Anti-Censorship Groups Tell Senate to Stop the ‘Stop Advertising Victims of Exploitation’ Act

A coalition of civil liberties, publishing,
and online commerce groups are asking Congress to oppose a piece of
anti-speech, anti-sex work legislation known as as the “Stop
Advertising Victims of Exploitation” (SAVE) Act. The bill is
allegedly aimed at thwarting human trafficking but in reality would
create harsh new criminal liabilities for websites and publishers,
allow federal agents to censor online ads, make it harder for adult
sex workers of all sorts to safely connect with clients, drive
traffickers further underground, and potentially expose anyone
advertising online to new privacy infringements.  

Introduced by Sens. Dianne Feinstein (D-Calif.) and Mark Steven
Kirk (R-Ill.) in June, the bill could prove tempting to the
incoming Senate. With its ostensible focus on helping child
“victims of exploitation”—particularly child sex trafficking
victims—the SAVE Act (S. 2536) is another bit of legislation ripe
for displaying bipartisanship. 

In a November 12 letter to the U.S. Senate, nine
organizations—including the American Civil Liberties Union, the

Internet Commerce Coalition, the Electronic Frontier Foundation, the
Association of Alternative News Media, and the National Coalition
Against Censorship—wrote to convey “strong opposition” to the SAVE
Act. Though they “share the vital goal of ending human
trafficking”, the groups humbly suggest the government use tools
already at its disposable—such as “the strong federal law that
already criminalizes such activity online”—to combat trafficking,
rather than placing broad, unconstitutional restrictions on
everyone’s free speech and privacy rights.

The SAVE Act would do several things: 1) create extensive
record-keeping requirements for any website, online services, and
print publication that hosts adult advertisements, 2) require
anyone posting an adult ad to submit photo identification, 3)
enable the Department of Justice (DOJ) to ban certain “euphemisms”
or “code words” from online advertising entirely, and 4) make
websites that host user-generated ads criminally liable should any
of those ads wind up promoting the sexual exploitation or abuse of
a minor. Under the law, the operator of a website such as
Craigslist that hosts thousands of new user-uploaded ads daily
could could face up to 10 years prison if any one of these is
eventually linked to child sex trafficking.

“While existing aiding and abetting crimes should certainly
reach someone who knowingly hosts a child trafficking ad with
the intent to further the trafficking venture,” the groups
note,

S.2536 would mean that websites and services hosting
user-generated content could be held criminally liable even if they
do not have actual knowledge that an ad for illegal activity
appears on their sites. 

Consequently, virtually any user-generated content host—like
Facebook, Twitter, eBay, Amazon or various online dating
sites—will have every incentive to prohibit content that falls
under the bill’s broad definition of “adult advertisements,”
which includes communications that are wholly or only partially
devoted to proposing lawful commercial exchange for lawful
services–in other words, speech that is
unquestionably protected by the First Amendment. At best,
user-generated content sites will default to taking down content
that is flagged as an “adult advertisement” as soon as a complaint
is lodged, regardless of whether the content appears to be
related to child trafficking or state child exploitation crimes, or
even fits the bill’s definition of “adult advertisement” at
all.

(…) And given the vague definitions and broad scope of
the new crime, S.2536 would create a situation ripe for selective
enforcement against sites and services that host disfavored – but
wholly lawful – speech.

In addition, any website, online service, or print publication
that hosts any content falling under the bill’s definition as an
“adult advertisment” would be required to obtain photo
identification from anyone posting the content. This requirement
manages to threaten ample people’s privacy while creating
additional regulatory burden for websites and publishers.
Non-compliance could result in up to five years in jail—and
noncompliance doesn’t even have to be intentional: 

S. 2536 does not require that the website operator, online
service, or publication know or intend to host “adult
advertising” content before imposing liability. If one of a site’s
millions (or billions) of users were to upload a post or an
image that fell under the bill’s broad definition and that site
operator had not already collected a copy of the user’s
driver’s license, the site operator would face a mandatory
minimum penalty of $250,000 and up to 5 years in prison. The
effects would be felt the hardest by smaller businesses, both
online and print, for whom one single violation triggering the
mandatory minimum penalty could very well mean bankruptcy, and
would serve as a disincentive to new start-ups

Rather than risk inadvertantly hosting an illegal ad without
having obtained the proper identification, many sites would simply
start requiring a government-issued photo ID in order to post an
ad. Don’t have one or don’t want to share that info? You can’t sell
your washer or advertise your pet-sitting services. Submit your ID?
Add your personal info into another insecure database. And the
terribleness of this bill doesn’t even end there… 

Further, because the recordkeeping requirement would also apply
to those who “place” advertisements as well as those who host them,
individuals who upload lawful content that falls under the bill’s
broad definition of “adult advertisement” would be likely to
violate the law en masse simply because they are not aware of it.
These individuals could become easy targets for prosecution for
failure to comply with the recordkeeping requirement, diverting
attention away from pursuing traffickers and those engaged in the
actual victimization of children.

And perhaps most egregiously of all, the SAVE Act would empower
the DOJ to ban the use of certain words in all online
advertising. If the agency determined that something was a
potential euphemism or “code word” for trafficking, web operators,
publishers, and digital ad networks would be forced to censor ads
containing these words or phrases. “Such a requirement is
unworkable in practice,” states the ACLU et al.’s letter, “would
give the Department of Justice an enormous amount of discretion to
censor online speech, and would not withstand scrutiny under the
First Amendment.”