Tackling an injustice like human trafficking requires legal instruments keep pace with evolving technology. There’s also the law of unintended consequences.
The Communications Decency Act of 1996 was passed when the Internet was still a consumer novelty. The mission was to protect kids from indecent (read: pornographic) material. The unintended consequence played out in the courts, as provisions of the act reined in state prosecution of adult classified sites, such as Backpage.com, businesses that advance and cash in on human trafficking.
The problem can be fixed by amending the law. Criminal jurisdiction should extend to state and local prosecutors, professionals freighted with the real-world consequences.
On Wednesday, 49 state attorneys general, including Washington’s Bob Ferguson, sent a letter to congressional leaders asking that they amend the CDA to restore traditional jurisdictions to local authorities. The letter underlines the paradox.
“It is ironic that the CDA, which was intended to protect children from indecent material on the Internet, is now used as a shield by those who intentionally profit from prostitution and crimes against children,” they write. “Federal courts have broadly interpreted the immunity provided by the CDA, and recently the U.S. District Court for the Western District of Washington held that the CDA preempts state criminal law.”
Federal enforcement by itself is inadequate.
Ferguson co-chairs the national attorneys general committee on human trafficking. He follows the inspired tradition of Rob McKenna, a champion of aggressive pursuit of traffickers and support for victims.
“Human trafficking is modern day slavery,” Ferguson said in a statement. “The Communications Decency Act needs to be modernized to provide local prosecutors the tools to strike back against those who use technology to promote the sexual exploitation of children.”
Some myth-busting is required. Americans, steeped in Louis L’amour westerns, imagine a caricature, the wiseacre prostitute with a heart of gold. If only life were so gentle, so repairable. Trafficking today is invisible, with crooks pimping immigrants and children online. It’s why local prosecutors need the authority to pursue companies fronting prostitution.
The final challenge is to look at trafficking through the lens of human rights. This requires upholding the dignity and rights of the trafficked person. No one shall be held in “slavery or servitude,” reads the 1966 International Covenant on Civil and Political Rights. Human trafficking is servitude (if not slavery) and should be approached as such. Amend the CDA and make whole the promise of human rights.
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