H. Rept. 115-572 - ALLOW STATES AND VICTIMS TO FIGHT ONLINE SEX TRAFFICKING ACT OF 2017115th Congress (2017-2018)
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115th Congress } { Rept. 115-572
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
ALLOW STATES AND VICTIMS TO FIGHT ONLINE SEX TRAFFICKING ACT OF 2017
_______
February 20, 2018.--Committed to the Whole House on the State of the
Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 1865]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1865) to amend the Communications Act of 1934 to
clarify that section 230 of such Act does not prohibit the
enforcement against providers and users of interactive computer
services of Federal and State criminal and civil law relating
to sexual exploitation of children or sex trafficking, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Hearings......................................................... 6
Committee Consideration.......................................... 6
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 6
New Budget Authority and Tax Expenditures........................ 6
Congressional Budget Office Cost Estimate........................ 6
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Performance Goals and Objectives................................. 8
Advisory on Earmarks............................................. 8
Section-by-Section Analysis...................................... 8
Changes in Existing Law Made by the Bill, as Reported............ 10
Committee Jurisdiction Letters................................... 14
The Amendment
The amendment is as follows:
Strike all that follows after the enacting clause and insert
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Allow States and Victims to Fight
Online Sex Trafficking Act of 2017''.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) section 230 of the Communications Act of 1934 (47 U.S.C.
230; commonly known as the ``Communications Decency Act of
1996'') was never intended to provide legal protection to
websites that unlawfully promote and facilitate prostitution
and contribute to sex trafficking;
(2) websites that promote and facilitate prostitution have
been reckless in allowing the sale of sex trafficking victims
and have done nothing to prevent the trafficking of children
and victims of force, fraud, and coercion; and
(3) clarification of such section is warranted to ensure that
such section does not provide such protection to such websites.
SEC. 3. PROMOTION OF PROSTITUTION AND RECKLESS DISREGARD OF SEX
TRAFFICKING.
(a) Promotion of Prostitution.--Chapter 117 of title 18, United
States Code, is amended by inserting after section 2421 the following:
``Sec. 2421A. Promotion or facilitation of prostitution and reckless
disregard of sex trafficking
``(a) In General.--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 10 years, or both.
``(b) Aggravated Violation.--Whoever uses or operates a facility or
means of interstate or foreign commerce with the intent to promote or
facilitate the prostitution of another person and--
``(1) promotes or facilitates the prostitution of 5 or more
persons; or
``(2) acts in reckless disregard of the fact that such
conduct contributed to sex trafficking, in violation of
1591(a),
shall be fined under this title, imprisoned for not more than 25 years,
or both.
``(c) Civil Recovery.--Any person injured by reason of a violation of
section 2421A(b) may recover damages and reasonable attorneys' fees in
an action before any appropriate United States district court.
Consistent with section 230 of the Communications Act of 1934 (47
U.S.C. 230), a defendant may be held liable, under this subsection,
where promotion or facilitation of prostitution activity includes
responsibility for the creation or development of all or part of the
information or content provided through any interactive computer
service.
``(d) Mandatory Restitution.--Notwithstanding sections 3663 or 3663A
and in addition to any other civil or criminal penalties authorized by
law, the court shall order restitution for any offense under this
section.
``(e) Affirmative Defense.--It shall be an affirmative defense to a
charge of violating subsection (a) where the defendant proves, by a
preponderance of the evidence, that the promotion or facilitation of
prostitution is legal in the jurisdiction where the promotion or
facilitation was targeted.''.
(b) Table of Contents.--The table of contents for such chapter is
amended by inserting after the item relating to section 2421 the
following:
``2421A. Promotion or facilitation of prostitution and reckless
disregard of sex trafficking.''.
SEC. 4. COMMUNICATIONS DECENCY ACT.
Section 230(e) of the Communications Act of 1934 (47 U.S.C. 230(e))
is amended by adding at the end the following:
``(5) No effect on state laws conforming to 18 u.s.c. 1591(a)
or 2421a.--Nothing in this section shall be construed to impair
or limit any charge in a criminal prosecution brought under
State law--
``(A) if the conduct underlying the charge
constitutes a violation of section 2421A of title 18,
United States Code, and promotion or facilitation of
prostitution is illegal in the jurisdiction where the
defendant's promotion or facilitation of prostitution
was targeted; or
``(B) if the conduct underlying the charge
constitutes a violation of section 1591(a) of title 18,
United States Code.''.
SEC. 5. SAVINGS CLAUSE.
Nothing in this Act or the amendments made by this Act shall be
construed to limit or preempt any civil action or criminal prosecution
under Federal law or State law (including State statutory law and State
common law) filed before or after the day before the date of enactment
of this Act that was not limited or preempted by section 230 of the
Communications Act of 1934 (47 U.S.C. 230), as such section was in
effect on the day before the date of enactment of this Act.
Purpose and Summary
H.R. 1865, the Allow States and Victims to Fight Online Sex
Trafficking Act of 2017, is designed to combat online sex
trafficking by providing new tools to law enforcement through a
new federal criminal statute and by making it easier for states
to prosecute criminal actor websites by amending section 230 of
the Communications Decency Act, 47 U.S.C. Sec. 230.
Background and Need for the Legislation
Since the expansion of the Internet, a number of classified
advertising websites have developed and are now a popular and
widely-used alternative to traditional print advertising in
newspapers. Sites like Craigslist, Backpage.com, and eBay
Classifieds provide users with a forum for buying and selling
goods and services to a broader audience on the web. These
websites group advertisements by location and category, similar
to print advertisements. The use of these websites has grown
exponentially as Internet use increases. Unfortunately these
websites, including online classified sites like Backpage.com,
Eros, Massage Troll, and cityxguide, have also become one of
the primary channels of sex trafficking. This is in part due to
technological advances on the Internet that make information
easily accessible and provide a forum for anonymity, which
allows traffickers to post advertisements of minors for a world
of customers to see with ease and security. Some websites have
gone beyond merely hosting advertisements, however, and have
purposely created platforms designed to facilitate prostitution
and sex trafficking.
Because of protections provided to ``interactive computer
services'' by the Communications Decency Act (CDA), 47 U.S.C.
Sec. 230, it has been challenging to hold bad-actor websites
accountable criminally (at the state level) and civilly.
Congress passed the CDA in 1996, in an attempt to ``remove
disincentives for the development and utilization of blocking
and filtering technologies that empower parents to restrict
their children's access to objectionable or inappropriate
online material.''\1\ At the same time, Congress sought to
``promote the continued development of the Internet and other
interactive computer services and other interactive media.''\2\
---------------------------------------------------------------------------
\1\47 U.S.C. Sec. 230(b)(4).
\2\47 U.S.C. Sec. 230(b)(1).
---------------------------------------------------------------------------
The CDA provides broad immunity for interactive computer
services and states that no ``provider or user of an
interactive computer service shall be treated as the publisher
or speaker of any information provided by another information
content provider.''\3\ An interactive computer service is ``any
information service, system, or access software provider that
provides or enables computer access by multiple users to a
computer server, including specifically a service or system
that provides access to the Internet and such systems operated
or services offered by libraries or educational
institutions.''\4\ An information content provider is ``any
person or entity that is responsible, in whole or in part, for
the creation or development of information provided through the
Internet or any other interactive computer service.''\5\ Courts
construing Sec. 230(c)(1) frequently have employed a three-
prong test that asks whether: (1) the online entity uses or
provides an interactive computer service; (2) the entity is an
information content provider with respect to the disputed
activity or objectionable content; and (3) whether the
plaintiff seeks to treat it as the ``publisher or speaker'' of
information originating with a third party.\6\ It has been
uniformly held that Internet service providers are
``interactive computer service'' providers.\7\ Courts have
concluded that a Web site operator, search engine, or other
entity was or was not a provider of an ``interactive computer
service'' depending on whether there was a sufficient
indication before the court that it ``provided or enabled
computer access by multiple users to a computer server'' within
the meaning of the definition found at Sec. 230(f)(2).
---------------------------------------------------------------------------
\3\47 U.S.C. Sec. 230(c)(1).
\4\47 U.S.C. Sec. 230(f)(2).
\5\47 U.S.C. Sec. 230(f)(3).
\6\See Ken S. Myers, Wikimmunity: Fitting the Communications
Decency Act to Wikipedia, 20 Harvard Journal of Law & Technology 163
(2006).
\7\Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va.
2003), summarily aff'd, 2004 WL 602711 (4th Cir. 2004).
---------------------------------------------------------------------------
The CDA further provides that:
Nothing in this section shall be construed to prevent
any State from enforcing any State law that is
consistent with this section. No cause of action may be
brought and no liability may be imposed under any State
or local law that is inconsistent with this section.
47 U.S.C. Sec. 230(e)(3). It thus places limits on when states
may enforce both criminal and civil laws. It only allows state
laws to be enforced in cases in which they are deemed
``consistent'' with the CDA.
With respect to combatting websites promoting prostitution
and facilitating sex trafficking, Sec. 230 has complicated
enforcement. In civil litigation, bad-actor websites have been
able to successfully invoke this immunity provision despite
engaging in actions that go far beyond publisher functions. In
2014, three minor Jane Does filed a civil suit in the U.S.
District Court in Massachusetts under the Trafficking Victims
Protection Reauthorization Act, alleging that that Backpage's
platform, categories, and filters ``assist[ed] in the crafting,
placement, and promotion of illegal advertisements offering
plaintiffs for sale.'' The District Court dismissed their
Complaint, holding that Sec. 230 of the CDA barred the lawsuit.
The Second Circuit affirmed, concluding that although the
plaintiffs ``ha[d] made a persuasive case'' that ``Backpage has
tailored its website to make sex trafficking easier,'' it
nevertheless upheld the dismissal of the suit under Sec. 230 on
the grounds that it had not gone beyond being a publisher.
Notably, the plaintiffs in this case chose only to argue
Backpage was not a publisher; they did not argue that Backpage
was an information content provider and would therefore not be
entitled to immunity.
Subsequently, the Senate Permanent Subcommittee on
Investigations launched a 20-month investigation into Backpage.
It found that Backpage had knowingly concealed evidence of
criminality by systematically editing its ``Adult'' ads--that
is, Backpage knew it facilitated prostitution and child sex
trafficking--and that it had been sold to its CEO Carl Ferrer
through foreign shell companies. Backpage would automatically
delete incriminating words, such as ``amber alert,'' from sex
ads prior to publication, moderators then manually deleted
incriminating language that filters missed, and the website
coached its users on how to post ``clean'' ads to cover illegal
transactions. Further, in July 2017, the Washington Post
published a story revealing that a contractor for Backpage had
been aggressively soliciting and creating sex-related ads,
despite Backpage's repeated insistence that it had no role in
the content of ads posted on its site. In sum, Backpage had
engaged in a ruse, holding itself out to be a mere conduit, but
in fact actively engaged in content creation and purposely
concealing illegality in order to profit off of advertisements.
There had been no criminal investigation up until the Senate
investigation to uncover exactly what Backpage was doing, which
is what this bill aims to remedy.
Further, courts have blocked states from enforcing state
criminal laws on the grounds that the state laws were not
consistent with the CDA. Backpage successfully invoked Sec. 230
in federal-preemption challenges to state criminal laws in
Washington, Tennessee, and New Jersey criminalizing the
advertisement of minors for sex. A California state court also
denied the government from proceeding against Backpage on
pimping charges because it deemed the California statue
``inconsistent'' with the CDA.
Importantly, current federal criminal law, which is
unaffected by the CDA, presently lacks proper prosecutorial
tools to combat these websites. Though under 18 U.S.C.
Sec. 1591, a website may be held criminally liable for
knowingly advertising sex trafficking, this knowledge standard
is difficult to prove beyond a reasonable doubt. This is so
because online advertisements rarely, if ever, indicate that
sex trafficking is involved. The advertisements neither
directly nor implicitly state that force, fraud, or coercion
was used against the victim, nor do they say that the person
depicted being prostituted is actually under the age of 18.
Because these indicia of knowledge of criminality are typically
lacking in the advertisements, federal prosecutors usually
cannot demonstrate beyond a reasonable doubt that the website
operators knew that the advertisements involved sex
trafficking. Further, general knowledge that sex trafficking
occurs on a website will not suffice as the knowledge element
must be proven as to a specific victim. Moreover, sex
trafficking cases are often difficult to prosecute because the
victims are often uncooperative due to the traumatic effects of
having been trafficked, may have issues with illegal
substances, and may sometimes appear unsympathetic to juries. A
new statute that instead targets promotion and facilitation of
prostitution is far more useful to prosecutors. Prostitution
and sex trafficking are inextricably linked, and where
prostitution is legalized or tolerated, there is a greater
demand for human trafficking victims and nearly always an
increase in the number of women and children trafficked into
commercial sex slavery.
H.R. 1865 will allow vigorous criminal enforcement against
all bad-actor websites, not just Backpage.com, through the
creation of a new federal law and by explicitly permitting
states to enforce criminal laws that mirror this new federal
law and current federal sex trafficking law. With this robust
criminal enforcement, victims will have more opportunities to
obtain restitution. Furthermore, this enforcement will also
provide victims with information that will be sufficient to
establish successful civil pleadings, by revealing the extent
of content development in which these websites engage.
Hearings
The Committee on the Judiciary held a hearing on the
intersection between the Communications Decency Act and online
sex trafficking, the subject matter of H.R. 1865, on October 3,
2017. Testimony was received from the Honorable Chris Cox,
Outside Counsel, NetChoice; Mr. Jeff Kosseff, Assistant
Professor, United States Naval Academy; Ms. Mary Leary,
Professor of Law, Catholic University Columbus School of Law;
and, Mr. Evan Engstrom, Executive Director, Engine.
Committee Consideration
On December 12, 2017, the Committee met in open session and
ordered the bill (H.R. 1865) favorably reported by voice vote,
a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 1865.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2228, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 7, 2018.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1865, the Allow
States and Victims to Fight Online Sex Trafficking Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Keith Hall.
Enclosure.
cc: Honorable Jerrold Nadler
Ranking Member
H.R. 1865--Allow States and Victims to Fight Online Sex Trafficking Act
of 2017
As ordered reported by the House Committee on the Judiciary on December
12, 2017
H.R. 1865 would broaden the coverage of current laws
against sex trafficking. As a result, the government might be
able to pursue cases that it otherwise would not be able to
prosecute. CBO expects that the bill would apply to a
relatively small number of offenders, however, so any increase
in costs for law enforcement, court proceedings, or prison
operations would not be significant. Any such spending would be
subject to the availability of appropriated funds.
Because those prosecuted and convicted under H.R. 1865
could be subject to criminal fines, the federal government
might collect additional fines under the bill. Criminal fines
are recorded as revenues, deposited in the Crime Victims Fund,
and later spent without further appropriation action. CBO
expects that any additional revenues and associated direct
spending would not be significant because the bill would
probably affect only a small number of cases.
Because enacting H.R. 1865 would affect direct spending and
revenues, pay-as-you-go procedures apply. However, CBO
estimates that any such effects would be insignificant in any
year.
CBO estimates that enacting H.R. 1865 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1865 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On January 10, 2018, CBO transmitted a cost estimate for S.
1693, the Stop Enabling Sex Traffickers Act of 2017, as ordered
reported by the Senate Committee on Commerce, Science, and
Transportation on November 8, 2017. CBO's estimates of the
budgetary effects of the two bills are identical.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 1865 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee finds that H.R. 1865 contains no directed
rule making within the meaning of 5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1865 combats online sex trafficking by providing new tools to
law enforcement through a new federal criminal statute and by
making it easier for states to prosecute criminal actor
websites by amending section 230 of the Communications Decency
Act.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1865 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
Section 1. Short title. Section 1 sets forth the short
title of the bill as the ``Allow States and Victims to Fight
Online Sex Trafficking Act of 2017.''
Sec. 2. Section 2 states that it is the sense of Congress
that:
(1) Section 230 of the Communications Act of 1934 was
never intended to provide legal protection to websites
that unlawfully promote and facilitate prostitution and
websites that facilitate traffickers in advertising the
sale of unlawful sex acts with sex trafficking victims;
(2) websites that promote and facilitate prostitution
have been reckless in allowing the sale of sex
trafficking victims and have done nothing to prevent
the trafficking of children and victims of force,
fraud, and coercion; and
(3) Clarification is warranted to ensure Section 230
does not provide liability protection to such websites
described in (2)
Sec. 3. Promotion of Prostitution and Reckless Disregard of
Sex Trafficking
Adds a new statute within the Mann Act, 18 U.S.C.
Sec. 2421A, to create a statutory maximum of 10 years
imprisonment for the use or operation of an interstate facility
with the intent to promote or facilitate the prostitution of
another person. This promotion or facilitation must be
deliberate; thus, the operator of a facility or means of
interstate or foreign commerce shall not be deemed to have the
``intent to promote or facilitate the unlawful prostitution of
another person,'' as that phrase is used in sections 2421A(a)
and 2421A(b), based on the appearance of material promoting
unlawful prostitution of another person, where the material
appears despite the operator's good faith efforts to moderate,
remove, or restrict such material from appearing on or through
the facility.
Creates as an aggravating factor: (1) the intent to promote
or facilitate the trafficking of five or more persons; or (2)
acting in reckless disregard of the fact that the conduct of
using or operating a commercial facility contributed to sex
trafficking (a violation of 18 U.S.C. Sec. 1591(a)).
These aggravating circumstances carry a fine
and/or statutory maximum sentence of 25 years
imprisonment. A website that promotes or facilitates
prostitution will be liable under subsection (b)(2)
where it operates in reckless disregard of the fact
that its promotion or facilitation of prostitution is a
factor, even if not the primary cause, that plays a
part in producing sex trafficking.
Creates a civil recovery mechanism by which
injured persons may recover damages if they were a
victim of a violation of subsection (b)(2).
Provides for mandatory restitution for an
offense under this section.
States that it is an affirmative defense to
a prosecution under subsection (a) and (b)(1) for the
defendant to prove, by a preponderance of the evidence,
that the promotion or facilitation of prostitution is
legal in the jurisdiction where the promotion or
facilitation was targeted. Many websites promoting
prostitution are targeted to specific geographic areas,
though the website itself may be accessible nationwide.
Mere accessibility to a website with targeted
advertisements from another locality where promotion or
facilitation of prostitution is illegal, alone, will
not undermine a defendant's successfully established
affirmative defense.
Sec. 4. Communications Decency Act
Amends Sec. 230(e) of the Communications Decency Act (47
U.S.C. Sec. 230(3)) to allow states to enforce certain criminal
laws without litigating the application of Sec. 230. States
that nothing in this section shall be construed to impair or
limit any charge in a criminal prosecution brought under state
law if:
(1) The conduct underlying the charge violates 18
U.S.C. Sec. 2421A and prostitution is illegal where the
defendant's promotion or facilitation of prostitution
was targeted; or
(2) The conduct underlying the charge violates 18
U.S.C. Sec. 1591(a).
Under Sec. 230, a state criminal law may be enforced
against an interactive computer service (i.e., a website) as
long as it is ``consistent'' with Sec. 230. This provision,
however, has been problematic in cases in which states have
sought to enforce certain state criminal laws against websites.
While the newly created law, and the federal sex trafficking
law, should both be considered consistent with Sec. 230, as
applied to certain bad-actor websites, in order to allow
immediate and unfettered use of this provision, included is an
explicit carve out to permit state criminal prosecutions. The
language used in the carve out is designed to ensure that
interactive computer services are subject to one set of
criminal laws, rather than a patchwork of various state laws.
In order to qualify for this carve out, a state law's elements
should mirror those in 2421A and 1591(a).
Sec. 5. Savings Clause
Clarifies that nothing in this Act shall be construed to
limit or preempt any civil action or criminal prosecution under
federal or state law that was not limited or preempted by
Sec. 230 of the Communications Decency Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 117--TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED
CRIMES
Sec.
2421. Transportation generally.
2421A. Promotion or facilitation of prostitution and reckless disregard
of sex trafficking.
* * * * * * *
Sec. 2421A. Promotion or facilitation of prostitution and reckless
disregard of sex trafficking
(a) In General.--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 10 years, or both.
(b) Aggravated Violation.--Whoever uses or operates a
facility or means of interstate or foreign commerce with the
intent to promote or facilitate the prostitution of another
person and--
(1) promotes or facilitates the prostitution of 5 or
more persons; or
(2) acts in reckless disregard of the fact that such
conduct contributed to sex trafficking, in violation of
1591(a),
shall be fined under this title, imprisoned for not more than
25 years, or both.
(c) Civil Recovery.--Any person injured by reason of a
violation of section 2421A(b) may recover damages and
reasonable attorneys' fees in an action before any appropriate
United States district court. Consistent with section 230 of
the Communications Act of 1934 (47 U.S.C. 230), a defendant may
be held liable, under this subsection, where promotion or
facilitation of prostitution activity includes responsibility
for the creation or development of all or part of the
information or content provided through any interactive
computer service.
(d) Mandatory Restitution.--Notwithstanding sections 3663 or
3663A and in addition to any other civil or criminal penalties
authorized by law, the court shall order restitution for any
offense under this section.
(e) Affirmative Defense.--It shall be an affirmative defense
to a charge of violating subsection (a) where the defendant
proves, by a preponderance of the evidence, that the promotion
or facilitation of prostitution is legal in the jurisdiction
where the promotion or facilitation was targeted.
* * * * * * *
----------
COMMUNICATIONS ACT OF 1934
* * * * * * *
TITLE II--COMMON CARRIERS
PART I--COMMON CARRIER REGULATION
* * * * * * *
SEC. 230. PROTECTION FOR PRIVATE BLOCKING AND SCREENING OF OFFENSIVE
MATERIAL.
(a) Findings.--The Congress finds the following:
(1) The rapidly developing array of Internet and
other interactive computer services available to
individual Americans represent an extraordinary advance
in the availability of educational and informational
resources to our citizens.
(2) These services offer users a great degree of
control over the information that they receive, as well
as the potential for even greater control in the future
as technology develops.
(3) The Internet and other interactive computer
services offer a forum for a true diversity of
political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual
activity.
(4) The Internet and other interactive computer
services have flourished, to the benefit of all
Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive
media for a variety of political, educational,
cultural, and entertainment services.
(b) Policy.--It is the policy of the United States--
(1) to promote the continued development of the
Internet and other interactive computer services and
other interactive media;
(2) to preserve the vibrant and competitive free
market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or
State regulation;
(3) to encourage the development of technologies
which maximize user control over what information is
received by individuals, families, and schools who use
the Internet and other interactive computer services;
(4) to remove disincentives for the development and
utilization of blocking and filtering technologies that
empower parents to restrict their children's access to
objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal
criminal laws to deter and punish trafficking in
obscenity, stalking, and harassment by means of
computer.
(c) Protection for ``Good Samaritan'' Blocking and Screening
of Offensive Material.--
(1) Treatment of publisher or speaker.--No provider
or user of an interactive computer service shall be
treated as the publisher or speaker of any information
provided by another information content provider.
(2) Civil liability.--No provider or user of an
interactive computer service shall be held liable on
account of--
(A) any action voluntarily taken in good
faith to restrict access to or availability of
material that the provider or user considers to
be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise
objectionable, whether or not such material is
constitutionally protected; or
(B) any action taken to enable or make
available to information content providers or
others the technical means to restrict access
to material described in paragraph (1).
(d) Obligations of Interactive Computer Service.--A provider
of interactive computer service shall, at the time of entering
an agreement with a customer for the provision of interactive
computer service and in a manner deemed appropriate by the
provider, notify such customer that parental control
protections (such as computer hardware, software, or filtering
services) are commercially available that may assist the
customer in limiting access to material that is harmful to
minors. Such notice shall identify, or provide the customer
with access to information identifying, current providers of
such protections.
(e) Effect on Other Laws.--
(1) No effect on criminal law.--Nothing in this
section shall be construed to impair the enforcement of
section 223 or 231 of this Act, chapter 71 (relating to
obscenity) or 110 (relating to sexual exploitation of
children) of title 18, United States Code, or any other
Federal criminal statute.
(2) No effect on intellectual property law.--Nothing
in this section shall be construed to limit or expand
any law pertaining to intellectual property.
(3) State law.--Nothing in this section shall be
construed to prevent any State from enforcing any State
law that is consistent with this section. No cause of
action may be brought and no liability may be imposed
under any State or local law that is inconsistent with
this section.
(4) No effect on communications privacy law.--Nothing
in this section shall be construed to limit the
application of the Electronic Communications Privacy
Act of 1986 or any of the amendments made by such Act,
or any similar State law.
(5) No effect on state laws conforming to 18 u.s.c.
1591(a) or 2421a.--Nothing in this section shall be
construed to impair or limit any charge in a criminal
prosecution brought under State law--
(A) if the conduct underlying the charge
constitutes a violation of section 2421A of
title 18, United States Code, and promotion or
facilitation of prostitution is illegal in the
jurisdiction where the defendant's promotion or
facilitation of prostitution was targeted; or
(B) if the conduct underlying the charge
constitutes a violation of section 1591(a) of
title 18, United States Code.
(f) Definitions.--As used in this section:
(1) Internet.--The term ``Internet'' means the
international computer network of both Federal and non-
Federal interoperable packet switched data networks.
(2) Interactive computer service.--The term
``interactive computer service'' means any information
service, system, or access software provider that
provides or enables computer access by multiple users
to a computer server, including specifically a service
or system that provides access to the Internet and such
systems operated or services offered by libraries or
educational institutions.
(3) Information content provider.--The term
``information content provider'' means any person or
entity that is responsible, in whole or in part, for
the creation or development of information provided
through the Internet or any other interactive computer
service.
(4) Access software provider.--The term ``access
software provider'' means a provider of software
(including client or server software), or enabling
tools that do any one or more of the following:
(A) filter, screen, allow, or disallow
content;
(B) pick, choose, analyze, or digest content;
or
(C) transmit, receive, display, forward,
cache, search, subset, organize, reorganize, or
translate content.
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