LOS ANGELES—That state politics often makes for strange bedfellows is notably in play regarding the intensifying campaign by state attorneys general to amend the federal Communications Decency Act, which they believe fatally hampers their efforts to target websites like Backpage.com that they accuse of profiting from underage sex trafficking. The Associated Press is now reporting that conservative state legislators are conspiring to block their efforts.
“A coalition of conservative lawmakers and businesses has drafted a model resolution that could be considered next year in state capitals from coast to coast,” reported the AP. “The document urges Congress to deny state prosecutors the enforcement power they seek over the ads—warning that it could discourage investment in new internet services.”
What the state prosecutors are seeking is tiny in terms of the actual legislative language they want to amend, amounting to an additional two words only, but its impact could be profound. The requested amendment was contained in a letter signed by 47 state attorneys general this summer that was sent to Senate and House leaders in their respective Commerce Committees. In it, the AGs request:
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.
That seemingly innocuous addition would free the bonds that now prevent states from prosecuting websites that allow the uploading of ads that the state claims engage in the sexual trafficking of minors. They have been free to go after “pimps, prostitutes and customers” with gusto, and have done so—with the eager assistance of sites like Backpage.com, it must be added—but the AGs argue that the scale of what they are dealing with requires more tools than they currently have at their disposal.
“Of particular concern to state attorneys general,” stated the AP, “are online classifieds, such as those hosted by Backpage.com, which advertise ‘adult’ services for strippers and escorts with veiled references to prostitution. Investigators say that pimps offering children are using the sites, making it easier for pedophiles to buy sex.”
The article goes on to note that conservative lawmakers arguing against the requested changes to the CDA—whose Section 230 has been a cornerstone of protection against a natural government tendency to blame the technological messenger—find themselves in a pickle when the countervailing arguments involves minors and sex.
As one state legislator opposed to the AGs request, North Dakota Rep. Blair Thoreson, struggled to explain, "Obviously, anything dealing with sexual predators or sex trafficking, we want to put an absolute stop to that. But in this case, I think we can maybe find other ways to do it."
Considering the requested change to the legislative language is as broad as the existing language, and encompasses all state criminal statutes as henceforth no longer being bound by Section 230, a more nuanced approach is probably a good idea. Make that definitely a good idea.