House, Senate Take Different Paths on Website Liability Changes

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By Alexis Kramer

House lawmakers Dec. 12 advanced website liability legislation that diverges from a related Senate bill, complicating prospects for eventual passage of the legislation.

Social media giants, including Facebook Inc. and other tech companies, are closely watching the congressional effort to change the Communications Decency Act, which protects online platforms from liability for third-party content. House and Senate lawmakers have been rewriting their bills to pick up tech sector support. The once-similar bills are now taking substantially different approaches to the issue.The House Judiciary Committee approved H.R. 1865 by Rep. Ann Wagner (R-Mo.) after adopting a substitute amendment by Rep. Robert W. Goodlatte (R-Va.) that changed the original version’s language to require proof of internet publishers’ intent. Website operators that have the intent to promote prostitution will be fined, imprisoned for up to 10 years, or both under the amended version. The Senate bill by Sen. Rob Portman (R-Ohio), in contrast, would hold publishers to a “knowingly” standard and targets sex trafficking, not prostitution.

Wagner and Portman introduced the bills following a two-year Senate probe, led by Portman, into classified ad site Backpage.com LLC. Courts have repeatedly held that the law bars claims alleging Backpage enables sex trafficking on its site.

“What’s really needed here is to prosecute these people and put them in jail, and this bill is by far the toughest of any of the bills,” Goodlatte told Bloomberg Law after the markup. He said it was unclear when the full House might take up the bill.

Backers of the Senate website liability bill ( S. 1693) criticized Wagner’s measure.

“This legislation’s priorities are shamefully misplaced,” Sen. Richard Blumenthal (D-Conn.) said Dec. 12 in an emailed statement. “There is no good reason to proceed with a proposal that is opposed by the very survivors it claims to support, particularly when the alternative is a carefully crafted measure supported by all major stakeholders.”

The Senate bill, which also awaits a floor vote, would hold websites liable for knowingly facilitating sex trafficking. The Internet Association, whose members include Google and Facebook, supports both the Senate and House bills. But other tech trade groups including startup advocate Engine oppose the Senate bill’s knowingly standard. They argue it would create liability risks for companies making good faith efforts to rid their sites of illegal content. Portman said in a Dec. 11 emailed statement that he will work with the House to get his version enacted into law. “This new House proposal is opposed by advocates because they’re concerned it is actually worse for victims than current law,” Portman said. “And that’s the whole point of this effort—to help victims get the justice they deserve.”A group of 16 sex trafficking advocacy groups, along with individual survivors, opposed the amended House bill in a Dec. 11 letter to Goodlatte and ranking member Jerrold Nadler (D-N.Y.). The groups argued that the “intent” standard would make it “nearly impossible” for plaintiffs to bring successful civil claims against bad actors and that the bill precludes private rights of action in state court. Wagner disagreed with that characterization. She said Dec. 12 in an emailed statement that her revised measure is a “victims first bill that will shut down the websites that profit from modern day sex slavery, send the people who operate them to jail, and ensure that vulnerable people are never sold online.”Lauren Hersh, national director of World Without Exploitation, told Bloomberg Law Dec. 12 that none of the members of the anti-sex trafficking coalition, which consists of more than 120 groups, were consulted on the amended House bill. She said the coalition is asking the House to introduce a companion to the Senate bill.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bloomberglaw.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com

For More Information

Full text of the Goodlatte amendment at http://src.bna.com/uQ9.

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