SAVE Act Updates (including “Son of SAVE Act”)

There’s been some action on the SAVE Act that we’ve been so vocal about in the past couple years. We’ve seen some good (an attempt to attach the bill to other anti-trafficking legislation moving through the Senate failed), some bad (a version of the SAVE Act was introduced as a free standing bill in late February) and some “other” (we’re hearing rumors that another version may be on the Senate floor as early as this week).

If you’re an AAN member and you’re not familiar with the SAVE Act now, well, where have you been? I’ve spoken about it at the Annual Conference in Nashville and the Digital Conference in San Francisco. I’ve written about it on several occasions, laying out our arguments against both the House and Senate bills — especially the truly dangerous Senate version introduced in 2014 by Senators Mark Kirk (R-IL) and Dianne Feinstein (D-CA) — and inviting AAN members to speak out in opposition. Doesn’t ring a bell? My most recent post aggregates everything that came before it.

It’s that version that Senator Feinstein tried to attach as an amendment to another anti-trafficking bill that was moving through the Senate Judiciary Committee a little over a week ago. Thankfully the amendment was rejected. But Senator Kirk introduced something similar to the current House bill (HR 285) on February 25. That bill, S 572, hasn’t received any formal action from the Senate Judiciary Committee or the Senate as a whole yet.

But now we’re hearing that Senator Feinstein may attempt to introduce a variation on this theme — something closer to the House version of the SAVE Act (HR 285) — as an amendment to anti-trafficking legislation that is on the floor this week. While the draft I’ve seen doesn’t include the recordkeeping and notice requirements that I’ve always thought would be incredibly difficult, if not impossible, for AAN members to comply with, resulting in near-certain liability for one of you at some point and, while the bill only applies to online advertising, it’s not something we can be happy with.

In effect, the bill says that anyone who places an ad online or any website which hosts an online ad with knowledge or reckless disregard for the fact that the ad is for a commercial sex act with a minor can be fined and/or jailed for up to 10 years. There is also the possibility of a civil suit against that advertiser or website with a penalty of not more than $ 10,000 per violation. But there is a “safe harbor” for anyone who makes a “reasonable attempt” to identify such an advertisement for a minor and expeditiously removes it or disables access to it.

That’s the biggest concern: the uncertainty over what constitutes a “reasonable attempt” to identify and remove/disable such an ad. The bill punts that to the Attorney General. My guess is that most AAN members would obviously take action to remove ads trafficking minors from their site. Without a doubt, you’d use your best efforts to make sure such ads don’t run in the first place. The danger is whether those best efforts would truly meet the definition of “reasonable attempt” set by the Attorney General.

Given that the obligation to screen ads placed by 3rd parties is, thanks to Section 230 of the Communications Decency Act, currently “none”, any obligation to review any ad placed on your site will increase your burden. Given that you’re probably already doing your best to ensure that ads trafficking minors don’t appear on your site or in your papers, the Attorney General’s definition of reasonable might make your obligation unbearable.

We hope you voice your continued opposition to the SAVE Act.