Senate Website Liability Bill Lacks Teeth, House GOP Lawmaker Says

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By Alexis Kramer

The sponsor of a House bill that would hold websites liable for sex-trafficking-related content is arguing that her measure is better than a related Senate bill that lawmakers there have changed to win some tech sector support.

“We want to make sure we have a piece of legislation that’s signed into law that’s going to have real teeth behind it,” Missouri Republican Rep. Ann Wagner told Bloomberg Law after testifying at a House subcommittee hearing examining efforts to combat online sex trafficking.

Wagner’s stance signals that it may not be easy for the two chambers to agree on a common approach on the legislation, which is being closely watched by social media giants such as Facebook Inc., Twitter Inc., and other tech companies.

Wagner’s bill ( H.R. 1865), would hold websites liable for third-party content if they showed reckless disregard that the content would further sex trafficking. The legal standard in her bill is stronger than the Senate measure ( S. 1693) by Sen. Rob Portman (R-Ohio), which would hold websites liable for knowingly assisting in sex trafficking, she said.

The knowingly standard in the Senate bill—while “a step in the right direction”—would likely fail to hold bad actors accountable because evidence would be hard to collect, Wagner said during the House Energy and Commerce Communications and Technology Subcommittee hearing.

Both bills would amend Section 230 of the Communications Decency Act, a 21-year-old federal law that grants websites broad immunity for content posted by users. The law has consistently shielded advertising site Backpage.com LLC from claims that it enables sex trafficking through its classified ads.

“We’re pleased with the significant progress being made in the Senate and hope to see a quickening pace of action in the House,” Portman spokesman Kevin Smith told Bloomberg Law via email.

Wagner told the House subcommittee that while it may be possible to prove Backpage knowingly assisted in a sex trafficking violation, “it is not possible to gather this level of evidence for the hundreds of other websites” that profit from this crime.

“Prosecutors across America have told me that any legislation that depends exclusively on the ‘knowingly’ mens rea standard to hold websites accountable will merely be a Washington, D.C. ‘feel good’ exercise,” she said.

Wagner’s bill hasn’t advanced. The Senate Commerce, Science and Transportation Committee approved Portman’s bill Nov. 8 with an amendment that changed the language from “knowing conduct that assists, supports, or facilitates” sex trafficking to “knowingly assisting, supporting, or facilitating” such crime.

Lawmakers made the change to address concerns from some tech companies that they could be held liable for merely knowing that sex trafficking is present on their sites. The Internet Association, a trade group that represents Facebook and Alphabet Inc.'s Google, supports the change. But other tech groups still oppose the legislation.

“Neither bill adequately addresses the liability issues that would discourage ongoing efforts to stamp out abuse, and would hit smaller services the hardest,” Computer & Communications Industry Association Vice President Matt Schruers told Bloomberg Law via email.

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

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