Coronavirus has impacted society unlike any event in our lifetimes, with unprecedented quarantine and social distancing measures leading to isolation and strained social bonds. Market conditions have likewise changed dramatically; mandated closures and constraints on businesses weigh heavily on most sectors of the economy. In a race to be seen as good corporate citizens and signal concern for the common good, companies are shifting production priorities in the most dramatic way since World War II. General Motors is making ventilators and Brooks Brothers is manufacturing masks for medical professionals. Other companies have expanded services to cultivate a similar image of social responsibility. Amazon, for example, made many titles freely available on Prime Video, and many academic publishers have made their materials open access.
Yet some, pornographers foremost among them, have sought to capitalize off of the crisis to grow their profits. Pornhub is offering free access to its “premium” content, advertising it via well-placed articles in popular websites, where “cheeky” references playing on off-color innuendos about porn use during quarantine are nearly universal. Mashable, a popular site for idle scrolling, published an article promoting Pornhub’s offer. The once “countercultural” news and culture publication Vice did the same, quipping that one should wash their hands after using the obscene content. In the fitness periodical Men’s Health, an article taglined “If government orders weren't enough to keep you home, Pornhub's HD content surely will” served as another poignant example of the site’s double entendre–driven media strategy.
Already reviled in certain religious and conservative quarters of the Internet, Pornhub’s indecent proposals are beginning to receive wider outcry, particularly from an unusual alliance of right-leaning and feminist circles. The debate over regulating online pornography reached a fever pitch in the late summer and fall, thanks in part to a larger public debate over whether the Internet constitutes part of the public square and what rules should therefore apply online. Editorials called for a rewrite of Section 230, a part of the 1996 Communications Decency Act that protects hosts and users from liability for publishing illegal materials uploaded by third-parties. Many of these articles highlighted recent revelations of people suffering at the hands of traffickers. Another common theme was the inaction of Big Porn, a sector consisting of the largest porn sites, which publish content from major studios alongside reams of amateur videos. Among the sins of the dozen or more websites which constitute Big Porn, the inaction of Pornhub stands out in particular. Rather than remove videos depicting minors or assaults, the site has preferred to leave them up, surely because the more views a video has, the more retailers—from pay-per-view porn sites to the food delivery service Eat24—will pay to advertise.
In recent weeks, viral tweets that describe content porn sites have refused to remove have painted a harrowing picture of the extent of these sites’ inaction. One abuse survivor, Avri Sapir, documented her traumatic experiences via a string of Tweets on March 29th. She relates that she was sexually abused from the time she was nearly a toddler to when she was fifteen. Recently, Sapir found videos depicting her abuse uploaded by the dozen onto Pornhub. She documents that, though she flagged them countless times, no action was taken. As the number of views the videos received increased, so did the ads. She didn’t just have to relive the traumas of her molestation again—she had to see her suffering monetized. Though she was clearly underage in most of the videos, it took over a week for Pornhub to remove the flagged content. And while she was eventually able to get videos where she was clearly underage removed, videos where her age was “ambiguous” remained. Many continued to be monetized by Pornhub.
Other stories suggest this has been ongoing for years. Rose Kalemba’s story is another tragic reminder of the human trafficking and sexual violence endemic to Big Porn. She came forward early this year with the story of how she was kidnapped at knifepoint a decade ago. Kalemba’s assailants drove her to a remote area and raped her for more than half a day, while another man filmed the heinous act. After being released, she returned home bloodied, beaten, and feeling so degraded that she attempted suicide soon after. Shortly, videos of the assault appeared on Pornhub, circulated by her peers. She was alienated and judged by them for her victimhood. Like Sapir, Kalemba pleaded with Pornhub to remove videos of her assault, declaring that she was a minor and that it was her in those videos. As in Sapir’s case, Pornhub ignored her cries. Only when she posed as an attorney and demanded removal of the videos did Pornhub take action.
These well-publicized and recent examples of horrible crimes exacerbated by a website’s complicity are not insular. Videos depicting brutal rapes and underage persons forced to perform obscene acts are far from unheard of on “mainstream” pornography websites like Pornhub. They are rather part of a repeated pattern of grave irresponsibility by Big Porn, which prefers illegal content’s lucrative ad revenue to protecting the vulnerable. Rose Kalemba, Avri Sapir, and countless other victims can attest to this grim reality.
When a pornography website allows 58 videos of a kidnapped child’s abuse to stay online for months, there is a weakness in existing law. It is glaringly obvious that enforcement actions are necessary to hold traffickers and their Big Porn accomplices accountable. While not perfect, a regulatory remedy, created in the aftermath of a major enforcement action two years ago, may well exist and can be used to punish Big Porn’s misdeeds.
Fronting as an online marketplace similar to craigslist, Backpage provided a platform for human traffickers and abusers for years. Presented as an “adult” classifieds section, the website hosted a virtual bazaar of prostitutes and sexual services which could fulfill even the sickest fantasies. This site took advantage of gray areas within the law, notably the so-called “Safe Harbor” in the Communications Decency Act. The “Safe Harbor” exists in the Act’s Section 230, which gives broad protection to websites publishing third party content and listings. This legislation nearly indemnified Backpage from any liability for illegal content that users posted on their platform.
In 2014, two children who had been prostituted on Backpage sued the site for its crucial role in facilitating their abuse. These plaintiffs demonstrated that Backpage wasn’t merely inactive in preventing human trafficking; it was complicit. This and a later 2016 petition for certiorari identified a pattern: Backpage changed the wording of classifieds and adjusted algorithms to allow traffickers on their platform to evade law enforcement.
Fortunately, coverage of Backpage’s complicity brought Congress to action. In 2017, the Senate Permanent Subcommittee on Investigations released a report titled “Backpage.com’s Knowing Facilitation of Online Sex Trafficking.” There, Senator Rob Portman stated that there was an 846% increase in reports of suspected sex trafficking of minors in recent years. The National Council for Missing and Exploited Children told the subcommittee that this increase was mostly driven by use of the Internet to advertise and solicit prostitution. A majority of spending on sex trafficking, it found, was tied to Backpage. The Senate also established beyond a reasonable doubt what victims and sympathetic journalists had known for years: Backpage knew it was facilitating child sex trafficking and prostitution, yet did nothing about it.
Because of the actions of brave abuse survivors and public servants, the next year saw Backpage’s downfall. On April 6, 2018, instead of a panoply of prostitution classifieds, a would-be john would see a notice announcing Backpage had been seized in an enforcement action by the FBI, the IRS, state attorneys general, and others. That same week, law enforcement raided the Sedona, Arizona, home of cofounder Michael Lacey, who had been involved in making Backpage a haven for sex trafficking.
Shortly after law enforcement agencies took down Backpage, President Trump signed the “Fight Online Sex Trafficking Act” (FOSTA) and the “Stop Enabling Sex Traffickers Act” (SESTA) into law. This legislation eliminated uncertainties in the CDA’s “Safe Harbor” doctrine which for years insulated sites like Backpage from civil and criminal liability. The most dire consequences of Backpage’s long existence will never be undone. Because of it, countless people will carry lifelong emotional, mental, and physical scars. However, the government’s precedent could prevent a protracted legal battle against a platform similar to Backpage in the future. Previously, a vague prohibition of “participating in a venture” related to sex trafficking allowed platforms hosting trafficked materials to skirt penalties with the help of strong legal defense teams. However, SESTA clearly defined “participating” as support or facilitation of sex trafficking and made it clear that Section 230 of the Communications Decency Act should not be construed as a barrier to federal or state action against sex traffickers and their allies.
Any confusion about the parallels between Backpage and Big Porn, Pornhub in particular, is easily dispelled. Just as Backpage’s executives and counsel attempted to argue that their site constituted protected speech, those who are in the pockets of Pornhub do the same. Just as Backpage was complicit in child trafficking, rigging site algorithms to avoid the scrutiny of law enforcement, Pornhub’s refusal to remove all but the most obviously illegal content depicting rape or kidnapping victims demonstrates culpability.
The 2018 laws signed to fight trafficking on the internet may well be justly applied to platforms like Pornhub, given their pattern of inaction that mirrors Backpage’s. After all, there is little doubt such sites have reaped benefits from the abuse of children and enslavement of the vulnerable. In any other crime, accomplices are punished. Thanks to prudent action by the government, corporate accomplices to sex trafficking can be punished too.
Even a single enforcement action against Big Porn would reap considerable benefit. If tomorrow, everyone typing “Pornhub” into a search bar arrived at a white page emblazoned with the shield of the Justice Department and announcing seizure, XHamster, RedTube, and countless other porn sites would likely fall into line and implement user policies and moderation to prevent trafficking. With a singular enforcement action, law enforcement could save many people like Avri Sapir and Rose Kalemba from the stigma and trauma they faced due to Big Porn’s inaction.
To ensure such victims are protected and to prevent future victimization, enforcement actions must be conducted regularly and proportionately to the full extent of the current laws. No matter how crucial a rewrite of Section 230 of the CDA may be in the long run, sex traffickers and their well heeled enablers must be stopped first. Fortunately, Attorney General William Barr and Attorneys General of all fifty states now have far greater latitude to save lives than they did just four years ago. It is up to them to wield SESTA and FOSTA against offenders and to hold Big Porn accountable.
