Washington Attorney General Bob Ferguson and 36 other attorneys general are asking Congress to remove a barrier to state and local prosecution of human traffickers.
They should have that opportunity.
The promoters and sellers of sex have moved off the street and onto the Internet, where they are harder to find and identify, if they even bother to hide. Unfortunately, the Communications Decency Act of 1996, which was intended to shield children from smut, has instead come to be a shield for those who exploit the under-aged.
Responsibility for the prosecution of those who promote or engage in prostitution is a state responsibility. But the federal law effectively blocks state action against activity on the Internet.
Washington legislators, for example, unanimously passed a bill last year that would have allowed criminal prosecutions of Web service providers who did not verify, or did not make a good-faith effort to verify, that everyone depicted in sex-related ads was not a juvenile. Ferguson predecessor Rob McKenna, for whom the fight against juvenile exploitation was a priority, noted that most prostitutes were recruited or pressed into the trade between ages 12 and 14.
But the two major “escort” websites quickly sued, claiming the state was exceeding its authority and violating the First, Fifth and Fourteenth amendments to the Constitution as well as its commerce clause.
They won. Backpage.com and something called the Electronic Frontier Foundation – some frontier – got $200,000 for their legal costs.
McKenna stated the obvious in December, when he surrendered to the legal odds against Washington: “We do not believe that advertisements for a service illegal in every state – prostitution – are protected by the Constitution.”
But Ferguson and the two attorney generals leading the effort to change the decency act, South Dakota’s Marty Jackley and Missouri’s Chris Koster, are not letting the issue drop. Tuesday, they sent a letter to the chairmen and ranking members of the House and Senate commerce committees suggesting a two-word amendment to the CDA: “or State.”
With that, states and counties would be back in the fight against sex trafficking, particularly of the young.
Their challenge will be finding a defensible “bright line” that distinguishes between ordinary websites where users might occasionally post sexual matter, and sites such as Backpage.com that deliberately facilitate the sex trade. Foes of state tampering with Internet commerce argue that any line will be arbitrary, and that no two states will draw the same line.
That’s not a justification for the enforcement vacuum created by the 1996 law as interpreted by the courts. Teen and pre-teen sex slaves need help.
It’s too soon to know whether the attorneys general letter will stir anyone in Washington, D.C., where any will to address a problem is stymied by an equal energy to do nothing.
The all-purpose response too often comes down to one word: recess.