Academic journal article St. John's Law Review

The Save Act of 2015: Congress' Attempt to Reprioritize Online Child Sex Trafficking

Academic journal article St. John's Law Review

The Save Act of 2015: Congress' Attempt to Reprioritize Online Child Sex Trafficking

Article excerpt

Introduction

Technology and child sex trafficking share a parasitic relationship. As technology continues to advance in the United States, so does online child sex trafficking. In today's society almost anything is within one's fingertips at any given moment. In 2015, sixty-eight percent of Americans owned a smartphone and forty-five percent owned a tablet.1 This accessibility has been profitable for pimps, as they are now able to reach a broader market more quickly and easily.

Within the past decade, the United States Congress, law enforcement, and anti-human trafficking interest groups have accused online advertisement websites of facilitating child sex trafficking on the Internet.2 However, the Communications Decency Act ("CDA"), the First Amendment, and the judiciary's objective to keep the Internet open have hindered Congress' goal of taking down online advertisement websites. The Stop Advertising Victims of Exploitation Act of 2015 ("SAVE Act") is Congress' first comprehensive action to hold website operators liable for online child sex trafficking. Still, no case in any federal court has been brought against a website operator for violations under the SAVE Act, leaving the Act's success uncertain.

This Note argues that the SAVE Act will not achieve Congress' goal of prosecuting website operators and stopping the influx of online child sex trafficking advertisements. However, the potential pitfalls of this legislation does not mean the Act should be thrown out in its entirety. Instead, the Act should be rewritten to include well-crafted, yet informative definitions of online child sex trafficking, while also lowering the mens rea requirement and requiring website operators to engage in more due diligence.

Part I outlines the background of Internet sex trafficking in general. Section A discusses the parties involved in online child sex trafficking advertisements, the transition of the crime from the street and onto the Internet, and the benefits the Internet has provided this criminal industry. Section B details how law enforcement and anti-human trafficking interest groups pressure online classified websites to stop these illegal advertisements from being posted.

Next, Part II provides an overview of statutes enacted before the SAVE Act that relate to the Internet and online child sex trafficking advertisements. Section A summarizes the CDA and the First Amendment. Section B discusses the unconstitutionality of the state statutes enacted in New Jersey, Tennessee, and Washington to combat online child sex trafficking advertisements. Section C outlines the current debate on abolishing child sex trafficking from the Internet.

Furthermore, Part Ill discusses the SAVE Act's history and language as well as its advantages and disadvantages. This part argues that the SAVE Act will be ineffective because of (1)judicial hesitation, (2) inadequate wording, and (3) irresponsible deference.

Finally, Part IV provides solutions to the SAVE Act's deficiencies. Section A proposes new definitions of the terms used in the statute to avoid vagueness and overbreadth and suggests lowering the mens rea standard for website operators. Section B proposes the use of facial recognition programs to find unlawful posts.

I. Background

In 2000, Congress enacted the Trafficking Victims Protection Act ("TVPA"),3 which states that child sex trafficking is a severe form of human trafficking.4 Therefore, because of the severity of the crime and a child's inability to consensually engage in commercial sexual activity,5 both federal and state laws have mandated that child sex trafficking victims do not need to be forced into sex trafficking to be considered a victim.6 In other words, the mere fact that a child under the age of eighteen is involved in commercial sex work makes the transaction automatically illegal.7

A.Child Sex Trafficking-From the Street to the Internet

According to the National Human Trafficking Resource Center's ("NHTRC") hotline statistics, the number of calls it has received and the number of human trafficking cases reported has steadily increased between 2012 and 2016. …

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