This is the first in a series of three blog posts addressing technological solutions to combat human trafficking. This post provides context on the issue of human trafficking, including a brief summary of the existing domestic and international legal instruments addressing it. The second blog will discuss the importance of the increased use of technology in the fight against human trafficking, and will provide an overview of the scope of current research on technology and trafficking. The final blog will analyze the efforts of private partnerships to apply technology to create anti-trafficking solutions.
Part I: The State of the Law
“It ought to concern every person, because it’s a debasement of our common humanity. It ought to concern every community, because it tears at the social fabric. It ought to concern every business, because it distorts markets. It ought to concern every nation, because it endangers public health and fuels violence and organized crime. I’m talking about the injustice, the outrage, of human trafficking, which must be called by its true name—modern slavery.” – President Barack Obama
The issue of child trafficking launched into the public eye this summer with news that, in a single weekend, the FBI rescued more than 100 children who were trafficked for sex in more than 70 cities across the country. The youngest victim rescued during the raids was just 13 years old. About 160 pimps were arrested for exploiting the children, and the criminal charges against them will include charges for human trafficking.
The roughly 100 children rescued in these raids represent only a tiny sliver of the global human trafficking epidemic. The U.S. Department of State’s 2013 Trafficking in Persons Report (“TIP Report”) estimates that about 40,000 trafficking victims were identified worldwide in the last year, and the undiscovered victims are even more numerous: social scientists estimate that as many as 27 million men, women, and children are victims of trafficking at any given time.
Defining Human Trafficking
Human trafficking is modern day slavery—forcing an individual to perform work against his or her will. As the TIP Report explains, human trafficking does not necessarily require movement. Victims may be born into servitude or transported for exploitation. They may even give consent to work for the trafficker, and subsequently become victimized.
In the Trafficking Victims Protection Act (“TVPA”), most recently reauthorized in March 2013 as part of the Violence Against Women Act, the United States established statutory definitions for this crime, which affects victims across all labor sectors. Under the TVPA, sex trafficking is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purposes of a commercial sex act.” Sex trafficking is a severe form of trafficking in persons when “the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age.” Likewise, labor trafficking is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery.”
International Human Trafficking Laws
Modern domestic laws such as the TVPA are heavily influenced by the many international instruments created throughout the past century to address the continuing scourge of slavery. While most of them are not accompanied by any enforcement mechanism, the following instruments all address trafficking directly or indirectly:
- The Convention to Suppress the Slave Trade and Slavery (“Slavery Convention”) (1926) vowed to “bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.” The Convention defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised,” and defined the slave trade to include “all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.”
- The Universal Declaration of Human Rights (1948) states, in Article 4, “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”
- The United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) focuses on punishing anyone who “procures, entices or leads away” another person to work in prostitution.
- The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956) amends the Slavery Convention. In an effort to finally eradicate slavery, this convention states that its parties “shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment” of slavery and slave-like practices.
- The International Covenants on Civil and Political Rights (1966) restates in Article 8 the general principle that “no one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.”
- The Convention on the Elimination of all Forms of Discrimination Against Women (1979) includes, in Article 6, the declaration that parties to this convention “shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”
- The United Nations Convention Against Transnational Organized Crime (2000) aims generally to “promote cooperation to prevent and combat transnational organized crime more effectively.” Its two accompanying protocols address the organized crimes of human trafficking and smuggling:
- The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000 Trafficking Protocol”) (2000) states that its purposes are “to prevent and combat trafficking in persons, paying particular attention to women and children; to protect and assist the victims of such trafficking, with full respect for their human rights; and to promote cooperation among States Parties in order to meet those objectives.”
- The United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air (2000) does not address trafficking specifically, but its provisions provide much needed protection to potential trafficking victims, including not being criminally liable simply for being smuggled across a border.
- The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000 Trafficking Protocol”) (2000) states that its purposes are “to prevent and combat trafficking in persons, paying particular attention to women and children; to protect and assist the victims of such trafficking, with full respect for their human rights; and to promote cooperation among States Parties in order to meet those objectives.”
Modern Application
As demonstrated by the preceding list, attempts to eradicate slavery through international law stretch back almost 100 years. We know from our own nation’s history that domestic abolition movements were taking place well before this. Yet, the most recent convention and its accompanying protocol have set the course for how to define, prevent, and prosecute human trafficking in the modern era.
While many of the earlier instruments are purely aspirational and contain few, if any, actual punishments for offending nations, the 2000 Trafficking Protocol is actually a law enforcement instrument. It directs member states to take action to penalize trafficking by aggressively prosecuting it as a separate criminal offense within their borders. It also instructs countries to protect victims of trafficking in a number of ways, including protecting their privacy and security, providing resources for recovery, and offering the opportunity for non-citizens to remain in the country. Finally, it prescribes comprehensive policies aimed at prevention, including research, media campaigns, and updates to public policy where appropriate.
The TVPA, discussed above, was enacted after the United States signed on to the 2000 Trafficking Protocol. The TVPA complied with the Protocol’s prosecution mandate by establishing human trafficking as a federal crime with severe penalties, and creating new crimes of forced labor and sex trafficking, and unlawful conduct laws with respect to using documents in furtherance of trafficking. It also mandates that traffickers pay their victims restitution.
The TVPA complied with the protection mandate by offering federal protections to victims, including eligibility for continued presence in the country in order to assist law enforcement, and the creation of the T Visa, which allows victims to become temporary residents if certain criteria are met.
Finally, the TVPA facilitated prevention by creating the Office to Monitor and Combat Trafficking, which is required to produce the TIP Report, reporting on and ranking countries’ efforts to combat trafficking. The President may impose sanctions on countries that do not meet the minimum standards established in the statute for combating trafficking, and are not making significant efforts to do so.
Modern Solutions to a Modern Crisis
The language in the TVPA, inspired by the 2000 Trafficking Protocol, is not drastically different from the language of prohibition in the very first international instrument, the Slavery Convention of 1926, which prohibited enslavement in the form of “the acquisition of a slave with a view to selling or exchanging him.” The real difference between these instruments is the historical context. Whereas the earliest prohibitions addressed the open sale of human beings on a visible market, the new slavery takes place in a different domain.
Today, almost all elements of our statutory definition of slavery—the “recruitment,” the “harboring,” the “force, fraud, or coercion”—are inextricably entwined with modern technology. In place of open sales in public squares, traffickers employ social networks to locate and market women and girls, use difficult-to-trace no-contract cell phones for themselves and their victims, and frequent illicit websites such as Backpage.com to carry out many trafficking business exchanges.
According to Ronald Hosko, assistant director of the FBI’s criminal investigative division, social media platforms were one resource the investigators utilized to uncover victims and exploiters in its most recent raid. Social media stands as the lone “virtual” space among the other locations—motels, casinos, streets—where the FBI investigated to track down this group of victims and exploiters.
As online sites, cell phones, and other evolving technologies become the go-to resources for exploiting trafficking victims, anti-trafficking advocates are beginning to see the necessity to harness the power of technology for their own purposes. In order to satisfy the mandates of both international and U.S. law, anti-trafficking advocates are learning to utilize the internet, cell phones, data processing services, and more, to turn technology against the traffickers who have learned to use it as a tool for exploitation.
Whitney Denning is a 3L and a staff editor for the Denver Journal of International Law & Policy.
