California Sen. Kamala Harris’s name came up multiple times at a Senate hearing last month on child sex trafficking legislation, an acknowledgement of her long record fighting the crime.
But Harris’ name does not appear – at least not yet – as a co-sponsor of the trafficking legislation in question, which targets Backpage.com, a web site for classified ads that Harris once labeled “an online brothel.” Activists blame the rise of internet advertising and Backpage, specifically, for an 846 percent spike in reports of suspected sex trafficking since 2010.
“She’s conspicuously absent from being a sponsor” of the bipartisan legislation, known as the Stop Enabling Sex Traffickers Act, says Lisa Thompson, vice president of the National Center on Sexual Exploitation. “That raises eyebrows.”
Harris’ public reticence on the issue is a departure from her time as California attorney general, when she made sex trafficking one of her signature issues and zealously prosecuted Backpage.com.
Behind the scenes, however, Harris is heavily involved in the negotiations on the bill, her first major foray into Senate dealmaking. Harris, a potential 2020 presidential candidate, has assumed the role of point person for a handful of Democrats and some of the country’s most powerful tech companies, including Google and Facebook, who worry the bill could undermine internet freedom.
Her bid to be a power broker has her walking a delicate political tightrope. On the one hand, the neophyte legislator is trying to represent Silicon Valley, a powerful constituency in her home state – not to mention a critical funding source for a Democratic presidential run. On the other, she risks angering anti-trafficking advocates she once teamed with, as well as feeding the narrative pushed by some on the left that she’s too cozy with corporate interests.
The internet industry gave more than $34 million to candidates and political groups in 2016, according to a tally from the Center for Responsive Politics. Harris received the fourth-highest sum from the industry of all federal candidates last election, behind only presidential contenders Hillary Clinton and Bernie Sanders and Senate Democratic leader Chuck Schumer of New York.
“This bill is really putting her on the spot to choose between millions from the tech industry … and families who have been through the ringer,” says Jamie Court, president of the nonprofit consumer advocacy group Consumer Watchdog.
As attorney general from 2011 through 2016, Harris was a scourge of Backpage, something current California Attorney General Xavier Becerra nodded to in his Senate testimony. “I want to thank her for all the work that she has done over the years [on sex trafficking], previously as the attorney general for the State of California,” he said in his opening remarks.
In August, however, a Sacramento judge delivered a blow to the state’s lawsuit against Backpage.com, which was launched by Harris and pursued by Becerra. The judge threw out the 13 pimping charges against the site’s executives, ruling they were protected by a federal communications law.
It’s not the first time a judge has tossed charges against Backpage.com, citing a clause of the 1996 Communications Decency Act, which grants web site operators partial immunity from liability for the actions of their users. Trafficking victims and others have lost more than 20 lawsuits against the site since 2010, which Anti-trafficking advocates blame on judges’ faulty interpretation of the law. In his testimony, Becerra asked Congress to clarify the Communications Decency Act to make clear state prosecutors like him have the legal authority to take Backpage.com to court for trafficking crimes.
Harris, for her part, made an almost identical request in a 2013 letter she and 46 other state attorneys general sent to leading members of Congress. In the letter, the attorneys general asked lawmakers to amend the ‘96 law to allow them to enforce state criminal law against internet platforms. Currently, there is only a carve-out for federal crimes. The 2013 proposal asks for the same carve-out to apply to state criminal statute – far broader than the 2017 Senate measure, which just applies to sex trafficking. The request prompted the Electronic Frontier Foundation, an internet freedom advocacy organization, to lambast Harris and her fellow attorneys generals at the time for threatening to “severely undermine the most important law protecting free speech on the Internet.”
An aide to Harris who declined to be named says the senator is not reversing her 2013 position as she negotiates for changes to the Stop Enabling Sex Traffickers Act. Rather, they said she is working with the bill’s authors “to explicitly address sex trafficking” while avoiding unintended consequences that could harm the internet.
The bill’s tech critics – led most vociferously behind the scenes, multiple sources involved in the negotiations say, by Google – also cite those unintended consequences. The search engine did not respond to a request for comment, though Vice President for Public Policy Susan Molinari issued a statement before the Senate hearing in September.
A lawyer for the Internet Association, a trade association that represents Google, Facebook and a host of other online heavyweights, testified in the Senate that while the bill is “well-intentioned,” its vague language could open up internet service providers to frivolous lawsuits and chill online activity. The lawyer, Abigail Slater, said it was possible to find middle ground, however, calling for “a more tailored bill.”
Likewise, Facebook Vice President of U.S. Policy Erin Egan explained in a statement that the social media site hopes to strike a balance between “giving victims of these horrible crimes and their advocates more tools to fight platforms that support sex traffickers … while also ensuring that [the Communications Decency Act], a law critical to the function of the Internet, is not unintentionally eroded.”
Harris is trying to help broker that agreement. Sen. Richard Blumenthal, one of the legislation’s lead sponsors, acknowledged as much at the Sept. 19 hearing, saying Harris “has been very helpful in clarifying some of the issues on this bill.” The question is whether there is genuinely a middle ground that gives the bill the kind of teeth anti-trafficking advocates are seeking, while assuaging concerns about curbing free speech on the internet.
Backers of the bill agree there are ways to tighten the language to narrowly target sites actively participating in sex trafficking. But they complain that the tech lobby is currently pushing for much more than that – measures that would gut key sections of the bill.
That’s a nonstarter for the bill’s sponsors, led by Blumenthal and Ohio Republican Rob Portman, as it is for many of the anti-trafficking groups supporting the measure. “We’re not looking for token fixes, we’re looking for substantive change that changes the status quo,” says Thompson of the National Center on Sexual Exploitation. Thompson’s group is supporting the House version of the legislation, which gives law enforcement even broader authority than the Senate’s proposal.
Harris is far from the only Democratic hold-out on the legislation. As of Oct. 9, few Democrats from California’s congressional delegation had agreed to co-sponsor either the House or Senate bill. Nor have fellow 2020 presidential prospects Sens. Bernie Sanders, D-Vt. Cory Booker, D-N.J. or Kirsten Gillibrand, D-N.Y.. A number of those Senate Democrats, including California’s Senior Senator Dianne Feinstein, are waiting to see if Harris can broker a deal before weighing in, several Senate aides say.
For Harris, the political implications could be just as weighty as the policy ones. Court, of Consumer Watchdog, warns that if Harris plays a role in blocking or watering down the sex trafficking bill, it will tarnish her progressive credentials going into 2020. “She can come out for single payer [healthcare] all she wants,” he says, but “advocates like myself and families who are affected are never going to let her forget.”
Emily Cadei: 202-383-6153, @emilycadei