Private-Sector Initiatives

The private sector routinely mines consumer behavior data from online sources in order to craft marketing and advertising campaigns; the next logical step for some technology companies is to mine the same data to craft solutions to social problems. A September 1, 2012, Miami Herald article states, “truly ending human trafficking is more complicated than shutting down one website. The entire ecosystem—from the recruitment to the grooming and the selling, almost all done via the Internet—must be addressed.”[1]

The private sector is becoming a source of innovation in counter-trafficking initiatives. In June 2012, Microsoft Digital Crimes Unit and Microsoft Research collaborated on an initiative to support researchers who have creative ideas for clarifying the role of technology in facilitating the commercial sexual exploitation of children.[2] The Microsoft groups awarded a total of $185,000 to six research teams studying a wide variety of angles on the issue, including the online behaviors of johns, the impact of technology on the demand for child sex trafficking victims, the ways in which judges and law enforcement officers understand the role of technology in sex trafficking cases, the clandestine language used in online advertising of child sex trafficking, and the role of technology in improving services for child sex trafficking victims.[3] When the research concludes, Microsoft Digital Crimes Unit and Microsoft Research intend to make the findings available to help develop tools for disrupting technology-facilitated sex trafficking.[4] Microsoft Digital Crimes public affairs coordinator Samantha Doerr notes, “[a]rmed with better data, I believe real breakthroughs are possible for helping disrupt the dynamics that fuel the child sex trade.”[5]

In December 2011, Google granted a total of $11.5 million to counter-trafficking organizations, part of which was allocated to support new initiatives utilizing technology to combat human trafficking.[6] This technology-focused initiative reportedly includes projects with Polaris Project, Slavery Footprint, and the International Justice Mission.[7] In July 2012, Google Ideas collaborated with the Council on Foreign Relations and Tribeca Enterprises to host the Illicit Networks, Forces in Opposition (INFO) Summit.[8] The summit brought together various actors whose work focuses on disrupting illicit activities, including drug trafficking, arms trafficking, human trafficking, and organ trafficking.[9] Workshops provided space for attendees to share ideas, offer solutions, and form new alliances with the resources to rival international criminal networks.[10] Google intends for several of the initiatives established at the summit to be launched in the upcoming year.[11]

Software company Palantir Technologies has worked with the National Center for Missing and Exploited Children (NCMEC) to improve NCMEC’s ability to make sense of all the data at its disposal.[12] NCMEC uses Palantir’s software to search for and analyze information relating to missing and exploited children and sex offenders. Analysts can diagram complex relationships, perform geospatial analysis, search multiple databases simultaneously, and share data and analysis with law enforcement and other partners.[13] In 2012, Palantir also initiated a partnership with Polaris Project to provide the analytical platform and engineering, training, and support resources to the NHTRC to enable the study and application of data derived from their call records.[14]

The counter-trafficking efforts of LexisNexis gained considerable notice this year, as it recently emerged with an array of technology-driven tools to assist both the public and private sectors in detecting, monitoring, and researching human trafficking. In collaboration with the NHTRC, LexisNexis developed a national database of social service providers.[15] LexisNexis also created an online resource center for attorneys who work with human trafficking victims and is working with the American Bar Association to establish a training institute on civil remedies for victims.[16] LexisNexis offers direct financial, legal, and technical advice to the counter-trafficking NGOs the Somaly Mam Foundation and Agir pour les Femmes en Situation Precaire.[17] It also established the Human Trafficking Awareness Index, a tool that tracks and analyzes the volume of news articles related to human trafficking produced by 6,000 of the most influential news sources from more than 120 countries.[18] Finally, LexisNexis packaged several of its tools into a Supply Chain Management Solutions toolkit to assist business owners and managers in monitoring supply chains and reviewing the practices of third-party suppliers.[19].

At JP Morgan Chase, Barry Koch has developed tools for applying anti-money-laundering regimes to human trafficking networks.[20] Because money-laundering schemes and human trafficking schemes both tend to involve hidden financial transactions, technological applications for detecting money laundering have proven useful in detecting other illicit transactions, as Koch discovered during an investigation of several credit card transactions at a nail salon during non-business hours.[21] This investigation uncovered a human trafficking operation, and Koch further developed a regime for detecting human trafficking through technologically-tracked financial footprints and other collectible data. The establishment of such new counter-trafficking methods can inform other corporations about the impact that human trafficking has on their businesses and how to utilize existing security programs to address the issue.

Communications Decency Act and Anti-trafficking Efforts

Section 230 of the Communications Decency Act of 1996 (CDA 230) limits the liability of interactive computer service providers for content created by third-party users. According to the CDA, section 230 was enacted to maximize the public’s benefit of Internet services by curbing government interference in interactive media and preserving the free flow of expression online.[22] However, CDA 230 has become a point of tension as it relates to technology-facilitated trafficking.

CDA 230 distinguishes the publishers of online content from those who provide the platform for hosting the content. It specifically prohibits providers and users of interactive computer services from being “treated as the publishers or speakers of any information provided by another information content provider,”[23] thereby creating a “federal immunity to any cause of action that would make service providers responsible for information originating with a third-party user of the service.”[24] This grant of immunity “applies only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole or in part, for the creation or development of’ the offending content.”[25] An interactive computer service provider that invites third parties to post illegal materials or creates such postings, however, forfeits this immunity.[26]

Application of CDA 230 with regard to human trafficking is demonstrated in M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC,[27] a 2011 case in which a minor plaintiff sought to hold website operator Backpage liable for her sex trafficking victimization. A trafficker posted sexually explicit images of the minor in advertisements on Backpage’s website.[28] Noting the distinction between a service provider and a content provider, the court held that CDA 230 immunity extended to Backpage, despite the fact that Backpage provided a search engine for filtering postings in adult categories and profited from users’ activities on the site.[29] The court found that Backpage was not responsible for developing the content of the advertisement, nor did it do anything to encourage content of that nature.[30]

As the case above demonstrates, some are concerned that the immunity CDA 230 provides removes the burden on service providers to responsibly police the content on their websites. CDA 230 provides an avenue through which providers can be shielded from liability as hosts of illegal content created by third parties. Additionally, subsection (e) expressly provides that CDA 230 is not to affect the enforcement of laws against obscenity[31] and the sexual exploitation of children.[32] Thus, CDA 230 would not preclude individual states from creating and enforcing laws to combat domestic minor sex trafficking, so long as these state laws do not directly conflict with the provisions of CDA 230.[33]

In what might be seen a direct challenge to CDA 230, on March 29, 2012, Washington Senate Bill 6521 (SB 6521) was signed into law,[34] requiring the hosts of online classified ad sites to verify the ages of people in advertisements for sex-related services, as it criminalizes the direct or indirect publication, dissemination, or display of “any advertisement for a commercial sexual act which is to take place in the state of Washington and that includes the depiction of a minor.”[35] Upon passage of the bill, Backpage filed a complaint on June 4, 2012 to declare the new law invalid and enjoin its enforcement.[36] Among its arguments, Backpage claims that CDA 230 preempts the new law because its enforcement “would treat Backpage.com, a provider of an interactive computer service, as the publisher or speaker of information provided by another information content provider.”[37] SB 6251 was originally scheduled to take effect on June 7, 2012; however, a federal court granted a preliminary injunction on July 29, 2012, blocking enforcement of the law until the court can make a determination as to whether the law conflicts with federal law or is otherwise unconstitutional.[38]

It is important to note that CDA 230 was also intended to remove disincentives that previously prevented Internet service providers from using blocking and filtering on their services. Whereas some service providers in the past might have refrained from screening material on its websites, fearing that such regulatory action would invite third parties to assert their First Amendment rights, CDA 230 protects providers from civil liability for their good faith screening of offensive material. Subsection (c)(2) provides for this shield, stating that providers and users of interactive computer services will not be held liable for action taken in “good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” How an Internet service provider would actively determine or identify content that might signal human trafficking behavior remains unresolved.