There's no Saving this Senate Version of the SAVE Act

june 18, 2014  06:15 pm
We've written a couple times to warn AAN members about a bill that has now passed the House of Representatives known as the "SAVE Act" (HR 4225). That bill, which might put AAN members who take ads for adult services straight in the crosshairs of law enforcement, did eventually pass the House by a resounding margin of 392 to 19.

But HR 4225 has become the least of our worries. The Senate is now considering an even stronger version of the proposed law.

We understand this summary and analysis is very long but it is imperative that you read it and understand what's at stake, especially if you advertise anything which might be construed as adult services. If you do – and hopefully even if you don't but you believe in the First Amendment – you should strongly consider speaking out against this bill as an ill-advised solution to a clearly important problem, either by editorializing against the bill or contacting your Senator. A shorter outline of the problems with the bill can be found here.

Senator Mark Kirk, a Republican from Illinois, is planning to introduce a different version of the SAVE Act in the Senate soon. AAN Legal Counsel Kevin M. Goldberg and Executive Director Tiffany Shackelford have seen the legislation and have met with the Kirk's staff on two occasions to express AAN's concerns, which are many. In short, the obligations created and the penalties created by the bill are incredibly onerous, a problem which is exacerbated by the fact that the requirements imposed are unlikely to have any meaningful impact in the fight against sex trafficking.

What the Bill Does:

This new Senate Save Act will do two things to make it easier for law enforcement to find and punish those engaged in the trafficking of minors for sex (that's another big difference between this Senate bill and the House bill: This one only applies where the victim of sex trafficking is a minor whereas the House bill applied in those situations AND where the victim was trafficked through force or coercion).

First, it reduces the standard of fault required to punish 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.

We all agree that anyone who sells, commercially promotes, places, or maintains an adult advertisement with the knowledge that the advertisement is being used to offer minors for sex should be prosecuted. However, this Senate bill will also allow for punishment of anyone who is negligent or in reckless disregard of the fact that an ad is used to traffic someone under 18, with a penalty of up to 1 year in jail and/or a fine for anyone who acts with negligently with regard to the age of someone advertised and up to 10 years in jail and/or a fine for anyone who acts with reckless disregard of the subject's age.

There are two "safe harbors" created which eliminate the possibility of liability under the new negligence or reckless disregard standard. Not punished under this standard are certain types of internet actors, including Internet Service Providers, browsers, external search engine providers, external information location tool providers, common carriers or generic search/utility providers. Also not punished would be anyone who engages in certain record collection and notice requirements. To qualify for this safe harbor one must:
Verify the identities of those who purchase adult advertisements and those advertised or depicted in adult advertisements by (1) obtaining confirmation of identity, (2) obtaining government issued ID and (3) obtaining other indicia of ID as required by regulation.

Maintain that information for 7 years and making it available to the Attorney General and his or her designates or any State Attorney General and his or her designates.

Identify in the advertisement where these records are maintained located (with the further requirement to provide a contact person if it is an organization that is collecting and maintaining these records)

Comply with any other regulations that might be drafted by the Attorney General, who has been ordered to determine which of the following might be useful to require:

Whether anyone can be required to review things like web postings before published to ensure they don't offer minors for sex or contain sexually explicit images of minors

Whether to prohibit the use of certain euphemisms and code words for prohibited transactions (with that "blacklist" to be created by the Attorney General)

How best to deal with repeat offenses

Whether to require the person posting an ad to provide credit card and telephone number (even if not that card is not charged because the ad can be placed for free)

Whether to entirely prohibit use of prepaid cards, virtual currencies, etc. if fee is required

How to require reporting of instances of exploitation

What information should be included regarding how people can report child exploitation

Second, and of infinitely greater concern, is the requirement that ANYONE who sells, commercially promotes, places, or maintains an adult advertisement – whether or not that advertisement is used in conjunction with commercial sex trafficking – must engage in the record collection and notice requirements. So, in fact, those requirements above aren't a "safe harbor" after all: they are an "affirmative obligation" to get government-issued identification from anyone who places an adult advertisement, any model who is "depicted" in an adult advertisement or anyone who is "advertised" in an adult advertisement.

An "adult advertisement" is defined as:
Advertising subject to recordkeeping under 18 USC 2257 (generally covering visual depictions of actual sexually explicit conduct)

Designed to produce a commercial exchange for

Sex act as defined in 18 USC 2246 (generally covering contact with genitals)

Sexually explicit conduct as defined in 18 USC 2256 (generally covering actual or simulated intercourse; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person;

Commercial sex act as defined in Section 103 of the Trafficking Victims Protection Act of 2000 (generally covering any sex act on account of which anything of value is given to or received by any person)

Goods and services of any adult escort or adult entertainer for commercial sex act described above

That would include advertisements placed by legal businesses or for legal services such as strip clubs, people offering or looking for S&M exchanges, adult escort services, perhaps massage services and, of course, legal prostitution. The failure to engage in the record collection and notification requirements described above – for any reason – could result in the following penalties:

Fines and/or Jail time of 250,000-350,000 and/or up to 5 years for a first offense, which increase to $ 350,000-500,000 and/or jail time of up to 15 years for repeat offenders.

Criminal Forfeiture of any real or personal property used or intended to be used to commit, to facilitate, or to promote the commission a violation of this law. .

Why the Bill Should Not be Enacted

The main concern for alt-weeklies, or anyone who takes adult advertising – including those who simply take user-generated advertising – is that they are clearly subject to incredible penalties without any clear knowledge of where their obligations lie, without any clear standard of fault if they try to do the right thing but get it wrong and with little likelihood that any of these obligations are actually going to prove useful in the fight against child sex trafficking.

Let's look at a couple actual ads as an example, both from the June 13-19 edition of the Washington City Paper.

The first is a picture advertisement with a shirtless male and the words "Warning Hot Guys!" and "Free to listen and reply to ads" as well as "Free Code: Washington City Paper". There are phone numbers to call in Washington DC, Arlington, Virginia and Baltimore, Maryland, as well as an 800 number.

The second is a purely text-based classified which reads: "Pretty 28 year old. Full Body Massage. Open10 am-6pm" and then has a phone number.

Are these "adult advertisements" under the definition in the proposed legislation? It's hard to tell, especially for the paper taking the ad, which, again, has no knowledge of whether any sexual contact is occurring behind the scenes and perhaps could not have any idea as to whether that's occurring. So the only thing the publication can do is go through the required record collection and notice requirements for every advertisement that seems remotely capable of qualifying as an "adult advertisement" under the law.

That process is incredibly burdensome and presents an impossible task for a newspaper—or anyone else. Remember, the law requires anyone maintaining an adult advertisement to get government-issued identification from 3 types of people: those "advertised", those "depicted" and those placing the advertisement.

We'll get back to the second and third later but one concern is that those "advertised" are any persons offered up for sexual contact under the advertisement, as opposed to only those persons pictured in the advertisement. Otherwise, why would the bill use both "depicted" and "advertised". That means the publication must get government-issued identification from any masseuse, any stripper, and maybe any person that uses that chat service to engage in commercial sex transactions. The bill's drafters don't believe this will be much of a burden. Senate staff have argued that the publication can presumably get even this from the advertiser, who also has to collect it.

But what happens if the advertiser doesn't believe this is an adult advertisement? What happens if the advertiser slips up and doesn't get identification from one or more individuals? Either is a likely scenario given the amount of people involved and the sometimes high turnover in these industries.

Or what happens if the publication, despite all best efforts, doesn't get identification from one person. Now imagine what might happen if you're Google (or Facebook or Twitter, which could also be implicated if, say, a stripper promotes himself or herself via a Twitter account). Are these companies required to scan every single ad placed via their sites or advertising services, including those that are entirely user-generated? As hard as meeting this requirement will be for an alt-weekly with a small staff, it could be more difficult for a billion dollar company doing business on a global scale.

The notice requirements will also be a tremendous burden. The language required by the notice (especially if it eventually includes information about how to report child exploitation to the National Center for Missing and Exploited Children) will actually cover more space than a standard text advertisment alone. The size of picture advertisements are likely to be altered as well (making them bigger and, thus, leaving space for fewer overall advertisements).

Just one mistake mandates a fine of at least $ 250,000 and brings in the possibility of jail time and/or criminal forfeiture of the property relating to the business. A mandatory minimum for even one honest mistake resulting in criminal forfeiture proceedings instituted against a newspaper isn't the stuff of the United States (but seizures of newspapers have recently occurred in Nigeria).

And there's no guarantee that this works. In fact, on such a grand scale the likelihood is that it simply doesn't work. That the system breaks down. Or, more likely, that those advertising adult services turn to other websites, perhaps sites that are less savory and/or located overseas. While law enforcement – and certainly Senate staff – have disputed this, there is ample evidence that the more mainstream publication websites that carry the majority of adult advertisements have been cooperative with law enforcement in terms of tracking down known criminals. Is the right answer to push those bad actors further underground?

Now let's turn to the other two requirements: to get government issued identification from anyone depicted in the advertisement and the individual or company who places the advertisement.

The first will provide absolutely no assistance in fighting child sex trafficking, as the person depicted in the advertisement is generally just a model who doesn't actually work for the company placing the advertisement.

On the other hand, the individual or organization placing the advertisement seems to be the most relevant of these three categories. After all, if someone places an advertisement for sexual services, having this government issued identification on file will lead you right to that individual.

Or will it? Is the type of person who is willing to traffic minors for sex likely to provide their own identification? Or are they able to – and likely to – get a really good false identification and provide that as well. Look, it's not that we want this to happen, but the reality is that this scenario is likely to happen. Senate staff claim that law enforcement can still use this false identification to track down the sex traffickers.

But we're not so sure and, given the incredible penalties for non-compliance and the burden placed squarely on those who have shown a desire to work with law enforcement in the past (as well as use their journalism to fight sex trafficking, as the Boise Weekly did in this article which, coincidentally, highlights the role the Internet plays in advertising people for sex but also tracking down the criminals), feel there should be a stronger guarantee that the proposed requirements will actually work. Otherwise, they're not only impractical but also constitutionally suspect because the violate the First Amendment's prohibitions against vague regulation of speech, over-broad regulation of speech and compelled speech (and that's even before we get to the possibility of a prior restraint if the Attorney General follows through on the instruction to create a list of euphemisms or code words that can be barred from advertisements).

What Changes AAN Would Like To See (At a Minimum)

AAN suggested six changes to the proposed legislation, though even these may not go far enough to make the bill constitutional, let alone palatable to AAN and its members. They are:

  1. The criminal forfeiture provision should be removed.

  2. The $ 250,000 floor for liability should be removed. There needs to be some judicial discretion to assign a penalty that is reasonably related to the actions of those charged and to the ability of the defendant to pay the fine.

  3. The definition of "adult advertisement" is pretty vague and perhaps overbroad and, if nothing else, though, the record collection and notice requirements relating to adult advertisements should only kick in when the person who sells, commercially promotes, places, or maintains the advertisement knows or should reasonably know that it is an adult advertisement.

  4. There cannot be strict liability for failure to engage in record collection and notice because the liability is just too severe relating to the potential for innocent error.

  5. The notice requirements should be removed altogether. If law enforcement wants to come find the location of the records, they can get it through traditional means (i.e., asking or getting a subpoena).

We also suggested that the bill be limited to those publications or sites whose predominant purposes are directed at adult services. However, we understand that this could be difficult to implement, could raise constitutional questions of its own (though it should be easier to justify narrow, well-drafted regulations of adult-focused sites than those who touch the adult world only infrequently or as a small part of their business because the bill is more narrowly tailored to uphold its true – and truly compelling – interest of stopping sex trafficking), and may provide a workaround for those seeking to avoid the law.

Our guess, however, is that the bill introduced this week won't incorporate all of those changes and will still be a misguided attempt to solve a truly terrible problem. We don't have a problem with the intention behind the bill but we have serious questions about the methods it uses to combat sex trafficking.

Again, if you agree, please contact your senator and explain why he or she should be wary of this SAVE Act.