We recently warned you about legislation called the “SAVE Act”
which we explained presented grave concerns for alternative newsmedia and others who carry advertisements for adult-oriented services. That legislation has now been introduced in the U.S. Senate as S 2536
(the link goes to a version of the bill posted to Scribd but we understand that it is the version of the bill that was introduced with great fanfare
), which means we can wait no longer: It’s time to speak up.
There are some changes from the discussion draft we had previously seen but none are sufficient to alleviate our concerns (in fact, there are no changes to the very onerous record collection and notice requirements which will directly affect AAN members and which constitute primary basis for our opposition).
The bill was introduced on Thursday, June 26 with bipartisan co-sponsorship: Senators Mark Kirk (R-IL) and Dianne Feinstein (D-CA). Again, the only changes to the discussion draft we already summarized and analyzed for you deal with the provisions that consider anyone who sells, commercially promotes, places, or maintains an adult advertisement used in conjunction with commercial sex trafficking prohibited by federal law or similar state laws as part of the trafficking venture. These changes include:
- Addition of a requirement that the individual “knowingly” sell, commercially promote, place, or maintain an adult advertisement (as opposed to simply engaging in the act)
- Addition of a requirement that the advertisement be sold, commercially promoted, placed or maintained in “a medium whose predominant purpose or use is to facilitate commercial transactions”
- Deletion of the possibility that someone can be convicted because they are negligent of the fact that the individual who has been trafficked is under the age of 18, meaning that punishment can only occur if you act with “reckless disregard” of the individual’s age
- Adds the undefined term “interactive advertising network service provider” to the list of entities which are immune from prosecution under this portion of the law
These changes mean it is highly unlikely that an AAN member could be considered part of a commercial sex trafficking venture even if it knowingly takes an adult advertisement which is used to traffic a minor. That’s because newspapers are not media “whose primary purpose or use is to facilitate commercial transactions”.
But that offers little salvation because, as we said in our earlier summary
and accompanying talking points
, our main concern is that AAN members who take adult advertisements (whatever that exactly means given the somewhat vague and apparently overbroad definition which remains in the now-introduced bill) still MUST
collect government-issued identification from anyone who places the ad, anyone who is depicted in the ad and anyone who is advertised and must keep those records for seven years. They must also engage in whatever requirements are later enacted regarding language which must be placed in these advertisements. This is true regardless of whether the advertisement, anyone placing the advertisement, anyone depicted in the advertisement or anyone advertised has a connection to sex trafficking.
And, again, the penalty for any slip-up (which might include but are not limited to: guessing wrong as to whether something is an adult advertisement, simply failing to get the required identification from a single person, or relying on those who actually have direct access to and contact with those depicted in an advertisement or advertised, only to have them let you down) is severe: a mandatory minimum penalty of $250,000 - $350,000 and/or jail time for a first offense, $350,000 - $500,000 and/or more jail time for repeat offenses, and the possibility of criminal forfeiture.
We still continue to believe these are incredibly onerous requirements, resulting in unduly harsh penalties for even honest errors. Yet they appear to have little direct connection to fighting commercial sex trafficking. AAN Legal Counsel Kevin M. Goldberg and Executive Director Tiffany Shackelford will be making the rounds of Judiciary Committee members
to express our opposition and concerns and reaffirm our commitment to not only improving this bill but also finding other useful ways to stop commercial sex trafficking. We hope you will too.