Author:Prylinski, Kirsten M.
  1. Introduction

    Human trafficking is the largest manifestation of slavery today, generating billions of dollars each year in illegal proceeds. (1) When first confronted with stories from the news or facts about human trafficking, it seems like there is no way that it could be true. (2) How is it possible that women and children are being bought and sold online without a trace? (3) Nevertheless, the reality is that human trafficking, and more specifically sex trafficking, is happening at rates that both the government and the public cannot keep up with. (4)

    Human trafficking is a hidden crime. (5) It often includes forced labor, domestic servitude, forced marriages, and most commonly, commercial sex. (6) Globally, the most common form of human trafficking is sex trafficking. (7) Sex trafficking encompasses activities related to prostitution, commercial sexual activities, sex tourism, and pornography. (8) it undermines core human rights, as well as destroys and threatens the safety of communities. (9) With the aid of new technologies, women and children are being bought and sold online without a trace. (10) Today, these new technologies continue to outpace the law, taking human trafficking into the deepest corners of the internet, undetectable by law enforcement. (11)

    In 2000, Congress discovered that 700,000 persons annually, primarily women and children, were being trafficked within or across international borders. (12) in 2018, it was estimated that over 100,000 human trafficking victims had been identified globally, thousands of which came in and out of the united states. (13) With the rise of the internet, the market for sex trafficking went global, with the internet becoming the mecca. (14) specifically, many victims meet their traffickers over the internet by being coerced with promises of a better life. (15) Nevertheless, the relationship will quickly turn toxic with the trafficker becoming controlling and abusive. (16) In 2016, the National center for Missing and Exploited children reported an 846% increase from 2010 to 2015 in reports of suspected child trafficking. (17) This increase was found to be directly correlated to the increase in the use of the internet in selling children for sex. (18)

    The advancement of technology is fueling sex trafficking, and legislation is not moving fast enough. (19) In 2017, Congress passed the Allow states and Victims to Fight online sex Trafficking Act ("FOSTA"). (20) This Act was passed with the purpose of amending the Communications Decency Act of 1934, and no longer granting immunity to internet service providers ("ISPs"), whose websites "knowingly" publish illegal sex trafficking content. (21) in hindsight, FosTA is a progressive enactment to help stop online sex trafficking, but this Act has unintended consequences. (22) For instance, instead of promoting companies to better ensure there is no illegal sex trafficking content being published on their websites, these companies are instead taking necessary steps to avoid liability for "knowingly" facilitating online sex trafficking. (23) Therefore, Congress needs to keep working to not only put in place the proper preventative measures, but to also catch up or get ahead in the technological race that is currently being won by sex traffickers.

  2. History

    1. The Rise of Technology in Sex Trafficking

      Before the internet became mainstream, newsgroups and newspapers were the main media outlet for sex trafficking advertisements. (24) However, with the rise of technology and the internet, there has been a radical transformation in the landscape of sex trafficking. (25) With the use of the internet, sex trafficking can be conducted online. (26) By the mid 1990s, women and children were being marketed worldwide. (27) in 1994, the first prostitution website was launched. (28) This website enabled perpetrators to market women for services around the world. (29) Shortly after the establishment of prostitution websites, the "World Sex Guide" launched online. (30) Here, men from around the world could leave reviews on women based on how easily they were able to coerce them in to "painful, risky, or humiliating" sex acts. (31) This later led to the creation of video chatting where with a little less than the click of a mouse, perpetrators had access to victims. (32)

      The urgency to end sex trafficking came to the world's attention in 1999, due to the establishment of online rape camps. (33) These rape camps were live video chats, where viewers were given the capability to request acts of sexual assault and torture that were then carried out on the victim. (34) With new video chat technology, perpetrators were able to record and re-watch the once live sex shows. (35) This technology allowed video recordings to be used on websites as a way for traffickers to market women and children. (36) These new technological capabilities captured the attention of the legislature and compelled them to act. (37)

    2. The Communications Decency Act of 1996

      In 1996, the Communications Decency Act ("CDA") was enacted by Congress as a way to regulate the distribution of obscene or indecent material on the internet. (38) The Act states that "no provider or user of an [ISP] shall be treated as the publisher or speaker of any information provided by another information content provider." (39) Further, Section 230 of the CDA protects websites based on a "good faith" effort to report or block material that the provider considers to be "obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected." (40) Essentially, Section 230 of the CDA is providing broad immunity to ISPs. (41) Nonetheless, the Ninth Circuit held that if a website plays any part in editing content to make it more acceptable for posting purposes, then they can risk losing their immunity under the CDA. (42) With Section 230 of the CDA in play, the courts have struggled to assign liability to those truly responsible for the buying and selling of sex online. (43)

    3. The Victims of Trafficking and Violence Protection Act of 2000

      In 2000, the Victims of Trafficking and Violence Protection Act ("TVPA of 2000") was enacted by Congress. (44) This Act served as the first federal law to protect victims and prosecute traffickers. (45) Moreover, along with this bill came the Interagency Task Force to monitor and combat trafficking. (46) The Task Force was established with three objectives: (1) to collect data and research on domestic and international trafficking; (2) to evaluate the progress that the United States and other countries were taking to prevent, protect, and prosecute human trafficking; and (3) to cooperate with other nations as an effort to end trafficking globally. (47)

      The TVPA of 2000 was not only meant to help combat human trafficking, but to also give aid to women who were prone to becoming victims of sex trafficking. (48) The TVPA of 2000 accomplished this goal through establishing various prevention programs with the objective of deterring prostitution. (49) Further, the Bill established the "T Visa," which allowed non-residents who were victims of sex trafficking to become temporary residents of the United States, and be eligible for the Witness Protection Program. (50) Additionally, the TVPA of 2000 made all forms of human trafficking a federal crime. (51) Not only did the United States seek to end trafficking, but they sought to aid and support those who had been victimized by such acts. (52)

    4. Trafficking Victims Protection Reauthorization Act of 2003

      In 2003, the Bush Administration enacted the Trafficking Victims Protection Reauthorization Act ("TVPRA of 2003") to further combat human trafficking. (53) This reauthorization added to the TVPA of 2000 by authorizing over $200 million to combat human trafficking and renewing the United States' commitment to ending human trafficking. (54) The TVPRA of 2003 gave victims even more access to aid, and allowed them to bring civil suits against traffickers in order to recover punitive damages. (55)

    5. Trafficking Victims Protection Reauthorization Act of 2013

      By 2012, President Barack obama stated that human trafficking was "the most pressing human rights issue of our time." (56) This stark realization warranted the enactment of the Trafficking Victims Protection Reauthorization Act of 2013 ("TVPRA of 2013"). (57) Different from the previous Victim Protection Acts, this Act focused on the rapid growth of technology and how it affected human trafficking. (58) The goal behind the 2013 Reauthorization was to initiate the use of technology to combat trafficking online. (59) Law enforcement would use electronic surveillance, and data from cellphones or computers to monitor and find suspected perpetrators involved in human trafficking. (60)

      Additionally, soon after the passing of the 2013 Reauthorization Act, ISP tech companies in the private sector got involved in the fight against human trafficking. (61) ISP tech companies were forming company-wide initiatives to detect traffickers and supply victims with resources to get help. (62) Nonetheless, ISPs operate as neutral forum websites where users can post their own content to the site. (63) Though some websites are enacting protocols to stop trafficking, other websites are enabling buyers and sellers of sex to maintain their anonymity, while remaining free of legal consequences. (64)

    6. The Allow States and Victims to Fight Online Sex Trafficking Act

      On March 21, 2018, Congress passed into law the Allow States and Victims to Fight Online Sex Trafficking Act ("FOSTA"). (65) This Act clarified that the CDA "was never intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and websites that facilitate traffickers in the sale of unlawful sex." (66) The FOSTA states that to "participate" means to "knowingly assist, support, or facilitate" sex...

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