Unfortunately, it appears as though a watered down version of the SAVE Act will become part of law. As we reported to you last week, Senator Mark Kirk (R-IL) tacked language on as an amendment to the Justice for Victims of Trafficking Act (JVTA) which adds “advertising” to certain offenses covered by 18 USC 1591, a criminal statute preventing sex trafficking. With several provisions designed to combat sex trafficking and provide support for victims of sex trafficking, whether or not the JVTA would pass the Senate and, eventually, become law really wasn’t in doubt. Indeed, the bill passed by a wide margin. Only two Senators, Ron Wyden (D-OR) and Maria Cantwell (D-WA), opposed the addition of the SAVE Act to the bill; once that amendment was approved, the bill passed unanimously.

The only silver lining is that the SAVE Act version that passed the Senate and is likely to become law pending House approval isn’t as bad as it could have been. After all, the version that Senator Kirk (and Senator Feinstein) had originally been pushing was much, much worse.

Or so it seems. It’s hard to tell what this version of the SAVE Act does. It’s clear what bill says; less clear what it means. The SAVE Act that passed the Senate makes just a few changes, all keyed off of the addition of the word “advertises” to the list of offenses that can be punished as part of a sex trafficking operation. As a result, 18 USC 1591 now says that anyone who (among other actions) knowingly advertises a person or who knowingly receives a benefit from participating in a sex trafficking venture when that person or entity knows that means of force, threats of force, fraud, or coercion were used to cause the victim to engage in a commercial sex act or knows that the person is under 18 can be punished (here’s a redline of 18 USC 1591 as amended).

Punishment includes a fine and/or at least 15 years in jail where means of force, threats of force, fraud, or coercion are involved or the victim is under the age of 14 and fines and/or at least 10 years in jail if the victim is at least 14 but under 18 (this existed in 18 USC 1591 before the SAVE Act changes). There is also a provision (also already in 18 USC 1591) which says that anyone who obstructs, attempts to obstruct or in any way attempts to prevent the enforcement of the law is subject to fines and/or jail time of up to 20 years.

But there is significant uncertainty because the word “advertises” is not defined and because it is unclear what level of “knowledge” is required as to the existence of a sex trafficking venture and/or the age of a victim or existence of means of force, threats of force, fraud, or coercion. Is a publication or website that receives an advertisement actually “advertising” a sex trafficking venture? Given that the law’s sponsors have made it clear they are fed up with web-based advertising services, we would guess that the answer is “Yes.” But can prosecution and/or conviction occur only when there is “actual” knowledge of a sex trafficking venture and or other required factors or would “constructive” knowledge suffice (the existence of sufficient factors to make one suspicious of illegality combined with a lack of any investigation on the part of the publication or website).

Emma Llanso of the Center for Democracy and Technology does an excellent job of explaining why the SAVE Act will create so many problems for the internet and even for law enforcement attempting to combat sex trafficking. It really may do more harm than good in this area.

Part of the problem, of course, is that this bill was rushed to a vote without any meaningful hearings, Congressional reports or significant discussion of this language. It’s truly unfortunate that a Senate whose trademark characteristic is an inability to agree on anything finally agrees on legislation that is so clearly lacking in thought or consideration as to its meaning or effect.

Speaking of effect, then, the only way we will be able to gauge this effect of these changes is to wait until the first prosecution is threatened or brought. In the meantime, one can expect a significant amount of self-censorship as publications and websites try to figure this law out. AAN members should definitely consult with their own legal counsel if they are unsure about whether there is an increase in liability exposure – and hope that, for some unlikely reason, the House and Senate cannot resolve what are really just drafting, not substantive differences between their two bills.