SAVE Act Endangers Online Content Platforms

This week, the US House of Representatives is scheduled to vote on HR 4225, the Stop Advertising Victims of Exploitation (SAVE) Act.  Sponsored by Rep. Ann Wagner, the SAVE Act is one of several House bills (including HR 3530 and HR 3610) that focus on the problem of sex trafficking and child exploitation. Sex trafficking is a horrendous crime and we’re glad to see Congress consider bills that focus on preventing it and providing support for victims. Unfortunately, the approach taken in HR 4225 – to directly criminalize the undefined act of “advertising” – sets a dangerous precedent that would jeopardize the hosting of lawful content online.

HR 4225 sets a dangerous precedent that would jeopardize the hosting of lawful content online.

Federal criminal law (18 U.S.C. 1591) currently prohibits the use of force or threats of force to coerce a person into engaging in a commercial sex act, and also prohibits causing, by any means, a person under 18 to engage in a commercial sex act.  Anyone who knowingly “recruits, entices, harbors, transports, provides, obtains, or maintains” a person for the purpose of engaging in a commercial sex act, knowing or in reckless disregard of the fact that the person is under 18 or that the person will be coerced, commits a federal crime.  It is also a crime to knowingly benefit from participating in a trafficking venture.

The existing law is comprehensive and would appear to cover any person or entity who knowingly conducts or supports a trafficking venture.  HR 4225 is intended to broaden the scope of individuals who could be held criminally liable for the activities of a trafficking venture by adding “advertises” to the list of criminal acts. If current law were insufficient to allow prosecutors to bring to trial individuals who knowingly and intentionally engage in human trafficking, then it would of course be appropriate to amend the law.  But the bill’s sponsor has made it clear that the purpose of the bill is to allow prosecutors to go after online classified ad sites such as Backpage.com. These sites host user-generated content, some of which may be related to illegal activity including trafficking. Online classified sites such as Backpage, and Craigslist before it, have often been the target of the bully pulpit, with Attorneys General and other government officials castigating sites until they are forced to discontinue some of their advertising services.

The bill represents an end-run around crucial liability protections that Congress has previously enacted for online intermediaries.

The SAVE Act adds the term “advertises” without defining it.  This is what makes the bill problematically vague and potentially overbroad.  A plain-meaning reading of “advertises” might argue for understanding the scope of this amendment narrowly: the person who “advertises” is the one who creates the content of an ad with the goal of furthering his business.  But knowing that both the bill sponsor and some state Attorneys General are looking for new legal mechanisms to hold online speech platforms liable for their users’ content, it would be quite unsurprising to see prosecutors use this amended language to argue that operators of online ad platforms themselves “advertise” within the meaning of the bill.  Considered in this light, the bill represents an end-run around crucial liability protections that Congress has previously enacted for online intermediaries.

Moreover, nothing in the bill limits its application to self-identified advertising sites; potentially any tweet, status update, video, reblog, or pin could include content that advertises a commercial sex act. The bill therefore is likely to give rise to a de facto notice-and-takedown regime for online content platforms across the board. If HR 4225 becomes law, operators of user-generated content sites will have every incentive to take down sexually themed content that gets reported to them, rather than risk prosecution for continuing to host flagged content with “reckless disregard” to its potentially unlawful nature.  This situation would also create a potentially powerful heckler’s veto mechanism: if someone wanted to see a particular piece of sexually oriented content removed from a site, all they would have to do is report it as a suspected trafficking advertisement. Any site operator faced with the choice between potential federal criminal liability and taking down a post will almost certainly opt for the latter.

This kind of uncertainty will also likely chill ad platforms from taking any steps to screen out and report ads for illegal activities on their sites, lest they be found in “reckless disregard” of something that slips through.  This would be ironic and possibly counterproductive, as Backpage – the sponsors’ primary target – has substantial processes in place, including human review, to identify suspicious ads and assist law enforcement in combating trafficking.

HR 4225 was amended in markup to include a somewhat awkward “mens rea requirement,” seemingly to address the risk of uncertainty for intermediaries, but this amendment would offer little comfort.  It purports to raise the knowledge standard for defendants prosecuted under the statute’s “financial benefit” prong when the underlying offense is advertising.  This might mean that, if a platform is being prosecuted for hosting an ad that was the grounds for a prosecution against the ad’s creator, the platform must be shown to have had knowledge of the victim’s coercion or status as a minor, as opposed to a lower “reckless disregard” standard.  But the language of this amendment is unclear, and it is even less clear how often it would apply.  In any case, the provision does nothing to limit the potential for broad readings of “advertises” discussed above.

HR 4225 could whet the appetite of prosecutors and legislators seeking to go after a wide variety of objectionable or merely unpopular online content by targeting intermediaries.

Ultimately, the problem with the SAVE Act is that it looks to make online content platforms (and offline analogues, including newspapers and magazines) legally liable for content created by others.  As CDT has written about at length, individuals’ ability to express themselves online depends in large part on the availability of legal protections for the third parties that host and transmit their users’ speech.  While Section 230 provides exactly this sort of strong protection for intermediaries, it does include an exception for federal criminal law. It is this exception that the proponents of HR 4225 are seeking to exploit, essentially by writing a criminal advertising offense into federal law. With its vague language aimed at online content hosts, HR 4225 could whet the appetite of prosecutors and legislators seeking to go after a wide variety of objectionable or merely unpopular online content by targeting intermediaries.

Intermediaries will almost always be easier to locate than the actual wrong-doers, making them tempting targets for prosecution and litigation. But targeting intermediaries creates dangerous incentives and invites self-censorship.  The SAVE Act would do exactly that.  Congress should reject this flawed approach.

 

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