The Congress has been making important progress in reforming Section 230 of the Communications Decency Act. Section 230 is the provision that provides legal protection to websites like Backpage.com, which facilitate the sale of children online. Congress has introduced two bills—SESTA in the Senate (Stop Enabling Sex Traffickers Act) and FOSTA (Fight Online Sex Trafficking Act) in the House. The two bills take different approaches in crafting a legislative solution, but the core of what they seek to do is similar. Both bills have enjoyed broad-based, and bipartisan support, and both bills have made real progress in moving through the legislative process this year.
However, the legislative process is a long and winding road. And as part of the journey of this bill, House Judiciary Chairman Bob Goodlatte (R-VA) and his committee had the opportunity to insert their own ideas. The Chairman considered Congresswoman Ann Wagner’s original FOSTA bill and adopted a series of amendments that radically changed it. Unsurprisingly, many in the advocacy community were upset, and expressed their anger at the member of Congress for allowing these changes.
One of these changes, which seemed a gift to the tech lobby, was to strip Congresswoman Wagner’s bill of the “civil cause of action.” This provision gave victims of human trafficking the right to sue websites and recover damages—amending Section 230—which has caused all this trouble in the first place. We think this right of action needs to be restored because asking prosecutors to play whack-a-mole with criminal cases on sex websites will never protect kids. We need to change the economics of this criminal act. The best way to do that is to empower victims to have their day in court. These victims can receive compensation for the incredible harm that has been inflicted on them. And if the entities who enable the sale of children are held financially accountable for the damage they have caused, we anticipate there will be a lot fewer Backpages in the future. So the Congresswoman’s original provision needs to be reincorporated before this bill is signed into law. And Representative Wagner has pledged to work with ECPAT to do just that.
But the Chairman’s amendment makes another change concerning the “Mann Act” originally known as White Slave Traffic Act. This law passed in 1910 during a period of political, economic and social reform called “The Progressive Era.” It began with Teddy Roosevelt’s election, and ended with the entry of the United States into World War I. Reformers at the turn of the 20th Century were contending with huge economic dislocation as changes in mechanization brought many more citizens off the farm and into the cities. There were problems of concentration of wealth, political corruption, voting rights, and waves of immigration. It was a list of daunting societal problems which should seem uncannily familiar to us in the early 21st Century.
This societal upheaval brought many young women from farming communities and into cities, alone, to work in factories. By the early 1900s this trend gave rise to fears that young women were moving to the cities and falling into prostitution. Of course, for a society evolving from Victorian sensibilities, there was not a lot of difference between a woman who had fallen into prostitution, and a woman who was merely sexually active. Compounding the concerns of the public were the waves of immigrants arriving from Poland, Ireland, Italy and Germany at this time. As the muckraker press sensationalized, these immigrants might supply a steady stream of young women vulnerable to prostitution.
The reality of the scope and nature of this problem remains a source of academic debate. However, whatever the truth of the circumstance, the Congress was prompted to quickly pass a bill authored by Robert J. Mann of Illinois. The Mann Act created a new Federal felony for anyone who:
Knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, for the purpose of prostitution or debauchery, or for any other immoral purpose.
In a very real sense, the Mann Act is a precursor to the modern Trafficking Victims Protection Act. The final phrase above “or for any other immoral purpose” was sadly used by prosecutors to create a lot of legal mischief. The phraseology is incredibly broad, and the U.S. Supreme Court insisted on reading it as broadly as possible. So suddenly, the Mann Act, which was truly aimed at the commercial sex trade, was being used in all sorts of cases. Men traveling with mistresses were arrested, people were blackmailed, and most notoriously, boxer Jack Johnson was prosecuted. Jack Johnson was the first African-American heavyweight world champion. Johnson’s victory over former white heavyweight champion, James Jeffries, sparked race riots across America. When Johnson was found traveling in the company of a white woman, he was arrested for violation of the Mann Act.
Fortunately, the Congress has amended the law several times, removing the most overreaching sections and applying the act to child sexual abuse imagery. Chairman Goodlatte has used the FOSTA legislation to amend the Mann Act again. This time, the law is expanded to cover those who promote or facilitate prostitution. The Chairman is attempting to get at websites like Backpage, but he’s utilizing a law other than the Trafficking Victims Protection Act. In the advocacy community, we consider the Trafficking Victims Protection Act to be the comprehensive and foundational law to fight human trafficking. Unsurprisingly, many advocates are upset that the Chairman is deviating from the expected course.
But before we run for the torches and pitchforks, it is worth asking, is he right? In reviewing the Trafficking Victims Protection Act, it becomes clear that some of its construction reflects an early understanding of the problem. The majority of the bill is focused on the international component of human trafficking, as if the problem was largely abroad—and indeed, that is where ECPAT’s focus began. So the domestic criminal provisions codify our early understanding of child trafficking inside our own country. The child trafficking crime requires very high legal standards of proof. In an effort to distinguish human trafficking from prostitution, the law creates additional complications for prosecutors seeking to hold these criminals accountable. Today, we have a more complete picture of the problem. We now know children from any community, of any economic background, can be groomed and recruited. We realize that children are not “prostitutes” but rather they are exploited children. And the law, broadly speaking, has been moving in this direction. The Scandinavian Model for addressing demand is catching global attention for its very impressive results.
Furthermore, prosecutors have been particularly hamstrung in using the Trafficking Victims Protection Act against websites. The original law was targeted at pimps, the online dimension was just beginning to evolve when the law was designed. But most websites are very careful to avoid stating that the young girl or boy in the advertisement is under 18, or might be a trafficking victim. Instead they use codewords and cues intended for buyers, but expressly designed to avoid entanglements with law enforcement. And since these key elements of the crime are missing, it becomes much harder to go after these websites. Thus, when prosecutors have elected to tackle these problems, they have typically relied on a prostitution statute.
So, perhaps the Chairman is right. Maybe the higher burdens of proof and the difficult requirements to show “actual knowledge” included in the crime of child trafficking are not the useful tools to prosecutors that we hope. When casting around for another law to meet prosecutor’s demands for better tools the Chairman settled on the Mann Act. And in spite of the law’s checkered history, it is probably a smart move. The law has 100 years of precedent behind it. That precedent has been interpreted expansively by the courts, rather than narrowly, as has been the problem with the Trafficking Victims Protection Act. And most importantly, prosecutors know how to utilize the law, and apply it regularly. Eliot Spitzer himself was prosecuted under Mann Act violations.
All of which is to say, the Mann Act should get a second hearing. We would be foolhardy to reject a tool that prosecutors say would actually help them. Instead we should focus on a win-win outcome. We should focus on restoring victims’ right to their day in court, while also attaching this new expansion of the Mann Act. And it appears a bipartisan group of members of the House are poised to make just such a compromise. The Mann Act may be an old, dusty tool, but its a reliable one. We should welcome its addition to our effort to help these children we all care so much about.