Human trafficking has remained a persistent global issue, further exacerbated by the COVID-19 pandemic. The lack of international cooperation and coordination among investigative units and internet service providers has hindered efforts to effectively use data in identifying and combating online human trafficking. Fixing current issues within legislation and using new technologies cooperatively between states is need to fight the problems created by COVID-19.
Pre-COVID-19 Success and Failures
Beginning in the early 2000s, the United States, accompanied by the United Nations, launched initiatives aimed at combating global human trafficking through “prevention, protection, prosecution, and partnership,” as reiterated in the United States’ 2021 National Action Plan.[1] Efforts like the Trafficking Victim Protection Act (“TVPA”) established a framework for addressing trafficking through investigation, prosecution, and victim protection.[2] The United Nations Convention against Transnational Organized Crime (“UNTOC”) encourages parties, including the U.S., to establish “comprehensive policies [and] programmes,” and to have law enforcement and agencies “cooperate with one another by exchanging information.”[3] While these frameworks created the foundation for prosecuting international trafficking crimes, the COVID-19 pandemic introduced new challenges.[4] The pandemic exacerbated “existing vulnerabilities, such as gender discrimination, unemployment and underemployment, lack of education, lack of access to State social services and stigma have been worsened.”[5] “In tandem, the agencies [like the UN Human Rights Office or the International Criminal Police Organization]… have lost funding and staff have faced challenges in performing their normal victim support work.” [6] Thus, the standard of support decreased compared to before the pandemic.
Identifying the Online Problem
The COVID-19 pandemic not only reduced funding but also created new technological vulnerabilities, which human traffickers quickly exploited by developing new methods to target people online.[7] Traffickers “quickly adapted their modus operandi and business models, increasingly using digital tools and online platforms,” to find and traffick victims.[8] Cybercriminals also began to use human trafficking in tandem with investment fraud scams. “Human trafficking-fueled cyberfraud took shape during the pandemic,” contributing to an overall rise in cybercrime.[9] With “trafficking moving even further underground,” and cybercrime expanding, the result “has been delayed investigations and prosecutions.”[10] International law enforcement agencies, particularly in the United Nations (“U.N.”), are finding themselves unable to effectively investigate human trafficking online; “in many countries there are, at present, no robust national legislative frameworks on online sexual exploitation,” especially for cross-border cybercrime.[11] In addition, resource constraints, like diminished funding and reduced staffing, have made it difficult to investigate online human trafficking due to jurisdictional challenges and definitional issues within the vast landscape of the internet.
Efforts in Relation to Definitions and Jurisdiction
International parties have adopted different approaches to combat the resource, definitional, and jurisdictional challenges associated with online human trafficking. There is no universal juristiction between states, only basic principles established by the United Nations Convention against Transnational Organized Crime in Article 15.[12] The problem arises in the investigation, where states for the most part decide for themselves if their juristiction warrants an investigaton.[13] There are definitional issues in legislation due to lack of agreement of terms between states, like if “modern slavery” is senominise with “human trafficking” or which means properly constitute the act of trafficking.[14]The acceptance of certain U.N. definitions exists but it has failed to evolve with the expansion of the internet.[15]
Beyond establishing legislation to prosecute online trafficking, the United Nations Office of Drugs and Crime (“UNODC”) seeks to re-encourage partnerships and promote data sharing between agencies to fight these emerging issues.[16] This means “[p]riority should be given to the collection of data on forms of exploitation that might be increasing (e.g. online sexual exploitation).” [17] The UNODC believes that the most immediate actions needed are to enhance data sharing among parties for online investigations and to strenghen their capacity to prosecute online trafficking.[18] In 2017, U.N. created the Counter-Trafficking Data Collaborative (“CTDC”) to facilitate data sharing and foster international cooperation by making “data on human trafficking readily accessible to analysts, academics, practitioners and policy-makers.”[19] However, critics have pointed out issues with the actual data compiled “due to the hidden nature of [trafficking].”[20]
Along with the UN’s Palermo Protocol and the initiative “Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,” the United States (“U.S.”) passed the Trafficking Victims Protection Act (“TVPA”) in 2000. Since then, the U.S. has played a key role in updating the act, including advocating for increased funding as recently as 2024.[21] However, issues with these acts and their updates persist, include misunderstandings about what constitutes human trafficking, how coercion is defined, and the perceptions of trafficking survivors among justice system stakeholders.[22] While the creation of robust legislation in United Nation parties and the incentivization of prosecution for trafficking have certainly helped, the definitional issues surrounding human trafficking remain unanswered by the U.S.[23]
On April. 11th, 2018, the U.S. enacted the Fight Online Sex Trafficking Act (“FOSTA”), which increased the liability of Internet Service Providers (“ISPs”) for sex crimes and lowered the mens rea prosecutors were required to prove.[24] Critics argue that by incentivizing censorship by ISPs, FOSTA may jeopardize the First Amendment.[25] In addition, FOSTA may be “putting [sex workers’] safety at risk,” forcing them to fall into illegal spaces.[26] While FOSTA has led to a general reduction in online sex ads, “FOSTA’s deterrent effect on trafficking has yet to be seen.”[27]Additionally, FOSTA shares “many of the flaws of earlier approaches,” including failing to address “problematic definitional questions,” in prosecuting online sex traffickers.[28] In contrast, “[f]or over a decade, online advertising has been the main tactic used by traffickers to solicit buyers for commercial sex.”[29] In 2020, over eighty percent of the U.S. Department of Justice’s sex trafficking prosecutions involved online advertising.[30] While FOSTA might not be a perfect solution, it is a step towards combating how modern traffickers exploit technology.
Proposed Technological Solutions
In addition to taking down these problematic advertisements, agencies that possess the proper technology can track the “financial transactions made by criminal members to upload” the advertisements.[31] Data scraping is used to train machine learning algorithms that assist law enforcement in identifying trafficked persons.[32] This method can improve the efficiency of law enforcmenet investigations, reducing costs and freeing up resources which were hurt by the COVID-19 pandemic.[33] Identifying a single online trace of trafficking often leads to many other corroborating cases which, when combined, can make proseuction easier.[34] Additionally, “digital forensics, data scanning tools, smartphone apps and successful collaborations with technology, social media and Internet companies,” can help generate reliable data, which has also been a persistant issue.[35]
Conclusion
Human trafficking has remained a persistent global issue, exacerbated by the COVID-19 pandemic. The pandemic not only created new challenges but also intensified many preexisiting issues for law enforcement investigating online international trafficking. One such preexisting issue is the lack of a clear definitional framework, which remains as problemtatic as ever. The lack of definitional agreement and juristictional constraints between states creates further challenges in data sharing; this inhibits the use of modern technologies and new legislation to efficiently combate online international trafficking.
[1] The White House, National Action Plan to Combat Human Trafficking 2 (2021). https://www.whitehouse.gov/wp-content/uploads/2021/12/National-Action-Plan-to-Combat-Human-Trafficking.pdf.
[2] https://www.govinfo.gov/content/pkg/PLAW-106publ386/pdf/PLAW-106publ386.pdf
[3] G.A. Res. 55/25, at 35 (Nov. 20, 2000).
[4] Id. at
[5] U.N. Off. on Drugs & Crime, The Effects of the COVID-19 Pandemic on Trafficking in Persons, ¶ 1, at 37 (2021) https://www.unodc.org/documents/human-trafficking/2021/The_effects_of_the_COVID-19_pandemic_on_trafficking_in_persons.pdf.
[6] Id.
[7] Id.
[8] UNODC, UNODC and the European Union Call for Renewed Efforts to End Child Trafficking (July 2024), https://www.unodc.org/unodc/en/news/2024/July/unodc-and-the-european-union-call-for-renewed-efforts-to-end-child-trafficking.html.
[9] Juliana Kim, Online Scamming Industry Includes More Human Trafficking Victims, Interpol says, National Public Radio (Dec. 10, 2023) https://www.npr.org/2023/12/10/1218401565/online-scamming-human-trafficking-interpol.
[10] U.N. Off. on Drugs & Crime, supra note 5.
[11] See Id. at 54.
[12] United Nations Convention against Transnational Organized Crime art. 15, ¶¶ 1-4, 2225 U.N.T.S. 209 (Sept. 29 2003).
[13] United Nations Office on Drugs & Crime, Trafficking in Persons: Module 6 – Criminal Justice Responses to Trafficking in Persons, (2021), https://www.unodc.org/documents/human-trafficking/TIP_module6_Ebook.pdf.
[14] United Nations Office on Drugs & Crime, Crime of Trafficking in Persons, United Nations: Education for Justice, https://www.unodc.org/e4j/en/tip-and-som/module-6/key-issues/crime-of-trafficking-in-persons.html (last visited Nov. 18, 2024).
[15] Wesley Schrock, Internet-Era Human Trafficking and the Need for a Better International Legal Instrument, 22 U. Md. L. J. Race Relig. Gender & Class 120, 127 (2022).
[16] See UNODC, The Effects of the COVID-19 Pandemic on Trafficking in Persons, at 76 (2021).
[17] Id.
[18] Id. at 75.
[19] Counter-Trafficking data Collabroative, https://www.ctdatacollaborative.org/page/about#no-back (last visited Nov. 14, 2024).
[20] Al-Tammemi AB, Nadeem A, Kutkut L, Ali M, Angawi K, et al., Are we seeing the unseen of human trafficking? A retrospective analysis of the CTDC k-anonymized global victim of trafficking data pool in the period 2010–2020, PLOS ONE (2023) https://doi.org/10.1371/journal.pone.0284762.
[21] U.S. Dep’t of State, Office to Monitor and Combat Trafficking in Persons, Report to Congress on 2024 Trafficking in Persons Interim Assessment Pursuant to Trafficking Victims Protection Act (2024).
[22] National Institute of Justice, Federally Backed Human Trafficking Task Force Model Yields Progress, and Opportunities for Continued Growth (Jan. 6, 2022), https://nij.ojp.gov/topics/articles/federally-backed-human-trafficking-task-force-model-yields-progress.
[23] Id.
[24] Schrock, supra note 13 at 144.
[25] Id.
[26] Id. at 145.
[27] Id.
[28] Id. at 146.
[29] Alexandra Gelber, Good Use and Abuse: The Role of Technology in Human Trafficking, UNDOC (Oct. 14, 2021), https://www.unodc.org/unodc/en/human-trafficking/Webstories2021/the-role-of-technology-in-human-trafficking.html.
[30] Id.
[31] Europol Operations Directorate, The Challenges of Countering Human Trafficking in the Digital Era, 5 (2020) https://www.europol.europa.eu/cms/sites/default/files/documents/the_challenges_of_countering_human_trafficking_in_the_digital_era.pdf.
[32] Jennifer Musto, The Limits and Possibilities of Data-Driven Antitrafficking Efforts, 36 Ga. State Univ. L. Rev. 1147, 1159 (2020).
[33] Id.
[34] Id. at 1158.
[35] Gelber, supra note 23.
