I Support A Free And Open Internet. We’re Making SESTA Harder Than It Needs To Be.
In a Senate office on Thursday morning, we spent the previous fifteen minutes describing in grotesque detail the ecosystem of online distribution services fueling the sex trafficking economy in the staffer’s home state. With a few dozen screenshots and graphs, we walked through how large and diverse it had become and how brazen and graphic the commerce had grown to be. As these meetings tend to go, the data were received by wide, disbelieving eyes and deep, near silent inhalation.
I tried to open the discussion back up in a spirit of conciliation. “Look, I get that this is a tough needle to thread,” I began.
Exasperated, the Senate staffer interrupted me, “No, Rob. It really isn’t.”
Eyes still fixed on the hockey stick growth graph on my laptop, the staffer muttered,“Tech is making this harder than it needs to be.”
If you care about a free and open Internet, you’ve seen the emails, tweets, blog posts, Facebook threads, op-eds and open letters about a bill in the Senate proposing to amend the Communications Decency Act. Dubbed by its authors as the Stop Enabling Sex Traffickers Act (SESTA), it intends to adjust Section 230 of the CDA to cease the limitation of liability it extends to services that knowingly facilitate sex trafficking.
The bill’s introduction comes on the heels of a series of successful criminal defenses by a site called Backpage, which is the current dominant website for prostitution advertising in the United States. In each case, Backpage and its corporate officers argued successfully that since the advertisements it ran were created by its users, the service and its employees were protected by the same limitation of liability enjoyed by any user generated content site from Facebook to YouTube.
In the wake of those successful defenses, a vibrant ecosystem of online services have sprung up to make distribution in the sex trafficking economy shockingly low cost for market-spanning reach. That ecosystem became so large and pervasive I left a 13 year career in software startups back in December to work on combating the problem full time.
During that rollercoaster of startup shenanigans, I invested a significant amount of time and a modest amount of treasure to preserve a free and open Internet. Joining a host of dedicated and thoughtful technologists from scores of companies and organizations, we all applied our acumen to put a stop to SOPA and PIPA, save net neutrality and preserve our right to privacy online. As I was leaving my last firm, one of my colleagues in finance joked we racked up what may be the only seven digit telephone bill in the history of Internet advocacy.
The free and open Internet is not something we were given — it is something we all earned together through considered action against interests that were far more powerful and well funded than we.
With that said, much of the debate about SESTA has become unnecessarily apocalyptic. If you do care about the Internet the same way I do, I’d ask for you to consider some of what I’ve learned about human trafficking while you’re deciding what to do about this bill.
This one is a long walk.
But this is also a big problem.
While any illicit economy is difficult to quantify, even the conservative estimates paint the same picture:
Human trafficking is the fastest growing organized criminal enterprise in the world.
Whether looking at observable money flows, victim reports or prosecutions, post facto data all suggest startup level growth of human trafficking. That continues to accelerate in 2017 and is likely at a historic peak.
Three factors are powering that growth.
First factor: a much bigger economy than you think. The International Labor Organization provides the most rigorous estimate of profit in the economy I’ve seen. As the United Nations agency representing workers globally, their 2003 report estimated the global human trafficking economy was producing $32 billion USD in profit annually. In their 2014 report, that annual profit ballooned to $150 billion.
To place in reference to the global consumer brands you and I would know, human trafficking globally produces more annual profit than Apple, Microsoft, Google, IBM, Cisco, General Electric, Disney, Boeing, Coca-Cola and Toyota combined.
Of that total, forced sexual exploitation represents the majority of the observable money flows at $99 billion USD globally, with the developed world contributing over a quarter of that total. Those estimates would suggest sex trafficking makes more money than recorded music in the United States.
That massive amount of profit manifests on the ground with even small, unsophisticated operators amassing astonishing wealth. Upon his arrest in 2013, an ultimately convicted sex trafficker in New York was in possession of several luxury cars and dozens of bricks of cash totaling over $200,000 USD.
Sean Brown, it should be said, was not a criminal of the first rank. But with his operation of three, sometimes four victims, a free email account and a few burner phones, he was able to collect the wealth seen in a mid-size narcotics or weapons trafficking operation.
Prostitution may be a low level crime, but sex trafficking pulls in more money that most people know.
The second factor contributing to the hypergrowth of the human trafficking economy is its low risk of incarceration. An thorough qualitative study by the Urban Institute in 2010 highlights the perception of risk by 73 individuals charged or convicted of crimes including compelling prostitution and human trafficking. The perception is concisely captured in the quotation from an interview with one pimp:
You don’t get locked up for pimping. Who gets locked up for pimping?
Another respondent highlighted the flight from trafficking narcotics to sex:
The game has changed. It’s all ex-drug dealers. Everyone who is an ex-drug dealer is in the game.
The popular perception developed because it is true. The 2017 Trafficking In Persons Report released by the State Department listed the prosecutions and convictions it was able to find in the whole of North America from 2010 to 2016.
The stunning part of these data is the majority of those prosecutions and convictions are drawn from US federal courts where Assistant US Attorneys hold conviction rates ~95%. Even the most selective prosecutors in the country struggle meeting the high burden of proof to convict these cases. For local prosecutors, where way more of these cases are tried, the conviction rate is likely much lower, though nobody has yet managed to collect extensive data.
If I get caught with a kilo of cocaine in Brooklyn, I’m going to jail 8 out of 10 times. If I get caught trafficking a human being, the odds aren’t much better than a coin flip.
Cheap and Easy Distribution
The final factor — the one SESTA intends to address — is the ease of entry and operation afforded by an explosion of online distribution services. While much of the current conversation around sex trafficking in the US centers on the popular advertising site Backpage, the ecosystem that connects supply and demand online in this economy has grown very fast and is likely at historic highs.
That ecosystem provides sex traffickers two main advantages over other illicit trades. The first is low capital requirements for entry. If I want to sell narcotics in my home borough of Brooklyn, buying a pound of product is going to run anywhere between $10,000 USD to $34,000 USD:
The near-invisible sliver of blue in the graph above is for the $15 burner phone and the $3 Backpage ad to get started in trafficking a human for sexual exploitation.
While the earning potential for sex trafficking is every bit as high as narcotics, the startup cost is near zero.
And for that $18, the advertiser gains near immediate access to the entire geographic market. One detective I worked with placed an ad in Manhattan with copy and photos suggestive that the provider was a minor.
In one hour, that advert received 450 unique responses. To visualize that frequency, each pulse below is another buyer knowingly looking to buy sex from an underage girl.
In a couple hours of texting, an entire week of business could be booked off that $3 ad. As dark as it is to speak in such terms, no other illicit trade is as efficient.
To sum up the macroecon forces fueling sex trafficking, currently the perpetrator:
- Makes as much money as drugs or guns
- Hardly ever gets caught
- Gets started for less than the cost of dinner in Manhattan
- Can reach the entire buying market near instantly
The money was the wood, the risk was the fire. As we’ll see, the cheap and easy distribution was the jet fuel.
The National Center for Missing and Exploited Children (NCMEC) were one of the first to recognize that growth. NCMEC is the largest national non-profit providing services to America’s vulnerable youth. From 2010 to 2015, the number of child trafficking reports they received grew 9.4x. In a single year, they saw the proportion of trafficking victims in the children they serve go from one in six to one in five.
The growth in the prevalence of sex trafficking victims was foreshadowed by the growth in volume on the online distribution services where they are advertised and reviewed. Nearly every site in this ecosystem in nearly every market in the United States started to increase in content volume right around the time Backpage started winning cases.
From the dismissal of the first civil case in Missouri in September 2010 to their successful countersuit against Maricopa County in 2013, the non-Backpage sites fueling this economy started to boom. This graph reflects that upturn swing for one such website for one major market in the United States.
While the y axis is hidden to prevent identification, this same trend can be observed in every market with every website that existed during this period in the economy. Once it became evident websites were immune to prosecution for serving content in this economy, the number of users and the amount of content accelerated.
Once Backpage’s legal tide began to rise, all boats providing the online distribution to this economy rose with it.
[Trigger warning: the following content becomes graphic.]
Backpage is the dominant example of an online distribution service being used in the policy discussion around SESTA right now, a pole position well earned. Now approaching a dozen indictments, Backpage also attracted a crusade from famed New York Times columnist Nicholas Kristof, a self-published ebook guide on Amazon and appears to be a market of advertisers unto themselves, as demonstrated by the marketing on of a popular Bitcoin exchange. It was also the subject of Mary Mazzio’s insight documentary I Am Jane Doe, chronicling journey of several mothers whose children were trafficked on Backpage. The film could be credited fairly as an organizing force around the latest legislative activity to bring the site down.
But while the SESTA debate is laser focused on one site, Backpage is one player in an ecosystem that has grown far larger and gotten more diverse than many know. These sites fall into a few categories.
As difficult a descriptor as it is, Backpage and other advertising sites like it serve the supply side of the economy. Providers are posted with brief, unstructured descriptions accompanied by 4–8 photographs, usually with a phone number or a free-mail address for contact.
This part of the ecosystem does have a fair number of straight up Backpage/Craigslist copycats, but some trends are emerging as this side of the market stratifies.
Sites like Eros (NSFW) serve the higher end of the market.
Sites like Escort Phone List (NSFW) target the lower end of the market.
The same proprietor has other skins of the same site, like Escorts in College (NSFW) to target providers close to the age of consent.
MassageTroll (NSFW) caters to the middle of America, drawing a surprising number of listings for even minor markets.
Even Backpage’s core user experience is drawing competent competition, with sites like cityXguide (NSFW) grabbing share while Backpage’s volume declines with its continued legal attention.
If sites like Backpage represent the supply side of the economy, the hobby boards represent the demand. “Hobby” being a euphemism for the purchase of commercial sex, these sites provide a Yelp-like experience for the “hobbyist” (aka buyer) to rate the service they received.
Like Backpage, users can search for providers in their geography. One that is popular on the East Coast is The Erotic Review (NSFW).
Listings for the services are far more brazen and overt than one would ever see on Backpage.
Users go into graphic detail rating the appearance of the provider. On many sites, these descriptions cannot be contested.
The physical description is followed by a user supplied and rated list of services, feeling less like a Yelp and more like a menu.
The Erotic Review is far from the only one. RubMaps (NSFW) is popular on the West Coast.
ECCIE (Escort Client Community Information Exchange, NSFW) is growing in popularity, especially in the Midwest.
A growing number of hobby boards are catering to specific markets or establishment types. A popular one for Asian massage parlors is SpaHunters.
Then there are a growing number of sites that serve the distributors themselves. This growing class of services don’t connect supply or demand as much as provide ancillary services to assist with distribution.
This economy has its own SquareSpace clone with EscortDesign, a WYSIWYG website builder focused on high quality design.
Paxful, a Bitcoin exchange for selling prepaid gift and debit cards for BTC, markets directly to Backpage advertisers. It went so far as to create a nine minute primer on how to make a trade and purchase a Backpage ad, complete with click-by-click guide through Backpage’s own interface.
Tip of the Iceberg
These sites are only descriptive of genres in this online ecosystem. Nearly all of them have four or five blatant copycats and many have two or three analogues that are specific to particular cities. For each listed here, there are dozens more that could be characterized as similar, all rising and falling actively in a robust, mature and highly competitive online economy.
I selected these to share as I’ve seen at least two trafficking investigations involve each of them in some way.
Why The CDA?
So we know that the trafficking economy is huge and growing at astonishing speed. We also understand that economy fueled by a diverse and competitive online distribution ecosystem. A fair question is how any of this is the fault of the Communications Decency Act.
These sites and the economy they serve haven’t grown because of the letter of the CDA, but the case law that grew around the decisions in Backpage’s favor.
After Maricopa County got its case against Backpage dismissed with the court citing the CDA, Michael Lacey and Jim Larkin — the real money behind the site — countersued the county for false arrest.
After a year of tussling, they eventually got the county’s board of supervisors to agree to a $3.75 million USD settlement.
That near $4M counterpunch effectively chilled all law enforcement activity related to any site that looked like a Backpage. The possibility of a general fund getting hit with that kind of suit combined with the low probability of breaking through a CDA defense made the risk of taking on any of these sites too high for nearly any agency to bear.
Even the few with the resources and moxie to try prosecuting these sites are told explicitly by the courts that the Communications Decency Act is ironclad. In the still ongoing criminal case brought by former California Attorney General and current US Senator Kamala Harris, the trafficking charges against Backpage were tossed a month later. Prosecutors came back with new evidence to include trafficking, pimping and financial fraud charges.
If and until Congress sees fit to amend the immunity law, the broad reach of section 230 of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking.
This 18 page ruling came after months of deliberation and research, attempting to put in the clearest judicial language possible:
The only way to prosecute Backpage for trafficking— and any site like it — is an act of Congress amending the CDA.
Tech’s Legitimate Concern
The subject lines of the email campaigns read “Wikipedia and Reddit shutting down?” and “The Senate is trying to kill your Internet” with calls to action linking to microsites like StopSESTA.org. If it sounds in tone and timbre like the successful campaigns of the tech community against SOPA and PIPA, your ears are true. Many of the same advocacy organizations that led that fight are arguing forcefully against SESTA. Less forceful but present are the largest tech companies themselves who stand opposed but at a distance measurably removed than what we saw with SOPA and PIPA.
Some of the coverage of this dynamic is unproductively cynical. They suggest that Facebook and Google are funding intermediaries with the sinister intention of spending on lobbying now to avoid legal liability later. They further suggest the only large tech firms to come out in favor are first gen Silicon Valley incumbents looking to exact revenge on Big Social and Big Search’s unicorn cohort.
I can’t imagine those kind of petty machinations last long when confronted with the survivor testimony that has accompanied this legislation. I’m sure most of the genuine concern by these top lawyers at a big tech companies is the rightful worry that small changes in fundamental legislation can have big consequences.
The fulcrum of the CDA lever is far to the edge of the effort arm. A little movement now will cause a lot of effect later, as we are currently learning with the CDA’s entirely unintended immunity for sites that are promoting sex trafficking.
Solutions to the Problem of Scope
With that legitimate concern in mind, there are some dials to use when fitting an amendment to the CDA that should be considered when trying to minimize the extension of liability to sites that are legitimate. The sites that are causing the real growth in the economy are far removed the legitimate consumer Internet you and I use.
A scalpel is what is needed, not a broadsword.
First we should consider the high burden of proof “sex trafficking” legally represents. Sex trafficking is not a new synonym for prostitution. Every state statue in the union characterizes sex trafficking as being prostitution where either 1) the victim is underage or 2) the victim was participating involuntarily, compelled by force, fraud or coercion. Further, it bears the same proof burden as any criminal charge. Force, fraud or coercion must be proven beyond a reasonable doubt.
Just using the two words “sex trafficking” in an amendment limits scope of liability a great deal.
A second consideration to limit this legislation’s scope is proportion of victims. NCMEC reported that out of all of its ~10,000 reports of child trafficking reports it now receives each year, 73% involve a single website: Backpage. Proving a pattern of victimization emerging from a service requires a significant amount of evidence and would afford a legitimate site many opportunities to correct its practices.
Further, there are no casual participants in this economy online. The amount of financial gymnastics these operations need to perform in order to keep taking credit cards absorbs the entire financial scope of these operations. Setting a high proportion of an organizations revenues that come from prostitution related advertising, reviewing, marketing or sales that would be required to prosecute would effectively rule out any legitimate site like Google or Facebook while narrowly targeting the actors above.
Finally, in the back and forth around this bill, what the operator knows about the crime is being used as the main lever. Called mens rea, it sets the amount of volition the operator demonstrated while running the site. Much of the language proposed by the tech community suggests that the operator has to know an individual person is being trafficking to merit prosecution under this new law.
The likelihood a successful prosecution could be raised against the sites above with such a standard is low. However, if knowledge of prostitution was present coupled with some percentage of the organization’s overall revenue, that legislation would be successful in going after these sites.
A prime example of such was in the Portman / McCaskill report on Backpage. In it, Senate investigators discovered communications by Backpage executives via task management tickets to implement filters for certain links suggestive of underage trafficking victims due to impending coverage by a news outlet.
The URLs and phrases Backpage started stripping out were related to the broader underground commercial sex economy. This kind of paper trail is one that no operator of a legitimate online service would be worried about leaving behind.
These are only a few considerations for limiting the scope of a change to the CDA. The more one looks at these sites and how the operate, the more it becomes clear there are observable patterns of criminal volition and execution that can be codified in legislation.
This slope just isn’t that slippery.
Further, every senator on every committee touching this legislation is keen to get feedback directly from tech companies themselves on specifically what their concerns are.
This is about the only reasonable policy discussion that would produce meaningful compromise you’re going to find in the new Washington.
What You Can Do To Help
Hey. You made it all the way to the end. On this Internet, that must mean you care about this a whole lot.
The problem is big and growing. The services pouring on the fuel are impervious to prosecution. An act of Congress needs to happen to change that. And it can happen without wrecking the Internet you and I care so much about.
There’s much you can do to help.
1) Share The Data
Policymakers on this bill are starved for information on the impact these sites are having. Sharing this piece and writing your own will get the data in front of the decisionmakers considering this legislation. The hashtag #CDA230 is active on Twitter as hearings are being held.
2) Ask About SESTA At Work
The only real remaining opposition to SESTA are big tech companies. If you work at a big tech company, ask your counsel and leadership where it stands on the issue and why. Share what you’ve learned about the issue, why it is important to you and why you think compromised language can address their concerns.
3) Call, Write and Visit Your Congressional Representatives
Given the political climate, you’ve got a lot of tools to help you call the folks representing you in Congress. 5 Calls is a rad tool made by some great developers for calling your representative — just put in your zipcode and go. ResistBot — also made by some great developers — will take the pen, postage and pain away from writing your representative. Just text “resist” to 50409 and it’ll walk you through everything in seconds.
Finally, if you are around or going through Washington this month, consider carving out an hour to visit in person. Nothing matters to your representatives quite like your physical, living, breathing presence in the office where they represent you.
Regardless of medium, you’ll be the only person asking for reasonable compromise that they’re likely to talk to this year.
They will be super stoked to hear from you.
4) Make Some Sausage
Finally, if you are representing a party concerned about the impact of amending the CDA in a legal or governmental relations capacity — please hit me up. There is more information I’d love to share with you about the current state of the online trafficking economy that I think you should know. Further, there are a number of Senate offices who are keen to hear about your very specific concerns around the language of the legislation.
A free and open Internet and a framework for prosecuting sites promoting sex trafficking are not incompatible. The CDA can be amended in such a way our Internet remains free and the proprietors of these sites go to jail.
The free ride these remoras have enjoyed so far should be offensive to anyone that cares about the Internet. After decades of education and advocacy and protests online and off, a small group of immoral operators are making literal millions off of the involuntary sexual slavery of others.
Ending that free ride doesn’t have to be hard.
All it will take is technologists like you coming to the table.