Law Prof Alexandra Levy Discusses the Fight to Save Section 230 and How SESTA Threatens Trafficking Victims

Alexandra Levy is an adjunct professor at the University of Notre Dame Law School (courtesy of Alexandra Levy)

As the U.S. Senate Commerce, Science, and Transportation Committee prepares to discuss the Stop Enabling Sex Traffickers Act (SESTA) this Tuesday, September 19, it’s a safe bet that few of the bill’s 27 co-sponsors are familiar with the work of legal scholar Alexandra Levy.

That’s unfortunate. Published this past spring in the Wake Forest Law Review, Levy’s treatise “The Virtues of Unvirtuous Spaces” is an intellectual machine gun that blasts holes through Congress’ latest effort to defang Section 230 of the federal Communications Decency Act (CDA), which shields interactive websites from liability for content posted by their users.

Levy’s assiduously sourced article eviscerates the arguments of those who want to undermine Section 230  in order to combat human trafficking. Drawing a striking parallel between the current anti-Section 230 rhetoric and the early 20th-century moral panic about “white slavery,” Levy counters that the existing law actually helps law enforcement rescue victims.

An attorney and an adjunct professor at the University of Notre Dame Law School, Levy created and teaches a course called “Human Markets,” in which she addresses issues concerning civil liberties,  black markets, human trafficking, and the relationship between illegal commerce and
online intermediaries.

Her work has drawn praise from the technology-policy blog Techdirt and from Eric Goldman, a professor at the Santa Clara University School of Law and director of that school’s High Tech Law Institute. Goldman recently published a column by Levy on his Technology and Marketing Law Blog.

Levy graciously agreed to an interview, responding to our questions via email.

What was the genesis of “The Virtues of Unvirtuous Spaces”? 

I wrote this article because the role of Backpage (and other intermediary websites) is so central to the current discussion of trafficking. My goal was to look at why we’re inclined to see them as blameworthy, and argue that that’s actually misguided.

Published in 1910, Fighting the Traffic in Young Girls is one of the books Levy cites in her article (source: Library of the University of Illinois at Urbana-Champaign)

Though you’re staunchly opposed to sex trafficking, you part ways with the anti-sex-trafficking community when it comes to its demonization of sites like Backpage. How do you explain that yawning chasm? Why is Backpage not the bugbear they claim it is?

My position is not really all that different when it comes to websites. Any website that participates in human trafficking is committing a terrible crime and should be held accountable. That’s fully consistent with the law — it’s a common misconception that websites have some kind of immunity for criminal participation.

What the law does say is that websites (including Backpage) can’t generally be held liable for content they publish but don’t create. That means, for example, that if someone plans a crime by hijacking the comments section of a random Facebook post, the victim shouldn’t then be able to sue Facebook. This makes intuitive sense from an accountability standpoint. As far as we know, Backpage just acts as a conduit — and that’s why it’s not a bugbear. If it did participate in trafficking, that would be a completely different story. But so far, that hasn’t proved to be the case.

I know you read the recent piece by Nicholas Kristof in the New York Times, “Google and Sex Traffickers Like Backpage.com,” wherein he takes Google to task for lobbying against SESTA. What did you think of that piece and the notion that actively opposing SESTA is the same as assisting online sex trafficking?

Mr. Kristof’s opposition to Backpage has always surprised me, because he’s actually done a great job of using Backpage as a tool for good. He’s written about how he found a victim on Backpage — in her family’s living room, no less — and forwarded the post to police. A few hours later, the police located the victim. This was a great outcome, and one that wouldn’t have been as easy or commonplace if not for Backpage’s high visibility.

My general argument is that intermediaries provide a natural point of connection between victims and those who want to usher them to safety — including law enforcement, non-governmental organizations, and journalists. It doesn’t make much sense to hold websites responsible for the bad (trafficking) while ignoring their role in the good (recovery from trafficking). So, to the extent that SESTA is an effort to debilitate Backpage, I believe it’s not consistent with fighting human trafficking.

SESTA advocates claim that the bill is narrowly tailored to go after “bad actors”? Why do you think they’re mistaken?

The most basic premise of Section 230 of the Communications Decency Act is that intermediary websites can’t possibly keep tabs on everything others post — and that if they’re faced with potential liability, they’ll only publish as much as they vet. Compromising this immunity changes things for any website that involves large amounts of user-generated material — for example, Facebook, Yelp, and (to choose a random example) your basic arts-and-crafts forum. The law is already set up to go after bad actors — as I mentioned, there’s no exemption for websites that participate in human trafficking. But by compromising Section 230 immunity, SESTA opens websites up to the possibility of liability for content created by others. They don’t have to be bad actors to be impacted by this.

A commonly voiced argument in favor of SESTA posits that if eliminating Backpage and sites like it prevent even one girl from being sold, it’s worth it. What’s your response to that sort of rhetoric?

If we knew what effect eliminating Backpage would have on trafficking, this would be a much different argument. The fact is that we don’t, and the statistics most often cited aren’t quite what they’re made out to be. For example, many infer from the fact that a lot of reports of sex trafficking involve Backpage that Backpage leads to more sex trafficking. But all the data tell us is that Backpage is associated with many reports of sex trafficking. One plausible reading of this is that Backpage leads to more sex trafficking being reported. If that’s the case, then shutting it down could backfire.

Websites like Backpage tend to make trafficking more visible — but that’s not the same as causing it. Likewise, ushering trafficking out of sight (by shutting down Backpage) isn’t the same as eliminating it. If we really want to solve this problem, we can’t confuse trafficking’s disappearance with its eradication. We owe victims far more than that.

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