The Cost of a Click: Social Media’s Responsibility for Promoting and Facilitating Sex Trafficking
Blog Post | 110 KY. L. J. ONLINE | October 11, 2021
The Cost of a Click: Social Media’s Responsibility for Promoting and Facilitating Sex Trafficking
By: Rachael Beller, Staff Editor, Vol. 110
For many, social media sites serve as a platform to promote communication and allow one another to stay connected. As great as these platforms are, a darker side exists amongst them that allows for one click to cost someone their lives. That dark side is human trafficking.[1] As of 2019, there were over 22,000 trafficking victims and survivors in the United States, of which there were four times as many children identified as victims than adults.[2]
Human trafficking is best defined by The Trafficking Victims Protection Act (“TVPA”) of 2000.[3] In sum, “severe forms of trafficking in persons” is:
(a) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or
(b) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.[4]
It is easier today more than ever for traffickers to recruit victims, proliferate their trafficking operations, and to control victims through social media sites. [5] Before the internet and social media, newsgroups and newspapers were the main media outlet for sex trafficking advertisements, in which it was easier for police to find and prosecute traffickers.[6] Now with social media, not only can victims be advertised in conspicuous ways, but people can also be more easily recruited into trafficking.[7] Predators are able to use chat functions and ambiguity settings to “groom” young individuals into trafficking and are using emojis as a code language to bypass legal liability while they sell child sexual services online.[8]
The average age a child is trafficked in the United States is 12-14 years of age, and most children as of 2018 are opening social media accounts at age 12.[9] This brings a call of action to social media platforms to act against online sex trafficking promotion and facilitation through social media sites.
Legislative Action
In 2018, Congress passed The Fight Online Sex Trafficking Act, “FOSTA”, which allows the government to prosecute owners or operators of websites who knowingly assist, support, or facilitate the “prostitution of another person, or who act with reckless disregard contributing to sex trafficking.”[10] FOSTA gives state and federal prosecutors greater power to pursue websites that run sex-trafficking advertisements and allows for direct lawsuits to be filed against those sites.[11] In turn, online sites—such as social media platforms—can now be held liable for civil damages and in aggravated cases lead to potential imprisonment.[12]
FOSTA is an amendment to the Communications Decency Act (“CDA”) of 1996.[13] Until FOSTA, the CDA allowed for operators of websites to be legally protected for content posted by third parties under Section 230.[14] While FOSTA is a step in the right direction for holding online platforms responsible for promoting and facilitating trafficking, courts have yet to realize general liability of social media platforms specifically in this area.[15]
Case Examples
Since FOSTA was passed in 2018, several ongoing cases highlight the difficulty that still exists in holding social media sites accountable for trafficking.
In Doe v. Kik Interactive, Inc., the plaintiff alleged that the owners and operators of the social media application “Kik Interactive” "knew that sexual predators used its service to contact and solicit sexual activity with minors but had failed to provide any warnings or enact policies to protect minors."[16] The court ultimately granted the defendant’s motion to dismiss the case on the ground that there is still immunity for online sites, such as Kik Interactive, under the CDA to allow third party platforms to not be held liable for what customers do on their platform.[17] That is, unless there is “specific and articulable facts” that led the social media application, Kik Interactive, to know that this very specific act of trafficking was occurring on their platform and they did not take action to stop it.[18] Here, the plaintiff’s claim alleged generalized facts of the broad trafficking occurring on Kik, but not to the specific Doe’s trafficking encounter, and thus Kik Interactive could not be found liable.[19]
In re Facebook, Inc., is a case still ongoing amongst plaintiffs who claim that Facebook intentionally benefited from them being trafficked under FOSTA, since they became entangled with their abusers through Facebook.[20] The main issue being whether social media sites can be held liable for what their customers do on their sites, which as of now courts rule, they cannot.[21] Rather, social media sites can only be held liable for direct promotion and facilitation of trafficking.[22] The Supreme Court of Texas ruled that the Plaintiffs claims for negligence, gross negligence, and negligent undertaking—alleging that Facebook failed to adequately protect them from harm caused by other users—was barred under 47 U.S.C.S. § 230.[23] In sum, social media sites can be held civilly liable for directly facilitating trafficking yet cannot be found liable under FOSTA for negligence in contributing to trafficking.[24]
Conclusion
FOSTA appears on its face to be a victory in the fight against online trafficking, yet until social media sites are being held accountable for allowing customers to use their platforms to promote and facilitate trafficking, justice will not be served. Many social media platforms, including Facebook, have come out with anti-slavery and human trafficking public policy statements about how they are “committed to achieving the highest standards of quality and integrity.”[25] Despite these mission statements, young lives are falling victim to traffickers every day on social media sites.[26] It is time the courts and legislature step up and demand more from social media platforms to actively prevent trafficking
[1] Mitzi Perdue, The Darkest Side of Social Media, Psychology Today (July 30, 2021) https://www.psychologytoday.com/us/blog/end-human-trafficking/202107/the-darkest-side-social-media
[2] 2019 U.S. National Human Trafficking Hotline Statistics, Polaris Project, https://polarisproject.org/2019-us-national-human-trafficking-hotline-statistics/, (last visited Oct. 11, 2021).
[3] Victims of Trafficking and Violence Protection Act of 2000 § 103(8), Pub. L. No. 106-386, 114 Stat. 1464 (codified as amended at 22 U.S.C. § 7102(11)).
[4] Id.
[5] Human Trafficking and Social Media, Polaris, https://polarisproject.org/human-trafficking-and-social-media/ (last visited Oct. 6, 2021).
[6] Kirsten M. Prylinski, Article: Tech Trafficking: How The Internet Has Transformed Sex Trafficking, 20 J. High Tech. L. 338, 344 (2020).
[7] See id. at 346.
[8] Oliva Parise, Note, Little Pink Flower with a Darker Story to Tell: The Role of Emojis in Online Human Trafficking and Potential FOSTA-SESTA Liability, 11 U. Mia.mi Race & Soc. Just. L. Rev. 54 (2020).
[9] Jacqueline Howard, What’s the average age when kids get a social media account?, CNN (June 22, 2018, 10:22 AM), https://www.cnn.com/2018/06/22/health/social-media-for-kids-parent-curve/index.html; 11 Facts About Human Trafficking, Dosomething.org, https://www.dosomething.org/us/facts/11-facts-about-human-trafficking (last visited Oct. 6, 2021).
[10] 18 U.S.C. § 2421A.
[11] Nicola A. Boothe, Symposium: The Evolution Of Technology & Gender-Related Offenses: Traffickers' "F"Ing Behavior During A Pandemic: Why Pandemic Online Behavior Has Heightened The Urgency To Prevent Traffickers From Finding, Friending And Facilitating The Exploitation Of Youth Via Social Media, 22 Geo. J. Gender & L. 533, 559 (2021).
[12] Id. at 559.
[13] 18 U.S.C.S. § 2421A.
[14] Eric Goldman, The Complicated Story of FOSTA and Section 230, 17 First Amend. L. Rev. 279, 280 (2018).
[15] Boothe, supra note 11, at 551.
[16] Doe v. Kik Interactive, Inc., 482 F. Supp. 3d 1242, 1244 (S.D. Fla. 2020).
[17] Id. at 1252.
[18] Id.
[19] Id.
[20] In re Facebook, Inc., 625 S.W.3d 80, 83 (Tex. 2021).
[21] Id. at 94.
[22] Id. at 83.
[23] Id. at 94.
[24] Id. at 101.
[25] Facebook, Facebook’s Anti-Slavery and Human Trafficking Policy Statement 1 (June 30, 2020), https://s21.q4cdn.com/399680738/files/doc_downloads/2020/06/2020-Facebook's-Anti-Slavery-and-Human-Trafficking-Statement-(FINAL).pdf.
[26] See Dorian Hargrove & Rafael Avitabile, It Starts with a Conversation: How to Protect Your Child From Falling Victim To Sex Trafficking Or Predators Online, NBC San Diego (Aug. 20, 2020, 1:46 PM) https://www.nbcsandiego.com/news/investigations/it-starts-with-a-conversation-how-to-protect-your-child-from-falling-victim-to-sex-trafficking-or-predators-online/2388344/.