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Attorney General Olens Urges Congress to Grant States the Tools to Combat Child Sex Trafficking on the Internet

By   /   July 26, 2013  /   Comments

Special to the Journal

Attorney General Sam Olens today joined a bi-partisan national coalition of 49 attorneys general calling on Congress to amend federal law to help States fight prostitution and child sex trafficking. In a letter to key members of Congress, the attorneys general have asked that Congress amend the Communications Decency Act to restore criminal jurisdiction to State and local prosecutors.

The Communications Decency Act of 1996 (CDA) was drafted when the internet was in its infancy. The original purpose of the Act was to protect children from accessing indecent material online, but courts have interpreted certain provisions of the Act in a way that provides online classified ad sites immunity from State prosecution. Under this protection, sites such as Backpage.com have knowingly created an online marketplace for prostitution and, consequently, child sex trafficking. Local prosecutors report that prostitution solicitations have largely moved online. Such sites are extremely lucrative. Backpage.com, for example, generates an estimated $3 million to $4 million per month in revenue.

“It is ironic that the CDA, which was intended to protect children from indecent material on the internet[1], is now used as a shield by those who intentionally profit from prostitution and crimes against children,” the attorneys general wrote in the letter.

The proposed amendment is narrowly crafted to combat this conduct. Absent interstate travel, federal property or the involvement of a minor, prostitution is not a federal crime. The proposal would remove a loophole that had denied state and local jurisdiction over online classified ads, including those for prostitution and child sex trafficking. By maintaining civil immunity, mainstream online content providers will not be affected, and innovation on the internet will be preserved. If the amendment is enacted, state and local governments will have the ability to criminally investigate whether these sites and their management are culpable for aiding and abetting prostitution or other similar crimes.

“Traffickers have taken advantage of loopholes in the current law to sexually exploit children on the internet,” said Olens. “A majority of the victims recovered by the Georgia Bureau of Investigation, for example, have been advertised on Backpage.com at some point. As the tactics used by traffickers evolve, we must ensure that the law is modernized to effectively combat this heinous crime.”

A copy of the letter follows:

The Honorable John Rockefeller IV
Chairman
Committee on Commerce, Science, and Transportation
United States Senate

The Honorable John Thune
Ranking Member
Committee on Commerce, Science, and Transportation
United States Senate

The Honorable Frederick Upton
Chairman
Committee on Energy and Commerce
United States House of Representatives

The Honorable Henry Waxman
Ranking Member
Committee on Energy and Commerce
United States House of Representatives

Every day, children in the United States are sold for sex. In instance after instance, State and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com. The involvement of these advertising companies is not incidental—these companies have constructed their business models around income gained from participants in the sex trade. But, as it has most recently been interpreted, the Communications Decency Act of 1996 (“CDA”) prevents State and local law enforcement agencies from prosecuting these companies. This must change. The undersigned Attorneys General respectfully request that the U.S. Congress amend the CDA so that it restores to State and local authorities their traditional jurisdiction to investigate and prosecute those who promote prostitution and endanger our children.

It is ironic that the CDA, which was intended to protect children from indecent material on the internet,1 is now used as a shield by those who intentionally profit from prostitution and crimes against children. Federal courts have broadly interpreted the immunity provided by the CDA,2 and recently the United States District Court for the Western District of Washington held that the CDA preempts state criminal law.

As online advertising of child prostitution goes unchecked, sex traffickers are able to expand their businesses, magnifying the scope of the problem. In the last few months alone, law enforcement agencies throughout the nation have linked sex-trafficking operations to internet advertisers. For example, on March 28, Miami police arrested a man for advertising the sex services of a 13-year-old girl on Backpage.com. The perpetrator had tattooed his name across the girl’s eyelids, marking her as his property.4 Two months earlier, two men were arrested in Fairfax County, Virginia for prostituting four minors on Backpage.com.5 And on April 10, four males and one female were arrested in St. Paul, Minnesota for running a prostitution ring of eight girls and women ages 15 to 40. The girls and women were advertised on Backpage.com.6 These examples offer just a small sampling of the countless instances of child sex trafficking that occurs every day in the United States.

In order to better combat such crimes, we recommend that 47 U.S.C. § 230(e)(1) be amended to the following (added language in bold):
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal or State criminal statute.

Federal enforcement alone has proven insufficient to stem the growth of internet-facilitated child sex trafficking. Those on the front lines of the battle against the sexual exploitation of children—State and local law enforcement—must be granted the authority to investigate and prosecute those who facilitate these horrible crimes.
_______________________________________________________________________

1 104 CONG. REC. S2308-01 (daily ed. June 14, 1995) (statement of Sen. Coats, “Mr. President, all you have to do is pick up the telephone and call the FBI, ask their child exploitation task force about the volume of over-the-Internet attempts to seduce, abuse, and lure children into pornography and sexual exploitation.”); 104 CONG. REC. H8470 (daily ed. Aug. 4, 1995) (statement of Rep. Cox, “We want to encourage people like Prodigy, like CompuServe, like America Online, like the new Microsoft network, to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see.”).
2 See M.A. v. Village Voice Media Holdings, LLC, 809 F.Supp. 2d 1041; Dart v. Craigslist, 665 F.Supp.2d 961 (N.D. Ill. 2009); Doe v Bates, 2006 WL 3813758 *1 (E.D. Tex. Dec. 27, 2006).
3 As online advertising of child prostitution goes unchecked, sex traffickers are able to expand their businesses, magnifying the scope of the problem. In the last few months alone, law enforcement agencies throughout the nation have linked sex-trafficking operations to internet advertisers. For example, on March 28, Miami police arrested a man for advertising the sex services of a 13-year-old girl on Backpage.com. The perpetrator had tattooed his name across the girl’s eyelids, marking her as his property.4 Two months earlier, two men were arrested in Fairfax County, Virginia for prostituting four minors on Backpage.com.5 And on April 10, four males and one female were arrested in St. Paul, Minnesota for running a prostitution ring of eight girls and women ages 15 to 40. The girls and women were advertised on Backpage.com.6 These examples offer just a small sampling of the countless instances of child sex trafficking that occurs every day in the United States.

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