WOODHULL FREEDOM FOUNDATION et al v. UNITED STATES OF AMERICA et al

Filing 5

MOTION for Preliminary Injunction by HUMAN RIGHTS WATCH, ERIC KOSZYK, JESSE MALEY, THE INTERNET ARCHIVE, WOODHULL FREEDOM FOUNDATION (Attachments: #1 Declaration of K. D'Adamo, #2 Declaration of R. Levy, #3 Declaration of D. Pokempner, #4 Declaration of E. Koszyk, #5 Declaration of J. Maley, #6 Declaration of B. Kahle, #7 Declaration of A. Lutnick, #8 Declaration of A. Levy, #9 Declaration of K. Mehlman-Orozco, #10 Text of Proposed Order)(Corn-Revere, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WOODHULL FREEDOM FOUNDATION,
HUMAN RIGHTS WATCH, ERIC KOSZYK
JESSE MALEY, a/k/a ALEX ANDREWS, and
THE INTERNET ARCHIVE,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA
and JEFFERSON B. SESSIONS, in his
official capacity as ATTORNEY GENERAL
OF THE UNITED STATES,
Defendants.

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Case No. _______________

DECLARATION OF DR. KIMBERLY MEHLMAN-OROZCO
I, KIMBERLY MEHLMAN-OROZCO, do hereby state and declare:
1.

The facts contained in the following affidavit are known to me of my own

personal knowledge and if called upon to testify, I could and would completely do so.
2.

I serve as a human trafficking expert witness in criminal and civil cases across the

United States:
•

United States v. Cornelius Galloway, United States District of New Mexico

•

United States of America v. Miguel Scott Arnold, Terrence Hawkins, Tevin Bynoe,
Emonie Murphy, and Joshua Guity-Nunez, United States District Court for the
Middle District of Pennsylvania

•

M.B. v Roosevelt Inn, LLC, et al., Civil Litigation, State of Maryland

•

Doe v. Subh Properties, et al., Civil Litigation, State of Maryland

•

United States of America vs. Savanah April Via, U.S. District Court for the
District of Arizona

•

Commonwealth of Virginia v. Corey Cardoza, Henrico County

•

People v. Kareem Abdur-Razzaaq, Ind. No. 3154/2013, and People v. Lemuel
Skipper, Ind. No. 2409/2015, Bronx County

•

People of the State of California Plaintiff v. Tracy Sims, Superior Court of
California, County of Los Angeles

•

Keo Ratha; Sem Kosal; Sophea Bun; Yem Ban; Nakry Phan; and Sok Sang v.
Phatthana Seafood Co., Ltd; S.S. Frozen Food Co., Ltd.; Doe Corporations 1-5;
Rubicon Resources, LLC; and Wales & Co. Universe, Ltd., United States District
Court for the Central District of California

•

J.S., S.L., and L.C. v. Village Voice Media Holdings LLC, Supreme Court of the
State of Washington

•

People of the State of California Plaintiff v. Young Kyung Cho, Superior Court of
California, County of Los Angeles

•

People of the State of California v. Mixon-Givens, Santa Clara County Court

•

People of the State of California v. Joseph, et. al., Contra Costa County Court

3.

I have trained law enforcement on how to identify human trafficking, including:
•

Royal Canadian Mounted Police in Nova Scotia, Canada

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Homeland Security Investigations in Buffalo, New York

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Homeland Security Investigations in Raleigh, North Carolina

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North Carolina State Bureau of Investigations in Raleigh, North Carolina

•

Montebello Police Department in Montebello, California

4.

I have taught human trafficking to my students at George Mason University and

previously at University of Maryland, College Park.
5.

I have trained service providers and the public on human trafficking, including:
•

Soroptimist International of the Americas, Inc.

•

Prevent Abuse and Neglect through Dental Awareness (P.A.N.D.A)

•

Kappa Delta Phi International Sorority

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Bernadette’s House

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•

Westminster at Lake Ridge

•

Trinity Episcopal Church

•

Stern Symposium - Hidden in Plain Sight: Emerging Labor Policy Issues

•

Women in Homeland Security Human Trafficking Symposium

•

Human Trafficking Symposium Panelist at Liberty University School of Law

6.

I have been interviewed by the media on human trafficking, including:
•

BuzzFeed

•

The News Journal

•

Gray TV

•

The Ringer

•

Miami Herald

•

The Washington Post

•

The Crime Report

•

Governing

•

Kansas City Star

•

Homeland Security Today

•

International Business Times

•

Majority Report

•

WNPR

•

I24 News

•

Al Jazeera

•

Fox News

•

USA Today

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7.

I have authored research on human trafficking published in peer-reviewed

journals, including:
•

•

Syme, Sheryl, Camardese, Susan, and Mehlman-Orozco, Kimberly B. (2017).
“Identifying Victims of Human Trafficking.” Dimensions of Dental Hygiene.

•

Syme, Sheryl, Camardese, Susan, and Kimberly Mehlman-Orozco. (2017).
“Human Trafficking: Red Flags for Dental Professionals.” Decisions in Dentistry.

•

8.

Mehlman-Orozco, Kimberly B. (2017). “Projected Heroes and Self-Perceived
Manipulators: Understanding the Duplicitous Identities of Human Traffickers.”
Trends in Organized Crime.

Mehlman-Orozco, Kimberly B. (2015). “Safe Harbor Legislation for Juvenile
Victims of Sex Trafficking: A Myopic View of Improvements in Practice. Social
Inclusion.
I have authored a book on human trafficking, Hidden in Plain Sight: America’s

Slaves of the New Millennium, which received overwhelming praise from anti-trafficking
experts and is used to train law enforcement.
9.

I have served as a peer-reviewer for human trafficking journal articles published

in Justice Quarterly, Journal of Human Trafficking, and American Journal of Evaluation.
10.

I received my B.S. cum laude in administration of justice from George Mason

University in 2005, my M.A. in justice, law, and crime policy in 2010, and my Ph.D. in
criminology, law and society in 2012.
11.

I previously served as an adjunct human trafficking subject matter expert for

RAND Corporation, a nonprofit institution that helps improve policy and decision-making
through research and analysis. In that capacity, I worked on three study proposals:
(i) Research design to evaluate the National Human Trafficking Hotline;
(ii) Development of an evidence based human trafficking risk assessment tool for
organizations working with minors; and
(iii) Evaluating the outcomes of housing services for adult and juvenile human
trafficking survivors.
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12.

I currently serve as the Executive Director of an anti-trafficking non-profit

organization—Freedom Light.
13.

In Fall 2017, I founded a human trafficking survivor scholarship, administered by

Soroptimist International of Woodbridge.
14.

Since 2014, I have volunteered with Manassas City Police department’s TEAM

Quest on a yearly basis to speak to and mentor at-risk youth.
15.

FOSTA makes it illegal to knowingly assist, facilitate, or support sex trafficking.

In this context, it is demonstrably unclear what is meant by “knowingly” and it is demonstrably
unclear what rises to the level of “facilitation.” Following the passage of FOSTA, businesses that
unknowingly encountered human trafficking, and took no action to make human trafficking easy
or easier, have experienced increased scrutiny and liability.
16.

Human trafficking is a clandestine crime that is difficult to identify.

17.

Police officers frequently misidentify victims of human trafficking, resulting in

erroneous criminalization, denied services, and missed opportunities for interventions.
18.

Most third parties who encounter human trafficking, do so without any awareness

or consciousness of the force, fraud, coercion, deception, or threat used to exploit the victim.
19.

The Internet as a whole has facilitated information exchange, including for

commercial sex exchanges. Prior to the advent of the Internet, commercial sex and sex
trafficking were advertised through peer-to-peer referral, on the street, in classified
advertisements, by fliers or business cards, and through independent publications, such as Blue
Books. Following the advent of the Internet, commercial sex and sex trafficking continues to be
diversely advertised.

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20.

At present, there is no evidence to suggest that one website or virtual platform

makes sex trafficking easier than any other website or virtual platform.
21.

There is absolutely no rigorous quantitative data to suggest that FOSTA has

had or will have any significant impact in reducing the prevalence of sex trafficking. Extant
“statistics” that are cited in support of the legislation are interpreted through ecological fallacies
and do not actually support the proposed efficacy of the legislation. For example, the National
Center for Missing and Exploited Children claimed that 73 percent of the 10,000 childtrafficking reports it receives annually involve Backpage.com. This “statistic” is erroneously
interpreted to suggest that Backpage.com was “facilitating” the practice, but in actuality these
data reflect the reality that the website was used more often by law enforcement and victim
service providers as an information source and catalyst for victim rescues. Following the passage
of FOSTA, NCMEC has updated this statistic to read 75% of their referrals involve a child
trafficked on the Internet.
22.

FOSTA is prone to inequitable enforcement. Some businesses, such as

Backpage.com and Craigslist.org, have been vilified as “facilitating” sex trafficking, despite the
fact that the websites administrators had been completely cooperative with law enforcement
investigations. Other websites, such as Facebook, have similarly been used by sex traffickers
to recruit and sell victims, but have not experienced comparable condemnation.
23.

There is absolutely no criminological theory to support the hypothesis that

FOSTA will have any significant impact in reducing the prevalence of sex trafficking.
Criminological theory does support the null hypothesis that FOSTA will have no impact on the
prevalence of sex trafficking. For example, Routine Activities Theory suggests that crime occurs
when three things converge in time and space: (1) a motivated offender, (2) a suitable target, and

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(3) lack of a capable guardian. FOSTA does not address any of those three elements and in fact,
threatens the capability of law enforcement (guardianship) by displacing and dispersing the
advertisements.
24.

Prior to the passage FOSTA, law enforcement used open-access, United States

based websites that hosted commercial sex advertisements, such as Backpage.com and Craigslist,
as tools to catalyze arrests and rescues.
25.

According to law enforcement and prosecutors, websites such as Backpage.com

and Craigslist, were of great utility in their anti-trafficking operations and the website
administrators were consistently responsive to requests for information and subpoenas.
26.

Anti-trafficking organizations would use websites like Backpage.com to train law

enforcement officers on how to conduct anti-trafficking sting operations.
27.

FOSTA supporters erroneously claimed that Craigslist “facilitated” sex

trafficking. When Craigslist shuttered the adult section of its website, those who sought to
change the law erroneously claimed that Backpage.com “facilitated” sex trafficking. When
Backage.com was seized by federal law enforcement, and FOSTA was passed, the commercial
sex advertisements were again displaced across the Internet, including to social media, dating
platforms, and websites based overseas.
28.

Following the passage of FOSTA, commercial sex advertisements have been

dispersed, from a small number of concentrated websites, to hundreds of Internet platforms.
29.

Website administrators based outside of the United States have made public

statements on their impunity and lack of cooperation with law enforcement.
30.

The “red flags” of sex trafficking have not been tested for sensitivity or

specificity. Erroneously reporting law-abiding persons can result in additional liability for

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defamation or racial profiling. For example, Airline Ambassadors International trains flight
attendants on how to spot human trafficking. According to the organization, one red flag is “if a
child is traveling with someone who does not appear to be a parent or relative.” This “red flag”
has been accused of resulting in the disproportionate questioning of parents and children of
mixed-race families.
31.

By displacing and dispersing the commercial sex advertisements, FOSTA has

made the already clandestine crime of sex trafficking even more hidden from law enforcement.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on June 28, 2018, at Montclair, Virginia.

_________________________________
KIMBERLY MEHLMAN-OROZCO

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