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The Ultimate Game Changer in the Fight Against Human Trafficking: The Internet

Written by Meghna Rao, second year law student at the Ohio State University: Moritz College of Law

Americans wait all year for this event.  Fans race to prepare chicken wings, hot artichoke dip sizzles in the oven, and foam paraphernalia bounces around the house in support of our team of choice.  Bars burst with crowds of excited, enraged, and overall optimistic men and women who anticipate three hours of guaranteed heart-wrenching entertainment.  Televisions across the country are tuned in, fans soaking in every moment of the program, every commercial, leading to that climactic game changing moment, followed by the win.

The Super Bowl is highly publicized and hyped up, yet this infamous game is not just about a pigskin and the half-time show, for it has a dark secret many are unaware of as they gear up each year for February fun.  The Super Bowl is the largest human trafficking incident in the United States.  Eleanor Goldberg, Super Bowl is Single Largest Human Trafficking Incident in the U.S.: Attorney General, Huffington Post (Feb. 3, 2013, 9:04 AM), http://www.huffingtonpost.com/2013/02/03/super-bowl-sex-trafficking_n_2607871.html.  Young underage girls are expected to sleep with twenty-five to fifty men that day, and close to 10,000 prostitutes are imported to the Super Bowl location each year.  But it is not just the big events like the Super Bowl when young girls are exploited and sold, their lives trivialized to pigskins in the pimp’s own games.  This happens daily, in every corner of the United States, often times without any notice.  Id.

A. The Internet: the modern-day pimp’s biggest platform.

The largest game changer in our history, the Internet, has created a whole new highway for pimps, allowing them to hop right into the express lane for trafficking.  Sites such as Backpage.com charge a measly five dollars per ad, and the nature of the site facilitates anonymity.  A pimp can post a picture of a fourteen-year-old girl, make no reference to her age, often using code words such as “fresh, young or innocent,” and, within minutes, johns (buyers) call in from the area, asking the rates and wanting to arrange a meeting.  Reporter Amber Lyons, when investigating human trafficking and interviewing a john, made the astute comment that, thanks to sites such as Backpage.com, you can order a girl as fast as you can order a pizza, sometimes even faster.  Selling the Girl Next Door, (CNN television broadcast Jan. 23, 2011).  Is this the gluttony we want our country known for?

In 2010 after years of being hounded by many Attorneys General and human trafficking groups, Craigslist.com finally shut down its adult services section.  Ryan Singel, Craigslist Shuts Down International “Adult Services” Sections, Wired.com (Dec. 18, 2010, 3:18 PM), http://www.wired.com/business/2010/12/craigslist-adult-services-international/.  Since the shut down, Backpage.com has seen a significant hike, and it seems that traffickers merely migrated to Backpage.com, a site where you can buy a couch, a car, and a girl, all with the click of your mouse.  Id.

Until about five years ago, sex trafficking of both adults and children occurred in traditional venues, such as street corners, alleys, and bus stops.  NPR Staff, Online and Anonymous: New Challenges to Prosecuting Sex Trafficking, NPR (Aug. 3, 2013, 6:28 PM), http://www.npr.org/2013/08/03/208664066/online-the-web-of-sex-trafficking-can-be-even-more-obscure.  The Internet and social media alone, however, have completely changed the game.  Id..  Ron Hosko, the assistant director of the FBI’s criminal investigative division, spoke to NPR one week after the FBI announced one of its largest human trafficking stings, in which 105 girls between the ages of thirteen and seventeen were rescued, and 150 pimps were arrested in seventy-six cities across America.  Scott Neuman, FBI Official: Internet A Key Recruiting Tool for Sex Traffickers, NPR (Aug. 4, 2013, 11:32 AM), http://www.npr.org/blogs/thetwo-way/2013/08/04/208876861/fbi-official-internet-a-key-recruiting-tool-for-sex-traffickers.  Hosko explains that the Internet is the key tool in recruiting child prostitutes.  Id.

The FBI had been monitoring Backpage.com, as well as other websites.  Pimps were discovered recruiting in affluent neighborhoods in Virginia with the mere tool of Facebook, by complimenting girls’ photos and hinting at opportunities to make money.  Id.  The girls were lured in under false pretenses for cash, as any fourteen-year-old girl usually wants some money for items like that new pair of Uggs or an iPhone she didn’t get for Christmas.  Hosko warns, though, that shutting down Backpage is not as easy as ripping off a Band-Aid.  If the site’s adult services section was to be shut down as Craigslist’s was, he predicts traffickers will most likely resort to darker corners of the Internet where regulation is close to impossible.  Id.  The conspicuous nature of Backpage.com, which makes ordering a girl so quick and easy, also makes tracking the transaction easier for law enforcement officers.

And it is not just the easy buying and selling that the Internet allows.  A pimp can be living in suburbia and have four girls locked up in his home, forcing them to perform acts in front of a webcam for hourly rates to johns who pay online.  This means the trafficking can be global without the girls so much as breathing the air outside their prison.  Sunshine de Leon covered such a story for CNN, where she interviewed victim Andrea.  Andrea had been lured from her home in a village in the Philippines by a lead from her cousin regarding a job for a high-paid babysitter in the city.  She arrived, however, to a prisonlike cyber-sex den.  “For the next few months, Andrea said she was one of seven girls, between age 13 and 18, who spent day and night satisfying the sexual fantasies of men around the world.  Paying $56 per minute, male customers typed their instructions onto a computer and then watched via a live camera as the girls performed sexual acts.  She said the girls were often forced to watch the men they served on screens.”  Sunshine de Leon, Cyber-Sex Trafficking: a 21st Century Scourge, CNN, http://www.cnn.com/2013/07/17/world/asia/philippines-cybersex-trafficking/ (last updated July 18, 2013).

As much as the Internet has negatively facilitated sex trafficking with sites such as Backpage.com, law enforcement officials would be equally lost without it.  Technology has helped to combat human trafficking by allowing law enforcement officers to identify perpetrators more easily.  Law enforcement officials can track their cell phone records and credit card transactions, thus identifying sellers and mapping criminal activities.  Ieva Pundita, Technology and Human Trafficking: Friends or Foes?, McCain Inst Women in Int’l Sec Blog (July 16, 2013), http://womenininternationalsecurity.wordpress.com/2013/07/16/technology-and-human-trafficking-friends-or-foes/.

B. The hotel industry: the modern-day pimps new street corner.

The pushback to this evidentiary trail is that buyers and sellers often operate with prepaid cell phones and credit cards to preserve their anonymity and leave little trace.  Because of the Internet’s effect on the nature of trafficking, rather than in alleys, bus stops and on the streets, the exchange is often done in hotel rooms where traffickers believe they have anonymity.  Thus, the hotel industry plays a significant role in sex trafficking, serving as the perfect venue for the pimps to deliver the underage girls to the johns—ranging from construction workers and truck drivers to doctors and engineers.  A big question on the table then is whether a potential sex trafficking victim could hold these hotels liable.

Currently there is no case law on point to hold hotels liable for human trafficking and failing to report or respond.  See Michelle Guelbart & Robert W. Lannan, The Hotels Role in Ending Child Sex Trafficking, EPCAT-USA, http://ahiattorneys.org/wp-content/uploads/2013/05/Addressing-Human-Trafficking-Activities-in-Hotels-Lannan-and-Guelbart.pdf (last visited Jan. 11, 2014).  Common law says failing to act or failing to realize that action would facilitate aid does not impose liability.  Restatement (First) of Torts § 314 (1934).  However, there is a potential hook for liability in the case of special relations: “an innkeeper is under the duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm.”  Id.

“The relation existing between an innkeeper and his guest is much like that existing between a common carrier and its passenger, and, while not an insurer of the personal safety of the guest, the proprietor of the hotel is held, and ought to be held, to the exercise of a very high degree of care for the protection of his guests against the negligent acts of servants employed therein.”
 Rice v. Warner Hotel Co., 201 Ill. App. 530, 537 (Ill. App. Ct. 1916) (citation omitted).  A “very high degree of care” includes the duty to protect against harm by third parties.  Cantwell v. Peppermill, Inc., 25 Cal. App. 4th 1797 (Cal. Ct. App. 1994) (reversing dismissal of action against a restaurant and bar brought by customers injured in a bar fight).

Banks v. Hyatt Corporation et al. explains that a very high degree of care is higher than the ordinary standard of care.  722 F.2d 214 (5th Cir. 1984).  In Banks, a hotel guest was shot outside the entrance to the hotel and shopping mall.  Id. at 215.  The mall owner had title of the ground where the shot occurred, but the hotel was held liable because it failed to take reasonable precautions to deter the type of criminal activity, which resulted in a guest’s injury.  Id.  The court explains the mall’s duty of care to invitees does not include a duty to adopt precautionary measures to reduce the general risk of criminal assault.  A hotel’s duty to its guests, however, does embrace a responsibility to take reasonable precautionary measures.  Id. at 217.

Reasonable precautionary measures are defined in Bass v. Gopal, Inc.  395 S.C. 129 (2011).  Here, the plaintiff was shot in the leg outside a motel, which was known to be in a dangerous area.  The court defines reasonable precautionary measures as protecting a guest from foreseeable harm.  Id. at 139.  The court identified four approaches courts have taken to assess whether a crime is foreseeable enough to require a hotel to take some action to prevent it—and, in turn, what preventative action is reasonably necessary: (1) the  “imminent harm rule,” (2) the “prior or similar incidents test,” (3) the “totality of circumstances approach,” and the “balancing test” approach.  Id. at 135–39.

The imminent harm rule says the harm must be imminent for the hotel to have a duty.  Id. at 135.  The prior incident test says foreseeability may only be established by evidence of previous crime on or near the premises.  Id. at 136.  Both of these approaches have been dismissed for being outdated or illogical.  The totality of circumstances approach requires courts to “consider all relevant factual circumstances, including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.”  Id. at 137 (citation omitted).  However, the court rejected this approach as being too burdensome for hotels, requiring security measures that would price hotels out of some neighborhoods.  Id. at 138.  Lastly, the balancing test approach seeks to balance the degree of foreseeability of harm against the burden of the duty imposed.  Id.  So, even if a hotel sees signs of human trafficking and fails to respond, the facts and scenario must pass one of these tests for liability to exist, and because these tests are not standard in every jurisdiction, liability cannot be guaranteed; other efforts must also be made via the hospitality industry.  See The Hotels Role in Ending Child Sex Trafficking.

Leaders of the cause are begging hotels and companies to start taking an active stand in the fight.  One primary method being advocated is the establishment of “The Code” or “The Tourism Child-Protection Code of Conduct.”  Id.  This plan requires companies to establish a policy against sexual exploitation of children, to train employees in child exploitation and how to report it, to include a clause in contracts of a zero tolerance policy for sexual exploitation of children, to provide information to travellers on children’s rights, the prevention of sexual exploitation and how to report suspected cases, to support and engage stakeholders in the prevention of sexual exploitation of children, and to report annually on their implementation of The Code.  Id.

This process keeps all workers held accountable, aware, and in cognizance with the issue at hand: human slavery occurring under their nose.  Hilton, Delta Airlines, and Wyndham are all current signatories, implementing The Code.  Id.

C. The role of legislation, state and federal, is important to win this fight.

In order to truly combat this phenomenon, however, federal regulations must be put into place.  Despite how prevalent Internet use by traffickers may be, the United States supports an open net policy, refusing to uphold domestic law regulating Internet space.  Examples of laws that have been rejected are numerous, such as the Communications Decency Act, which attempted to criminalize “knowing” transmission of obscene messages to a child under eighteen.  In Reno v. ACLU, the Supreme Court declared the act was  “a content-based blanket restriction on speech.”  521 U.S. 844, 868 (1997).

The Child Online Protection Act (COPA), which criminalized “knowing or posting for commercial purposes content harmful to minors,” was enacted by congress after the holding in Reno.  The Court in Ashcroft v. ACLU responded similarly, stating COPA burdened free speech rights by limiting access to some protected speech.  542 U.S. 656 (2004).

Congress finally got it right with the Children’s Internet Protection Act (CIPA), which was upheld by the Court in 2003.  United States v. American Library Ass’n, Inc., 539 U.S. 194 (2003).  CIPA prevents public libraries from receiving federal assistance to provide Internet access unless such libraries install software that blocks obscene images.  Id. at 201.  The Court held that CIPA was not in violation of the First Amendment and was a valid exercise of Congress’ spending powers.  Id. at 214.

These cases are just a few examples of the struggle to regulate the internet, and because of the constitutional protections our founding fathers created for us, regulation would hinder the freedom of many others in the process of protecting the freedom of those enslaved—quite a Catch 22. Erin I. Kunze, Sex Trafficking Via the Internet: How International Agreements Address the Problem and Fail to Go Far Enough, 10 J. High Tech. L. 241, 256 (2010).

States are becoming aware of the role of online ads, “adding laws that may make it more tricky for websites like Backpage.com to continue their adult section.  The state of Washington recently passed SB 6251, requiring sites to verify the ages of those involved in the adult ads, but on June 4 a federal judge issued a temporary restraining order; Backpage.com is attempting to stop the law, claiming it violates the Communications Decency Act (CDA), as well as the First and Fifth Amendments.  States like New York and New Jersey are attempting to legislate in quite similar ways, specifically addressing online advertisements,” affecting sites such as Backpage.  Leah Ringo, Online Sex Trafficking, Bill Track 50, http://www.billtrack50.com/blog/civil-rights/online-sex-trafficking/ (last visited Jan. 11, 2014).

D. Conclusion

So as you suit up this February for the football frenzy—warm in your home with a pizza and blanket—remember that thousands of girls are also suiting up, to be sold faster than the pizza being delivered to your door.  Sex trafficking has only worsened because of the Internet, but hope has not been lost.  As quickly as the Internet changed the game, we too can do the same for our daughters, wives, sisters and friends who are currently suffering from this monstrous industry.  Whether it means being more aware of what you see, enacting “The Code” for your hotel or company, or merely writing to your local congressman to propose legislation such as the state laws enacted to address online advertisements. The game is not over yet, and it is up to us to find a way to win.

meghna

Meghna Rao is a second year law student at the Moritz College of Law. She has performed legal work at a Fortune 500 company as well as a midsize Ohio law firm. She also has expertise in political field work, such as grassroots organizing and fundraising.