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Website liability legislation aimed at combating sex trafficking is raising constitutional concerns as it moves through Congress.
H.R. 1865 by Rep. Ann Wagner (R-Mo.) would revise a law that protects internet publishers from legal liability stemming from users’ content, and hold them liable for intentionally promoting prostitution and knowingly facilitating sex trafficking. The bill says some of its provisions apply regardless of whether the alleged conduct occurred before or after the bill’s enactment.
Passage of the bill as drafted could run afoul of the U.S. Constitution, attorneys told Bloomberg Law. It would expose websites to increased liability for conduct that they didn’t know was illegal at the time, they said. The retroactive liability provision could be an obstacle to the bill becoming law.
The House passed the bill Feb. 27 with an amendment that inserts language from a related bill by Sen. Rob Portman (R-Ohio). The bill awaits a vote in the full Senate, which could happen in the coming days.
The Justice Department told House Judiciary Committee Chairman Robert W. Goodlatte (R-Va.) that it supports the bill. But the department expressed concerns that the retroactive liability provision could violate the ex post facto clause, which prohibits the passage of laws that retroactively punish conduct that was legal at the time it occurred.
“Any such ex post facto clause is likely to be found unconstitutional,” Sonali Maitra, a technology attorney at Durie Tangri in San Francisco, told Bloomberg Law.
Courts generally consider principles of fairness in determining whether a retroactive provision is constitutional, Maitra said. “Here, there would be some pretty serious fairness problems in imposing retroactive liability for internet intermediaries that planned for and operated in good faith under a totally different system of liability,” she said.
Sophia Cope, a staff attorney at the Electronic Frontier Foundation, told Bloomberg Law that the provision is “problematic” on its face. “It’s fundamentally unfair that conduct that is currently protected from liability will be deemed to have been illegal once this law is passed,” she said.
Attorneys say the language would also be counterproductive to the aim of the legislation—to reduce sex trafficking content on the internet.
The bill’s language would deter websites from reporting prior instances of sex trafficking for fear of liability, Kevin M. Goldberg, an internet law attorney at Fletcher Heald & Hildreth PLC in Virginia, told Bloomberg Law. The legislation would also deter websites from reporting future instances of illegal content for fear of law enforcement finding older illegal content, he said.
Still, lawmakers likely won’t change the bill’s language before the Senate vote. Portman spokesman Kevin Smith told Bloomberg Law that the House and Senate are aware of the DOJ’s concerns and “simply disagree.”A spokeswoman for Wagner declined to comment.
Tech companies are concerned about the retroactive provision. The bill “includes a provision the Department of Justice has said is unconstitutional,” Carl Szabo, vice president and general counsel at e-commerce trade group NetChoice, said in a statement. “At a minimum, Congress should not deliberately pass unconstitutional legislation. This provision can easily be fixed through a simple amendment and clear report language.”
Lawmakers may be able to make a case that the language at issue doesn’t run afoul of the Constitution.
Attorneys say the bill is not a clear-cut case of punishing conduct that was legal prior to the law’s enactment.
“It’s not as simple as saying this used to be legal and now it’s not,” Alexandra Levy, an adjunct professor at the Notre Dame Law School, told Bloomberg Law. “What’s being taken away is a legal defense; there’s not necessarily a change to the legal status of the underlying act.”
The Congressional Research Service wrote in a memo to Wagner that the provision “does not appear” to violate the ex post facto clause because the bill wouldn’t create a new federal crime.
Lawmakers’ classification of the legislation as a “clarification” of existing law—Section 230 of the Communications Decency Act—could allow them to invoke an exception to the ex post facto prohibition, Daniel Woodring, an attorney at Woodring Law Firm whose practice includes constitutional law, told Bloomberg Law.
The bill says that it would amend the law “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.”
If lawmakers frame the bill as a clarification, that would be a “fairly big exception,” Woodring said. But it may be difficult to argue the bill is a clarification of a law that was passed more than two decades ago, he said.
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