In January, Senator Rob Portman (R-OH) argued that Congress needed to act on his Stop Enabling Sex Traffickers Act to address websites like Backpage.com, which his subcommittee had documented had been promoting sex trafficking with minors.
Courts across the country have consistently ruled that a federal law—and this is why Congress has such a key role to play here—a federal law called the Communications Decency Act actually protects Backpage and others for their liability they should have in sex trafficking.
Santa Clara University School of Law Professor Eric Goldman, a strong proponent of the immunity provided by Section 230 of the Communications Decency Act (CDA230) and one of the leading critics of SESTA, argued that this was a false claim. Goldman testified before the Senate Commerce Committee that while
Backpage has had significant success in court, recently a California state court ruled that Backpage executives must defend charges of violating state money laundering laws. Also, in the past couple of years, the U.S. Department of Justice successfully prosecuted and shut down two sites publishing online prostitution ads (Rentboy and MyRedbook). The DOJ should be able to deploy similar legal theories against Backpage.
In fact, an Arizona grand jury was investigating Backpage (which is based in Arizona) while SESTA was being considered.
Last month, the Senate passed SESTA’s House counterpart, the “Allow States and Victims to Fight Online Sex Trafficking Act” or FOSTA, by a 97-2 vote. The vote came only a few days after a White House roundtable on online sex trafficking with SESTA/FOSTA sponsors and Ivanka Trump. The bill was presented to President Trump for signature on April 3rd, but has not yet been signed into law.
On March 29th, a Federal court in Massachusetts refused to dismiss a civil complaint against Backpage based on the limitation of CDA230 that prevents immunity where the website participated in creating the illegal content.
The allegation in the complaint that “Backpage . . . redrafted the advertisement [of Jane Doe No. 3] to suggest she was an adult” suffices to allow the complaint by Jane Doe No. 3 to proceed in the face of the CDA’s statutory immunity, which does not protect service providers when they create content, FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009). The further discovery, while not clarifying greatly the matter, provides, drawing all reasonable inferences in Plaintiff’s favor, a modicum of support for the notion that Backpage has substantively changed an ad, which then supports the information and belief allegation in the complaint. Thus, the CDA poses no bar to Jane Doe No. 3’s claim at this stage of the proceedings.
Doe v. Backpage.com, LLC, No. No. 17-11069-LTS (D. Mass. Mar. 29, 2018).
On Friday, the FBI seized the Backpage site and raided the home of its co-founder Michael Lacey, with reports indicating that the action is part of an unsealed indictment filed in Arizona federal court containing 93 criminal counts including money laundering and running a website to facilitate prostitution. The indictment names 17 victims, both adults and children, who were allegedly trafficked by Backpage. The Justice Department indicates that Backpage has earned $500 million in revenue from prostitution since it was created.
This action proves that SESTA/FOSTA is not needed. SESTA sponsors, like Senator Portman, certainly can take credit for the work his Subcommittee did in exposing Backpage’s role in child sex trafficking, but they should now ask that President Trump veto the legislation to enable Congress to reconsider the wisdom of creating an exception to CDA230.
Given, however, that SESTA was embraced by Ivanka Trump, it is extremely unlikely that an administration eager to claim legislative victories would pass on the opportunity to sign an “anti-sex trafficking bill” in an election year no matter how unwise it might be.
Feds Seize Backpage.com, Site Linked to Sex Trafficking, Wired; Backpage founder charged by feds after human-trafficking investigation, AZ Central; President Donald J. Trump is Working to End Human Trafficking, White House.