Smearing Section 230: A counterattack

Recently, the Internet Association, a trade group for online service providers, introduced a praiseworthy idea into the NAFTA re-negotiation. It asked for the revised trade agreement to include a principle that online platform providers should be immunized from liability for the content that some of their users post. As the IA put it,

NAFTA should prohibit governments from making online services liable for third-party content. Mexico and Canada lack a clear legal principle like Section 230, creating increased risks for U.S. internet service exporters. In fact, Mexico has proposed increasing liability for e-commerce companies.

Section 230 is widely credited with enabling innovative, free and open online services. Sadly, however, it’s become impossible to talk about Section 230 without also talking about human trafficking, and in particular sex trafficking of minors.

Child sex trafficking and Section 230? How on earth did these two things become linked? That’s a long story – and unfortunately, it’s a story of conscious media manipulation, politicized “facts,” and intellectual dishonesty in the service of an ideological construct.

Online classified ad spaces, such as Craiglist (prior to 2014) and Backpage.com, have served as the catalyst of the current controversy. These online services were or are used to match sex workers with customers. As a result, the owners have been dragged into court repeatedly by state Attorneys General who apparently lack the motivation to go after the actual prostitutes or customers using the service. Every time this has happened, however, Backpage has been able to invoke Section 230 and win the case.

If this were an honest policy dialogue, it would center on the legality of prostitution in an age when information technology allows suppliers and customers to connect easily and privately. It might also focus on how online intermediaries actually make these illegal activities more visible and why law enforcement agencies are not making better use of that visibility.

But this is not an honest dialogue. First, the discourse is shifted from prostitution to human trafficking, and from that to trafficking in underage girls. If we unpack the propaganda, we get a series of illogical inferences and false factual assertions that goes something like this:

  1. A few online intermediaries facilitate prostitution (true);
  2. The demand for prostitution is the same as the demand for trafficked women, so most of the sex workers advertised on these platforms are trafficked (false);
  3. A large portion of the advertised sex workers are minors (false) and the number of trafficked minors is increasing dramatically (false);
  4. Eliminating Section 230 immunities will somehow make it easier to find and stop whatever trafficking in underage girls exists (false).

The best way to challenge this series of falsehoods is to look beyond the lurid claims of crusading politicians and cause-driven NGOs and government agencies, and examine the social-scientific literature on human trafficking. This research is readily available, but routinely ignored in these discussions.

The best place to start is a 2011 article in the Journal of Criminal Law and Criminology by sociologist Ronald Weitzer, as well as a more recent 2014 special issue of the Annals of the American Academy of Political and Social Science (Human Trafficking: Recent Empirical Research).

The conflation of all forms of sexual commerce with trafficking, Weitzer (2011) notes, is an ideological goal of a small school of radical feminist thought that has articulated what he calls “the oppression paradigm,” which “depicts all types of sexual commerce as institutionalized subordination of women, regardless of the conditions under which it occurs.” In this paradigm, there are no voluntary sex workers, and no economic migrants crossing borders in search of better income. There are only victims of patriarchy. Oppression paradigm writers deliberately conflate prostitution with coerced sex trafficking in order to “discredit prostitution and delegitimize systems where prostitution is legal and regulated by the government.” They also associate sex trafficking with pornography and strip clubs, and openly admit that the distinction between sex work and trafficking has hindered their efforts to abolish all forms of sexual commerce. As such, they make great allies for the cultural conservatives promoting SESTA, who want to use the power of the state to smite vice, and willingly create or exploit moral panics to further that agenda.

Given the size of the uproar, there is shockingly little empirical evidence to support the Internet -> prostitution -> child trafficking linkage. A Senate report cites all the usual sources saying that sex trafficking is a huge problem, but upon examination we find them repeating forms of guess work that social scientists have said “simply cannot be substantiated” and suffer from “glaring evidentiary problems.” (Weitzer 2014). Notably, the Senate report fails to provide any solid evidence of a) what percentage of prostitutes are actually trafficked; or b) what percentage of the trafficked are minors.

The Senate report attacking Section 230 claims that “Online advertising has… contributed to the explosion of domestic sex trafficking.” But the 2014 research report cited in support of this claim only says that the sex market has expanded. It doesn’t give any evidence about the increase in sex trafficking nor does it say anything about how or whether online advertising has contributed to it.

In a recent paper published on SSRN, Alex Levy, an expert in human trafficking at Notre Dame Law School, has argued that Section 230 actually helps stop trafficking because it allows law enforcement more visibility into what is going on. This is probably true, but it also fails to challenge the false narrative that online prostitute-customer matching is permeated with underage sex slaves. In the battle to save Section 230, it is essential for the deliberate conflation of online prostitution and trafficking in minors to be directly exposed and challenged. Policy driven by irrational and manipulative claims is never going to be effective and beneficial.

Section 230, which immunizes online service platforms from legal responsibility for content posted by their users, has long been considered a pillar of a free and open internet economy. Increasingly, it has also become a target for advocates of a more regulated and controlled Internet, because it prevents them from leveraging internet intermediaries to exercise control on their behalf. It would be a shame if the tremendous economic and cultural value of Internet-enabled services were tossed away based on such flimsy grounds.

One comment

  1. Alex Levy

    Thanks for your excellent post. I’d like to call your attention to the fact that in my paper you cite, I strongly emphasize the need to challenge the modern narrative about the proliferation of underage sex slaves in the prostitution market (and elsewhere). (Please see Section IV.)

    This is to say that I agree with you completely that policy in this area tends to be driven by manipulative claims that elide the difference between commercial sex (and other consensual sexual practices) and trafficking. I underscore this point in my article, and want to clarify my position here in hopes of avoiding further confusion.

    Alex Levy