WASHINGTON • Rep. Ann Wagner’s push against online sex trafficking passed a key legislative hurdle Tuesday, but not without controversy.
Her “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” passed the House Judiciary Committee by unanimous voice vote and could be headed to a full House of Representatives vote before Christmas, or early next year.
Wagner, R-Ballwin, called it “the toughest legislation when it comes to online sex trafficking that has ever seen the light of day, in all of Congress.”
But senators of both parties, and a key Democrat on the House Judiciary Committee, said Wagner’s recent rewrite of her bill gives state and local prosecutors and civil litigants less power to go after online sex traffickers than a similarly intended bill that is advancing in the Senate.
Critics, including the Senate bill’s primary sponsor, Ohio Republican Rob Portman, say that Wagner has inserted “intent” language in her bill, one of the highest burden-of-proof bars in the judicial system, and therefore gives prosecutors and civil litigants less power to go after alleged wrongdoing than the Senate bill.
That Senate bill has more than 50 co-sponsors, including Sens. Claire McCaskill, D-Mo., and Roy Blunt, R-Mo.
Wagner’s House version says that “whoever uses or operates a facility or means of interstate or foreign commerce or attempts to do so with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 15 years, or both.”
The Senate and the House bills are primarily aimed at Backpage, the classified ad website whose adult advertising section has been used to traffic in illegal sex. Wagner said she wrote hers as “forward looking” to give prosecutors the power to go after sites that may try to fill the vacuum if Backpage goes out of business.
Backpage has consistently won court battles based on protections outlined in the Communications Decency Act. Backpage lawyer Liz McDougall has not commented on the two bills, but she has argued that Congress risks driving illegal sex-trafficking into harder-to-find spaces on the internet by going after the public Backpage site.
Wagner said she consulted with law enforcement officials and prosecutors before inserting the “intent” language, and that “reckless disregard” language in her bill also gives prosecutors more power to go after “bad actors.” Her bill, and not the Senate bill, also adds language allowing prosecutors to use current laws against prostitution to go after online sites that promote it, Wagner said.
But Rep. Jerrold Nadler, D-N.Y., a member of the House Judiciary Committee, said that victims and victims’ rights organizations “believe that the proposal we are considering today does not adequately provide relief for the victims of trafficking and they argue that it would continue to shield websites that facilitate trafficking from the liability.
“They also have concerns that they were not properly consulted in the development of this proposal,” Nadler said.
Wagner said she shared a draft of the new language with victims’ groups more than a month ago.
Portman said his Senate bill is a “carefully crafted, bipartisan solution that has the support of all major stakeholders” while Wagner’s “is opposed by advocates because they’re concerned it is actually worse for victims than current law.”
The Internet Association, which represents big tech, including Google and Facebook, has officially supported both bills, after earlier opposing them. But Nadler released a letter Tuesday from victims, parents of victims, and organizations representing those trafficked online that said that Wagner’s bill “imposes a specific ‘intent’ standard for any liability, which makes it nearly impossible for any civil litigant to file successfully against bad actors.”
McCaskill said she worries Wagner’s bill would result in “cutting off civil access” for alleged victims to sue online sites.
“I think there is pressure from some of the online companies that have been very comfortable having this blanket immunity, and I think foreclosing access to the courts of the victims of sex trafficking doesn’t make any sense,” McCaskill said.