There is an unprecedented interest in the private sector’s role in anti-human trafficking efforts today. The Russian invasion of Ukraine and the COVID-19 pandemic have brought concerns about human trafficking (HT) to the forefront amid sensitivity to displaced persons and vulnerable workforces.1 These factors—combined with a growing public interest in environmental, social and governance (ESG) issues such as socially responsible investing—underscore an increased awareness in anti-human trafficking efforts.2 Investors want to know that businesses are practicing due diligence to ensure supply chains and workforces are free of HT.3 In addition, enforcement priorities and civil litigation trends in the U.S. have begun to demonstrate more focus on HT in areas affecting private companies.4
This article aims to provide fundamental insight on HT laws and policies and their overlap in the private sector while emphasizing that, today more than ever, public-private partnerships are essential to combating HT. Stopping the exploitation of people and ensuring best business practices to protect companies are goals that are beneficial to everyone and not mutually exclusive.
Defining HT and U.S. HT Laws
HT is the exploitation of people for compelled labor, services or commercial sex.5 Approximately 25 million people worldwide are victims of HT, with an estimated $150 billion in illicit profits.6
The U.S. Department of Justice’s anti-human trafficking enforcement and prosecution efforts are largely authorized by the Trafficking Victims Protection Act (TVPA), which Congress enacted in 2000.7 The TVPA criminalized offenses constituting or facilitating HT. Since 2000, the TVPA—including the Forced Labor and Sex Trafficking statutes—have been amended and expanded on multiple occasions by Trafficking Victims Protection Reauthorization Acts (TVPRAs).8
In addition to the trafficker, whoever benefits financially or by receiving anything of value from a “venture” engaged in HT or forced labor may be criminally liable if they knew of or recklessly disregarded the criminal activity.9
In 2003, Congress added a civil cause of action that allowed trafficking victims to sue their traffickers for monetary damages in federal court.10 In 2008, the TVPRA’s reauthorization expanded the scope of who could face civil liability for HT.11 Presently, to submit a federal civil claim, a plaintiff must bring a civil action against the perpetrator or knowing beneficiary, who received monetary compensation or received anything of value from participating in a nefarious venture engaged in HT.12
Civil Litigation
As of December 31, 2020, plaintiffs have filed more than 450 civil cases under the TVPRA.13 Despite a decrease in civil cases filed in 2020 from the previous year, there was a steady rise in the number of federal civil trafficking cases between 2003 and 2020. More than two-thirds of the more than 300 cases filed included at least one corporate defendant as of December 31, 2020.14 Notably, alleged trafficking victims have begun using this TVPRA provision to bring civil claims against numerous global businesses, arguing that these companies knew or should have known about individual instances of trafficking.15
The increase of civil cases in recent years demonstrates a heightened need for private attorneys to represent companies in anti-trafficking compliance and best practices. Moreover, it is prudent for private attorneys representing businesses to foster relationships with those in the public sector, including law enforcement (LE), to learn how HT affects their clients’ businesses.
HT and the Financial Industry
Human traffickers use various money laundering tactics for nefarious activities, including evading detection, hiding their proceeds and growing their criminal enterprises.16
On September 11, 2014, the Financial Crimes Enforcement Network (FinCEN) issued an advisory on HT, offering guidance for identifying “red flags” in financial transactions to help financial institutions (FIs) recognize potential HT-related transactions.17 On October 15, 2020, FinCEN issued a “Supplemental Advisory on Identifying and Reporting Human Trafficking and Related Activity,” which states: “Transactions involving proceeds generated by HT can be the basis for federal criminal charges and asset forfeiture, as HT and associated crimes constitute specified unlawful activities for the crime of money laundering.”18
Human traffickers use various money laundering tactics for nefarious activities, including evading detection, hiding their proceeds and growing their criminal enterprises
Moreover, “a financial institution is required to file a SAR (suspicious activity report) if it knows, suspects, or has reason to suspect a transaction conducted or attempted by, at, or through the financial institution involves funds derived from illegal activity.”19 A SAR must also be filed if the FI knows, suspects or has reason to suspect a transaction that “attempts to disguise funds derived from illegal activity; is designed to evade regulations promulgated under the BSA (Bank Secrecy Act); lacks a business or apparent lawful purpose; or involves the use of the financial institution to facilitate criminal activity.”20
The broader scope of criminal and civil liability for HT premised on benefiting financially or facilitating the crime means that, aside from more SAR reporting, financial records may be highly scrutinized by LE, the government, litigants and courts. Hence, more coordination and communication among FIs, private attorneys and LE help all parties abide by legal requirements. This communication also allows private counsel to provide sound legal advice to companies and FIs regarding compliance in response to subpoenas. Of course, LE benefits from more efficiently obtaining the financial records to which they are entitled.
How to Create More Collaboration
Formal meetings and training events are great forums for learning about HT and networking. Serving on multidisciplinary training panels provides great insight and potentially long-lasting relationships. Establishing working groups tailored to particular industries is another effective way to collaborate, for example, participating in a working group about HT and massage parlors. Regulators, inspectors, LE, business owners, private labor attorneys and others involved should meet to discuss related issues. Working groups can be helpful to everyone, including those law-abiding business owners interested in learning best practices and how to report HT.
Formal meetings and training events are great forums for learning about HT and networking
Informally, private attorneys, LE, regulators and others should also cultivate good relationships. Although private work is distinct, most businesses want to do the right thing and anti-human trafficking is a common goal. Their list of contacts should always include individuals from both private and public practice.
Finally, do not wait for opportunities to collaborate. Be proactive! Volunteer to train others, host a multidisciplinary training session, establish a working group of interest and call contacts in other practice areas regularly. Working in silos will never end HT, nor will it protect businesses.
Barbara Martinez, partner, Holland & Knight LLP, barbara.martinez@hklaw.com
Lindsay Enriquez, associate, Holland & Knight LLP, lindsay.enriquez@hklaw.com
Lawrence J.H. Liu, associate, Holland & Knight LLP, lawrence.liu@hklaw.com
- “Targeted by Traffickers–Ukrainian Refugees at High Risk of Exploitation,” United Nations Office on Drugs and Crime, March 24, 2022, https://www.unodc.org/unodc/press/releases/2022/March/targeted-by-traffickers---ukrainian-refugees-at-high-risk-of-exploitation.html; “Addressing the risk of modern slavery during the pandemic,” Society of Corporate Compliance and Ethics, JDSupra, May 28, 2020, https://www.jdsupra.com/legalnews/addressing-the-risk-of-modern-slavery-10359/?origin=CEG&utm_source=CEG&utm_medium=email&utm_campaign=CustomEmailDigest&
utm_term=jds-article&utm_content=article-link; “COVID-19 an Accelerator of Human Trafficking–UN,” Global Initiative, December 9, 2021, https://globalinitiative.net/analysis/covid-19-human-trafficking-un/ - “ESG risks in banks: Effective strategies to use opportunities and mitigate risks,” KMPG International, May 2021, https://assets.kpmg/content/dam/kpmg/xx/pdf/2021/05/esg-risks-in-banks.pdf
- Ibid.
- “Attorney General Merrick B. Garland Announces Justice Department Strategy to Combat Human Trafficking,” U.S. Department of Justice, January 31, 2022, https://www.justice.gov/opa/pr/attorney-general-merrick-b-garland-announces-justice-department-strategy-combat-human; see also “The National Action Plan to Combat Human Trafficking,” The White House, December 2021, p. 8; Rebekah R. Carey, “Federal Human Trafficking Civil Litigation: 2020 Data Update,” The Human Trafficking Legal Center, July 2021, https://www.htlegalcenter.org/wp-content/uploads/Federal-Human-Trafficking-Civil-Litigation-Data-Update-2020_FINAL.pdf
- “The National Action Plan to Combat Human Trafficking,” The White House, December 2021, p. 8, https://www.whitehouse.gov/wp-content/uploads/2021/12/National-Action-Plan-to-Combat-Human-Trafficking.pdf
- “Fact Sheet: The National Action Plan to Combat Human Trafficking (NAP),” The White House, December 3, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/03/fact-sheet-the-national-action-plan-to-combat-human-trafficking-nap/
- “H.R.3244—Victims of Trafficking and Violence Protection Act of 2000,” Congress.gov, November 8, 1999, https://www.congress.gov/bill/106th-congress/house-bill/3244; “Public Law No. 106-386—Victims of Trafficking and Violence Protection Act of 2000 § 102(a),” GovInfo, October 28, 2000, https://www.govinfo.gov/app/details/PLAW-106publ386; “114 Stat. 1464—Aimee’s Law,” GovInfo, October 28, 2000, https://www.govinfo.gov/app/details/STATUTE-114/STATUTE-114-Pg1464/summary
- For a list of all reauthorizations and amendments to the TVPA, see n. 1, p. 62
- See (b) at “18 U.S.C. § 1589—Forced labor,” GovInfo, January 3, 2012; see (a)(2) at, “18 U.S.C. § 1591—Sex trafficking of children or by force, fraud, or coercion,” GovInfo, 2011, https://www.govinfo.gov/app/details/USCODE-2011-title18/USCODE-2011-title18-partI-chap77-sec1591
- “18 U.S.C. § 1595—Civil remedy,” GovInfo, 2016, https://www.govinfo.gov/app/details/USCODE-2016-title18/USCODE-2016-title18-partI-chap77-sec1595; “H.R.2620—Trafficking Victims Protection Reauthorization Act of 2003,” Congress.gov, https://www.congress.gov/bill/108th-congress/house-bill/2620#:~:text=(Sec.,jurisdiction%20of%20the%20United%20States; see § 4(a)(4)(A) at, “Public Law No. 108-193,” Congress.gov, December 19, 2003, https://www.congress.gov/108/plaws/publ193/PLAW-108publ193.pdf; “117 Stat. 2875—Trafficking Victims Protection Reauthorization Act of 2003,” GovInfo, https://www.govinfo.gov/app/details/STATUTE-117/STATUTE-117-Pg2875; “117 Stat. 2878,” GovInfo, December 19, 2003, https://www.govinfo.gov/content/pkg/STATUTE-117/pdf/STATUTE-117-Pg2875.pdf#page=4
- “H.R.7311—William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,” Congress.gov, December 9, 2008, https://www.congress.gov/bill/110th-congress/house-bill/7311?q=%7B%22search%22%3A%5B%22William+Wilberforce+Trafficking+Victims+Protection+Reauthorization+Act+of+2008%22%5D%7D&r=1; “Public Law No. 110-457,” Congress.gov, December 23, 2008, https://www.congress.gov/110/plaws/publ457/PLAW-110publ457.pdf; see tit. II, § 221(2), “122 Stat. § 5067,” GovInfo, 2008, https://www.govinfo.gov/content/pkg/STATUTE-122/html/STATUTE-122-Pg5044.htm; “S.178—Justice for Victims of Trafficking Act of 2015,” Congress.gov, January 12, 2015, https://www.congress.gov/bill/114th-congress/senate-bill/178; see 129 Stat. 247, tit. I, § 120 at, “Public Law No. 114-22,” Congress.gov, May 29, 2015, https://www.congress.gov/114/plaws/publ22/PLAW-114publ22.pdf
- Ibid.
- Rebekah R. Carey, “Federal Human Trafficking Civil Litigation: 2020 Data Update,” The Human Trafficking Legal Center, July 2021, https://www.htlegalcenter.org/wp-content/uploads/Federal-Human-Trafficking-Civil-Litigation-Data-Update-2020_FINAL.pdf
- Rebekah R. Carey, “Federal Human Trafficking Civil Litigation: 2020 Data Update,” The Human Trafficking Legal Center, July 2021, https://www.htlegalcenter.org/wp-content/uploads/Federal-Human-Trafficking-Civil-Litigation-Data-Update-2020_FINAL.pdf
- Ibid.
- “FIN-2020-A008 Supplemental Advisory on Identifying and Reporting Human Trafficking and Related Activity,” Financial Enforcement Network, October 15, 2020, https://www.fincen.gov/sites/default/files/advisory/2020-10-15/Advisory%20Human%20Trafficking%20508%20FINAL_0.pdf
- “FIN-2014-A008 Guidance on Recognizing Activity that May be Associated with Human Smuggling and Human Trafficking—Financial Red Flags,” Financial Crimes Enforcement Network, September 11, 2014, https://www.fincen.gov/sites/default/files/advisory/FIN-2014-A008.pdf
- “FIN-2020-A008 Supplemental Advisory on Identifying and Reporting Human Trafficking and Related Activity,” Financial Crimes Enforcement Network, October 15, 2020, https://www.fincen.gov/sites/default/files/advisory/2020-10-15/Advisory%20Human%20Trafficking%20508%20FINAL_0.pdf; A list of specified unlawful activities can be found under 18 U.S.C. §§ 1956 and 1957, which includes an array of fraudulent and other criminal activities that may be directed against individuals or the government.
- See “31 CFR § 1020.320” to “31 CFR § 1030.320”
- Ibid.