Peter MacKay, partner at Baker McKenzie LLP, is a former federal cabinet minister and Crown attorney.
Children, primarily young girls, are regularly targeted, groomed and sold by sex traffickers online. This appalling reality is happening everywhere, including here in Canada, and is growing at an alarming rate via increasing ease of access on the internet. Unlike in Canada, U.S. law immunizes online companies who facilitate sex trafficking from liability for the damage and misery done to minors sold on their websites. Section 230 of the Communications Decency Act (CDA) reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Carriers are therefore sheltered from legal liability that might be used to hold them accountable for what is done on their sites. CDA 230 creates a dark, dangerous and far-reaching blanket protection that enables the worst aspects of humanity to fester and spread online. The U.S. courts have regularly applied Section 230 of the CDA to protect offending sites like Backpage.com, which is known for advertising children for sex.
While debate rages in the U.S. Congress about the reach and perverse impact of CDA 230, lost in the white noise of other daily controversies and Twitter wars, the U.S. delegation to the North American free-trade agreement talks has attempted to include similar immunity protections for internet service providers in NAFTA 2.0 as necessary to protect business interests across North America. Canada’s Foreign Minister and negotiating team must not stand for this.
The last thing we should be doing is transplanting immunity for online offenders who prey upon and profit from the horrific abuse of children in Canada. Backpage.com has become the leading marketplace for child sex trafficking in the United States. In one report, it was found that 73 per cent of child-trafficking reports in the U.S. involve the website. To date, despite repeated attempts by child survivors to hold Backpage.com accountable for involvement in their exploitation, the website has been able to hide behind the cloak of the Communications Decency Act.
Backpage.com’s alleged involvement in blatant criminality and the sadly futile efforts by victims and their lawyers to hold it accountable are now the subject of a harrowing and powerful documentary film, I am Jane Doe, directed by Mary Mazzio. The film provides a glimpse into both the wreckage left behind for the children and families of those who have been sold on Backpage.com, and the victims’ uphill battle to overcome Section 230 immunity as they seek justice.
That internet freedom should be protected and encouraged, as espoused by many, is true, but within reason. There must be clear limits which maintain societal standards when it comes to protecting our children from all forms of exploitation. Offenders must be held accountable for the immeasurable harm done. A ban on facilitating access to minors for sex is surely a reasonable limit on internet freedom.
While there is currently a bipartisan congressional effort under way to amend legislation to end the abuse of Section 230, there is a parallel campaign by some in the U.S. trade delegation to extend these very protections to a revised NAFTA and expand the reach of this immunity north of the border to Canada. In the U.S., as in Canada, politics figures very prominently in the outcome.
Litigation and the public backlash against Backpage.com, coupled with the obvious failings of the CDA, provides clear reasoning why these types of immunity protections must never be extended to Canada through a renegotiated NAFTA. Canada must resist any attempt to include similar protections in NAFTA without, at a minimum, explicitly eliminating any immunity provisions for websites that knowingly or recklessly facilitate sex trafficking. In our firm’s pro bono efforts to support victims of human trafficking (at Covenant House and Boost CYAC) and those ensnared in the sex trade in Canada, one seldom finds a young person who wasn’t sold via Backpage.com. Surely a progressive approach to trade and commerce or any public policy must also include significant efforts to protect our most vulnerable and valuable citizens – our children – from the worst form of exploitation, commercial rape for profit.
As Canadian trade negotiators promote social and values-based issues at the core of their negotiating strategy with our U.S. neighbours and other trade partners around the globe, we must be steadfast in demanding protection of children from the perils of online criminality. The basic rights of our children must not be sacrificed on the altar of internet freedom and digital commerce. Our collective effort to protect and promote the well-being of the next generation must surely be given primacy in the debate over trade deals and internet freedom.