I hear what you’re saying, is there is a law in place 

right now. I think what some of us are grappling with is that, if 

an individual or a group of individuals are using user-content 

websites—and forgive me if I’m not saying the techie words right, 

but—if they’re using that, then what is the answer, if we can’t go 

down this road? 

And so I want Professor Leary to maybe dive a little bit deeper 

as it relates to how it is working with child pornography and then 

allow for some of you others to tell me, if there’s a different solution, what is it. 

And maybe help me understand. I’ve heard by sitting here listening that you talk about there’s so much information, there’s so 

much data. I wouldn’t claim to be able to really appreciate that, in 

terms of what that looks like in real application. But it seems to 

me that, in some of these instances, it’s quite glaring. So if you 

could just expound on that, that would be helpful. 

Ms. LEARY. Thank you for the question. 

And let me be clear. I don’t want to paint a picture that child 

pornography is not a problem in this country. It clearly is a significant problem. I was simply pointing to it as an analogy of a situation where we have a crime that affects the whole country and we 

recognize it’s on the local, Federal, State level, it crosses all borders. So what have we done? We’ve attacked it on all pressure 

points—State, local, civil, federally, criminally, all those ways—and 

that has been effective. 

Mrs. ROBY. So why can’t we do that with sex and human trafficking? That’s what I’m trying to understand. 

Ms. LEARY. And I’m not sure, to answer your question. I think, 

back when 230 was created, there was this concern that the cost 


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would be too much. But there also was not the Trafficking Victims 

Protection Act. In fact, trafficking wasn’t even recognized as a 

crime at that time. So I think that the problem we have is a law 

crafted in 1996 dealing with 2017 problems is creating a struggle. 

So I think revisiting it—and the Wagner bill, for example, does 

try to strike that balance. It doesn’t touch the immunity provision 

for good actors. It defines a term that has previously not been defined in Federal criminal law, the benefits provision, by attaching 

a ‘‘knowing and reckless’’ standard. And it gives effect to what Congress has been trying to do in the Trafficking Victims Protection 

Act, which, again, didn’t exist in 1996. 

Mrs. ROBY. My time has expired, but if I get another 5 minutes, 

I’ll circle back and let others weigh in. We all want to get to the 

right solution here. 

Mr. JOHNSON of Louisiana. Thank you. 

The gentlelady yields back. 

The chair recognizes Mr. Raskin for 5 minutes. 

Mr. RASKIN. Mr. Chairman, thank you very much. 

I want to quickly associate myself with the remarks of Mr. 

Deutch. I concur that, the day after the worst mass shooting, one 

of the worst acts of terror we’ve ever seen in the streets of America, 

that we should be having a hearing about what we can be doing 

in a bipartisan fashion to deal with the continuing epidemic of gun 

violence across the country. 

But, to the matter at hand, which is also extremely important, 

it seems to me that there are several different issues that are implicated in the various bills before us. One of them, of course, is 

the question of what is the legal standard embodied in the current 

law, in 230. And Mr. Cox testifies that that standard is clear, that 

it’s one of knowledge. That is, if an internet provider or user knows 

that content that it’s posting—— 

Mr. COX. If I may interject, that’s not the standard. 

Mr. RASKIN. Oh, it’s not? 

Mr. COX. It’s not a knowledge standard. 

Mr. RASKIN. Well, what is the standard? 

Mr. COX. It’s an objective standard. If the website or the web 

platform or, as the statute describes it, the interactive service is involved, if it is a content creator, if it is involved, in part, in the development of that content, then that person loses the protection. If 

it is not—that is to say, if the content is created wholly by somebody else—then they are protected. 

Mr. RASKIN. But so—OK. Then we’re getting someplace here. 

You’re telling me that, if the website owner is fully aware that content is being placed on there that promotes sex—— 

Mr. COX. No. No. 

Mr. RASKIN. No? 

Mr. COX. No, no, no. So there’s no ‘‘knowledge’’ standard in the 

law. What the law says simply is that—so, in other words, if you 

have evidence that the web platform was involved in creating content, if there is an email from John to Mary and it says, ‘‘Change 

this,’’ or what have you, that’s the sort of thing that takes away 

section 230—— 

Mr. RASKIN. OK. So—all right. Your reading of 230 is that 

there’s absolute immunity that attaches unless it can be shown 


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that the particular website provider or user itself created the content. 

Mr. COX. That’s one way that you lose the protection. But another way is that, in part, you were responsible for that. Somebody 

else created the content, but you got yourself involved. And a third 

way is that—— 

Mr. RASKIN. You mean you participate in the creation of the content. 

Mr. COX. You participate in the creation of it or—there’s another 

alternative in the statute—you participate in the development of it. 

And then, you know, between creation and development, there are 

also two other qualifiers. Even if you only did it in part and somebody else did the majority of it, that, too, vitiates the protection. 

And so, in that Roommates case that I mentioned, you know, 

other people were wholly responsible for creating the content, but 

the influence on the content that the web platform was able to 

have by virtue of its design was enough to vitiate the protections 

of 230. 

Mr. RASKIN. OK. Well, which is really akin to your second point, 

that that’s a form of participation in the content—— 

Mr. COX. Right. 

Mr. RASKIN [continuing]. Is structuring it or guiding it—— 

Mr. COX. Exactly. 

Mr. RASKIN [continuing]. In a particular way. 

Mr. COX. Exactly. 

Mr. RASKIN. Well, let me just start with you, then. Why shouldn’t 

knowledge be enough to withdraw the statutory immunity that’s 

conferred by 230? In other words, if someone has a website and 

they’re perfectly cognizant of the fact that someone is posting content for the purposes of enabling sex trafficking, why shouldn’t it 

be enough, at that point, to allow for exposure, whether it’s from 

a Federal or a State criminal or civil source? Why shouldn’t knowledge be enough? 

Mr. COX. Well, in any action, knowledge is a subjective and factbased test. So you’d have to litigate—— 

Mr. RASKIN. It’s objective and fact-based in the law, right? In 

other words, we believe that we can come to a real conclusion—— 

Mr. COX. Yes, there’s a—— 

Mr. RASKIN [continuing]. As a matter of fact. 

Mr. COX [continuing]. Result. Of course, there’s a result at the 

end. 

Mr. RASKIN. Yeah. 

Mr. COX. The idea is to have a presumption in the law that if 

you involve yourself in some aspect of cleaning up the content on 

your website that you will be protected to that extent and that if 

you involve yourself for any other reason that you will not be. So 

that’s how we—— 

Mr. RASKIN. Okay. Let me—— 

Mr. COX [continuing]. Separate it. 

Mr. RASKIN [continuing]. Come to—Professor, if I could ask you 

this question: Why should—Professor Leary—why should sex trafficking be treated differently from other extreme and heinous 

crimes, like murder for hire or terrorism or going online in order 

to, for example, commit gun violence or a gun massacre? Shouldn’t 


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we have one general standard of culpability that applies, whether 

it’s one of deliberate involvement, which I think Mr. Cox is suggesting, or one of simple knowledge? 

Ms. LEARY. Thank you for the question, Congressman Raskin. 

That’s a real problem. I’ll candidly say that to you. But I think 

that the situation with sex trafficking is so egregious, with—that’s 

the body of cases that we really went into—to the trouble, and that 

is a particular crime that has been exploding on the internet. In 

fact—— 

Mr. RASKIN. But aren’t terrorists using the internet also? 

Ms. LEARY. Oh, they absolutely are, and I’m in no way suggesting that they aren’t. What I’m saying, though, is we have it 

documented through the cases that began since 2010, and this immunity keeps coming up and blocking them. And through the statistics that are tied—the National Center for Missing and Exploited 

Children talks about how that explosion in statistics is tied to the 

online trafficking. We have a unique problem here. 

And while I appreciate the concern articulated by you, I think it’s 

an example of don’t throw out the good for the perfect. If we were 

going back 10 years and we wanted to rethink the CDA, I think 

that would make some sense. But where we are today, statistically, 

every time one of these folks is trafficked, on average, they are 

raped 10 to 20 times a night. So the delay here has real human 

cost. And so covering it outright here for right now makes some 

sense. 

Mr. RASKIN. Do you favor a ‘‘knowledge’’ or a ‘‘recklessness’’ 

standard for the—oh, forgive me. 

Mr. RUTHERFORD [presiding]. The gentleman’s time has expired. 

Mr. RASKIN. I yield back. 

Mr. RUTHERFORD. Thank you. 

However, we will be—with the committee’s approval, we’re going 

to have a second round of questions, if you don’t mind. And I will 

begin. 

And I’d like to ask Professor Kosseff, could H.R. 1865, as written, 

have the unintended consequence such as disincentivizing websites 

to screen objectionable material to begin with so that they don’t 

have that ‘‘knowledge’’ and ‘‘reckless’’—— 

Mr. KOSSEFF. Well, again, not speaking about any specific legislation but just anyability—or any legislation that aims at the very 

real issue of sex trafficking, I think that it depends on how it’s 

crafted. 

So if you do have a ‘‘knowledge’’ standard—and, I mean, frankly, 

what I would really like to have a lot of discussion with law enforcement about is, what happens when a platform gets knowledge 

of a specific act? What can they do? What are the steps? Should 

it be taking it down first, then contacting law enforcement? Contacting law enforcement and then taking it down? So I think those 

are the specific discussions. 

I think that it really could be incredibly effective. I just think we 

need to really get into the particulars of what actually works. And 

Professor Leary might have some thoughts, just based on her time 

in—— 

Mr. RUTHERFORD. And I’d like to hear that, Professor Leary. 


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But I can tell you, coming from a background of law enforcement, 

I would like to see—you know, knowingly, they need to be notified. 

And law enforcement is very aware of these things. We can officially document their occurrence, put the provider on notice that 

that content is on their site. And then we can, within the courts, 

hold them accountable for that ‘‘knowing’’ element. 

Ms. Leary. 

Ms. LEARY. Thank you, Congressman Rutherford. 

One comment on that—and I agree, the ‘‘knowing’’ or the ‘‘’ 

standard accomplish that. Somebody who is unaware of—and it’s 

not a ‘‘should’ve been aware of’’ standard. They have to have actual 

knowledge of the image or actual knowledge of the risk that this 

is trafficking in this context. 

And let’s not divorce ourselves—it’s not just the mens rea sitting 

out there, ‘‘knowing’’ or ‘‘reckless.’’ It’s ‘‘knowing’’ or ‘‘reckless’’ conduct. And I think that’s important. 

I think, to answer your question, Congressman, we can look at 

other industries where they’ve never had immunity. Let’s take the 

hotel industry. There is an industry that, unfortunately, by nature 

of what their business is, there’s going to be trafficking occurring 

there. So they’ve never had immunity, and we haven’t had a slew 

of lawsuits, we haven’t had a slew of cases. 

They have developed best practices to respond to these scenarios 

when things come to their attention. In fact, they’ve been leaders, 

in some ways, in training all their employees to avoid the risk, because they know that if they become aware of this they could be 

held liable. 

I think we would expect to see the same thing in companies that 

are not brick-and-mortar. 

Mr. RUTHERFORD. And as a follow-up to some earlier comments 

about the problem of sex trafficking for minors, 9,000 to 10,000 

cases a year, do you believe that H.R. 1865 will actually result in 

fewer of those cases? 

Ms. LEARY. I think it will result in fewer cases. At least, that is 

my hope. And I think it will because it gets at the companies that, 

right now, are functioning with de facto immunity. 

And why wouldn’t you engage in this behavior? What do criminals want? They want low risk, they want high profit, and they 

want not to get caught. Right now, the way things are set up, that 

is the ecosystem for them. I think this increases risk and, therefore, hopefully, will deter some from engaging in these kind of joint 

ventures. 

Mr. RUTHERFORD. Thank you very much. 

The chair will yield back. 

Mr. Raskin, would you like to—— 

Mr. RASKIN. Please. Thank you, Mr. Chair. 

Mr. RUTHERFORD. You’re recognized for 5 minutes. 

Mr. RASKIN. I appreciate it. 

So, back to the question of what should the standard of culpability be for the providers or users if we want to revoke their immunity. And I think everybody should agree that the immunity 

generally has been a positive thing in terms of the development of 

the internet and the ability of new businesses to grow. And we’re 


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talking about the dark side of that; you know, what has that 

meant. 

So why not follow what the Supreme Court did in New York 

Times v. Sullivan with respect to defamatory speech, saying that 

if—there, remember, The New York Times printed ads which had 

some minor errors in them and then were sued by, you know, some 

of the sheriffs down south, who alleged that they’d been defamed. 

And the Court said that The New York Times, as the publisher 

of the information, could only be held liable if they knew that the 

content was, itself, defamatory or they were reckless as to the existence of the defamatory speech, meaning that they were aware 

that there was a gross risk, an extreme risk that what they were 

about to publish wasn’t true. 

What would be wrong with using that as the right standard? 

And I don’t know, Mr. Cox, whether you want to take the first 

shot at that. 

Mr. COX. Well, I think, as every Member of Congress knows, the 

New York Times v. Sullivan standard is essentially an outcome-determinative standard. It’s extremely difficult to satisfy that standard. And I think that the responsibility standard that’s in section 

230 is a much lighter touch. That is to say, it’s much easier to 

pierce the—— 

Mr. RASKIN. You think it’s easier. 

Mr. COX. Yes, much easier than the New York Times against 

Sullivan standard, because if you take a look at—again, back to the 

Roommates case, if you take a look at what went on there, the 

Roommates.com website credibly said, ‘‘Look, we didn’t tell people 

what roommates they should have. This is all their doing.’’ And yet, 

because of the design of the website, it was held that they were responsible, in part, for the creation or development of that content. 

I think there’s a standard there that the courts have found, you 

know, very suitable to, you know, pinning the tail on the responsible party—— 

Mr. RASKIN. Uh-huh. But would you agree that what you’re describing as a design standard would correspond in the criminal law 

field to one of deliberate action? There’s negligence, recklessness, 

knowledge—— 

Mr. COX. Well, let me give you another example from other cases. 

Mr. RASKIN. Yeah. 

Mr. COX. Other cases have said that where the website, you 

know, encouraged the tortious conduct or encouraged the bad conduct that that was enough. 

Mr. RASKIN. Sure. And that goes way beyond knowledge to deliberate participation. 

Mr. COX. But, also, those are cases where, you know, the defendant would say, ‘‘Look, I didn’t write it. I didn’t do it.’’ So, you know, 

in the newspaper context, you know, using New York Times 

against Sullivan again, I mean, imagine if the newspaper didn’t 

even write the article, you know? I mean—— 

Mr. RASKIN. Yeah. 

OK. Let me just change the subject quickly, because I just have 

a couple minutes left here. 

I am troubled also about this question of Federal or State. And 

I’m just wondering if any of the panelists have a thought about— 


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I mean, we could alter the standard in some way but still confine 

it to Federal enforcement, or we could maintain the standard but 

allow the States and local Governments to get into it. 

And what is the reality of how we’re actually going to deal with 

the problem of trafficking? Do we need to nationalize this in this 

way, by delegating it to thousands of potential law enforcement entities across the country? 

And so, I don’t know, Mr. Kosseff? 

Mr. KOSSEFF. So I believe that there’s a very strong role that 

States can play in addition to the Federal Government, both on 

the—particularly on the criminal side—or on the civil side. 

But I think what’s necessary for both the State criminal and civil 

enforcement, even if they have their own laws, is to have parameters. And we’ve had this before, for example, for ERISA employment discrimination claims, where the State laws are not preempted if they meet certain elements. 

Because that provides some certainty, and, frankly, I think it 

makes enforcement more effective than possibly having a bunch of 

different requirements, which we’ve seen in other areas of technology law that, frankly, just don’t accomplish the ultimate goal as 

much as having these common elements. 

Mr. RASKIN. Great. 

I think I’m out of time here. I thank you, Mr. Chairman. 

Mr. RUTHERFORD. The gentleman yields back. 

The chair will now recognize Mrs. Roby of Alabama. 

Mrs. ROBY. We’ll just pick up where we left off. So the question 

was, after talking to Professor Leary about the Wagner bill—and 

so I guess the question to the rest of the panel is, if that’s not the 

answer, then what is? 

In any order. 

Go ahead. 

Mr. ENGSTROM. Sure. So I have thoughts on this. 

First, I think it’s heartening that I don’t think there’s a lot of a 

gap between what we think a responsible approach to this is and 

what some other folks think. So I think there are things we agree 

on. 

Any State’s enforcement of trafficking law should be, basically, 

the Federal law. 

We don’t want to condition a platform’s liability or limit their liability protections based upon any content moderation practices. 

Let’s maintain the immunity and make sure that that’s clear. 

Let’s ensure that it’s actual knowledge of specific conduct so 

you’re not holding good actors in a position where, you know, they 

don’t know when they’re liable. I thought the Congressman’s position on, you know, law enforcement putting the provider on notice—that takes away that concern about when I have knowledge. 

I also want to, you know, be cautious about how much we want 

to rely on technology to solve the problem. It’s a way you can identify the range of activities going on on your platform, but it’s far 

from perfect and it’s often, you know, very difficult to parse. 

So, yes, there’s a huge volume of data out there, and I just want 

to make sure that, you know, however we craft this proposal—and 

I think it can be done through, you know, specific, very narrow 

fixes—takes that reality into account and, again, doesn’t, you know, 


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condition or limit 230’s protections based upon, you know, deploying particular technologies, because I think that could be very 

counterproductive. 

Mr. KOSSEFF. So I agree with much of what both Mr. Engstrom 

and Professor Leary had to say. And I really am heartened that I 

think there is a lot of common ground to work from here. This debate has gotten very heated, and I think that we can sort of focus 

on the details of how to sort this out. 

A few additional things, not to repeat what they’ve said. 

This whole idea of the technology and how technology could 

screen for sex-trafficking ads, I have heard—and I’m not a technologist, by any means; I’m a lawyer. But I have heard from both 

sides about how effective or ineffective technology to identify sextrafficking ads could be compared to things like PhotoDNA for child 

pornography. I’d like to have a much more substantive discussion 

and study on that, and—— 

Mrs. ROBY. You and me both. 

Mr. KOSSEFF. Yes. 

Mrs. ROBY. I want to understand that, because I think that’s 

part of what may be a hindrance right now, is not being able to 

understand why one is so different from the other. 

And so, of course, I’ll work with staff here on this committee but 

would love any additional information outside of the testimony 

you’ve already provided that could help us with that and wrap our 

minds around how that works. Because I, like you, am a lawyer, 

not—don’t have a deep understanding of the technology. 

Mr. KOSSEFF. Yeah. So I think that’s an important aspect to figure out. 

And I think there are privacy-related concerns that go along, 

things like whether ECPA would be triggered if there were this 

scanning for certain content. So we’d have to have a broader discussion about how other statutes interplay with that. 

But, again, I just think more discussions. I think today has been 

a great starting point. And also looking at whether we could get 

some degree of uniformity. Because, again, I mean, in the other 

areas of technology law that I’ve practiced and written about, when 

you have conflicting requirements, that makes enforcement difficult. And I want enforcement to be as strong against these culpable sites as possible, and I don’t want any red tape holding it up. 

So that’s really what it comes down to for me. 

Mr. COX. I just want to pick up on that last point. Right now, 

section 230 is a uniform standard. It applies across all criminal law 

and all civil law, for torts as well as crimes. If we go in and we 

amend section 230 and come up with substantive standards that 

relate to the underlying criminal offense and stick it in that statute, then we’ve got now the beginnings of divergent 230 case law. 

What you really want to do is the same thing, only do it in Title 

18, where it belongs. And so put a sex-trafficking-specific tool into 

Title 18 that accomplishes essentially the objectives that we’re all 

talking about here. I’ve attached language to my testimony that 

does this. And the vehicle for it would be 18 U.S.C. section 1952, 

the Travel Act, which covers prostitution but doesn’t specifically 

cover sex trafficking. Amend it to do that, provide for enhanced 

penalties all the way up to life in prison, put victim restitution 


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right in there, and give this, the same Federal tool, then, to the 

States, which you can do easily by putting together a joint FederalState task force. 

All the AGs want to get involved in this. You saw 50 AGs signed 

a letter saying that they want to become involved in this. Put them 

together in a task force so we get the same result we’ve had in 

child pornography. 

I hasten to point out that in child pornography there’s not a 

carve-out for section 230. So if we’re making progress there, why 

aren’t we making it in sex trafficking? It’s because we haven’t had 

any Federal prosecutions under the SAVE Act. And it’s also because the State prosecutors are running up against some of these, 

you know, anomalous barriers where they either haven’t been able 

to plead or didn’t plead the facts properly and got a bad result. 

That’s been a handful of cases, and there’s clearly a right way to 

do it. 

In this task force, the Department of Justice can make all the 

AGs special attorneys general and give them the full power of the 

Federal Government to implement Federal statutes. And that can 

include not just Title 18; it can be—in fact, they can do section 5 

of the FTC Act on their own even without being so designated. 

When they do this, when they go into court as special attorneys 

general appointed under a statute, existing power that DOJ has to 

implement both State and Federal law in their prosecutions, they 

just zip right through the issues with respect to section 230, if 

there are any, because section 230, on its face, says it has no application to Federal law. 

Mrs. ROBY. I’m way over my time. Thank you for your generosity. 

Again, just thank you each for being here and your commitment 

to wanting to get this right. So thank you. 

Mr. RUTHERFORD. Thank you. 

And, seeing no further questions, I want to thank the committee 

very much for your testimony here today and for enlightening us. 

Without objection, all members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing is adjourned. 

[Whereupon, at 11:57 a.m., the subcommittee was adjourned.] 

Æ 


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