Making it a Federal Crime for Websites to Promote Prostitution and Sex Trafficking (H.R. 1865)

What is H.R. 1865?

(Updated January 12, 2021)

This bill was enacted on April 11, 2018

This bill would amend Section 230 of the Communications Decency Act to allow state authorities to investigate and prosecute websites that facilitate sex trafficking under state sex trafficking or sexual exploitation of children laws. It would make it a federal crime for any person or entity (like Backpage.com) that publishes information in furtherance of a sex trafficking offense through knowing or reckless conduct, which would be punishable a criminal fine and up to 20 years imprisonment. Victims would be allowed to pursue damages and attorneys’ fees by filing a civil suit in U.S. district court.

Defendants would be able to assert that the promotion or facilitation of prostitution is legal in the area where it was targeted as an affirmative defense. 

Enhanced penalties, including a fine and/or prison term of up to 25 years, would be established for a person who uses or operates a commercial facility to promote prostitution in one of the following aggravating circumstances: 1) promoting or facilitating the prostitution of five or more persons; or 2) acting with reckless disregard that such conduct contributes to sex trafficking.

Argument in favor

Congress needs to clarify that the Communications Decency Act doesn’t protect websites that promote the sex trafficking of children. This bill gives law enforcement, prosecutors, and victims the tools they need to bring sex traffickers and their enablers to justice.

Argument opposed

This bill as written is too vague and could apply to numerous web services that host user-submitted content, exposing them to criminal and civil liability for actions taken by users on their platform.

Impact

Victims of sex trafficking; sex traffickers and those who facilitate their services; and states.

Cost of H.R. 1865

The CBO estimates that enacting this bill would have an insignificant impact on the federal budget.

Additional Info

In-Depth: Sponsoring Rep. Ann Wagner (R-MO) introduced this bill to clarify legal ambiguities that have prevented the federal government, states, and victims of sex trafficking from pursuing justice against sex traffickers and their enablers:

“I am honored to introduce this legislation on behalf of the countless children, women and men who have been sold into modern slavery and robbed of their dignity. Sex trafficking has no place in a just society, and bad actors who run these websites are criminals who belong in prison. Congress never intended for Section 230 to give a free pass to the retailers of America’s children, and we must address the judicial interpretation of the law and provide a voice for the most vulnerable in our society. This legislation gives U.S. law enforcement officials, prosecutors, and victims the tools they need to help dismantle the human trafficking trade in the United States.”

Original cosponsor Rep. Joyce Beatty (D-OH) added:

“I am proud to join Congresswoman Ann Wagner in continuing our bipartisan effort to end the scourge of human trafficking. It is unbelievable that in 2017, web developers, digital advertisers and other companies are allowed to sidestep federal state and human trafficking laws and avoid prosecution because of legal ambiguity. The Allow States and Victims to Fight Sex Trafficking Act of 2017 will strengthen and clarify current law, ensuring justice for more victims and holding accountable both the trafficker and those who facilitate sex trafficking. I look forward to working with my colleagues to get this important piece of legislation passed and signed into law by the President.”

Critics of this bill and its companion in the Senate argue that its “sweepingly vague definition” could apply to “any number of services that host user-submitted content.” Eric Goldman, a law professor at Santa Clara University, wrote:

“what online services will be regulated other than Backpage? The press release accompanying the Senate bill draft references Backpage a half-dozen times. Is this law only about making sure a single company, Backpage, is dead dead dead? Or will the bill reach other online services? If so, who? The most likely answer is that this law potentially implicates every online service that deals with user-generated content, which would make this an unusually wide-ranging bill..”

This legislation passed the House Judiciary Committee on a voice vote and has the support of 174 bipartisan cosponsors, including 114 Republicans and 60 Democrats.

Media:

• Sponsoring Rep. Ann Wagner (R-MO) Press Release
  
• CBO Cost Estimate
  
• HuffPost
  
• Washington Post
  
• The Hill (Op-Ed Opposed)
  
• The Verge (Opposed)