Could The Dismissal Of A Federal Lawsuit And Proposed Legislation Intended to Thwart Sex Trafficking On The Internet Have The Unintended Effect Of Posing A Serious Threat To Freedom Of Access
Two women claiming to have been coerced into prostitution as teenagers who filed a lawsuit in the U.S. District Court last year alleging that the classified advertising site Backpage.com and its parent company Camarillo Holdings LLC and New Times Media LLC “created a business model to knowingly promote, support, contribute and benefit from child sex trafficking in the United States,” which acts the suit claims are in violation of federal and state anti-trafficking laws, have had their case dismissed by a federal district judge.
The federal civil lawsuit, which paints a disturbing picture of sex trafficking of teenagers across the country, claimed that the two women — referred to in the complaint as Jane Doe No. 1 and Jane Doe No. 2 — were each trafficked as part of separate “stables” of young girls who were moved repeatedly around the country by sex traffickers after they placed advertisements in each city on Backpage.com. The lawsuit alleged that Backpage.com’s owners “intentionally played up” efforts to combat the online sex trade, a move that reportedly enabled the site to “shield itself from scrutiny.”
However, a federal district judge has ruled that a “free and open internet” is more important than thwarting traffickers at all costs. In addition to advertising things like apartment rentals, Backpage.com has become a hub for both prostitution ads and government anti-trafficking efforts and faces similar lawsuits in Seattle and other parts of the country. Backpage.com services more than 600 cities, runs hundreds of thousands of ads per day, and does not pre-screen user ads. Politicians and lawmakers at the municipal, state, and federal level have argued that because some small percentage of ads may be posted by criminals, the whole site should be shut down, or, at the very least, be held criminally responsible for any illegal transactions it unwittingly facilitates. But by this logic, Facebook should be held criminally responsible whenever anyone posts a threat there and Craigslist should be liable for discrimination should a landlord advertise an apartment for “females only”.
Title V of the Telecommunications Act of 1996, also known as Section 230 of the Communications Decency Act, codified at 47 U.S.C. § 230, is a landmark piece of internet legislation in which Congress provided immunity from liability for providers and users of an “interactive computer service” who publish information provided by others. The law specifically provides that: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
In order to qualify for the immunity offered by this provision, a defendant must satisfy each part of a three prong test to gain the benefit of the immunity and must show the: 1) the defendant is a “provider or user” of an “interactive computer service.” 2) the cause of action asserted by the plaintiff must treat the defendant as the “publisher or speaker” of the harmful information at issue; and 3) the information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.
“Let me make it clear that the court is not unsympathetic to the tragic plight described by [the plaintiffs],” wrote Judge Sterns in his opinion. However, “singly or in the aggregate, the allegedly sordid practices of Backpage … amount to neither affirmative participation in an illegal venture nor active web content creation,” he continued. “Nothing in the escorts section of Backpage requires users to offer or search for commercial sex with children. The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal.”
Ultimately, the Court was compelled to find that Backpage.com was not liable for the trafficking of the plaintiffs and granted a motion to dismiss the suit based upon the immunity provisions of the Telecommunications Act. “Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned,” Judge Sterns concluded.
However, Title V and the free and open access to the internet it was intended to provide may be under threat by new proposed legislation currently making its was through Congress. Under the Justice for Victims of Trafficking Act, which has peen passed by both the House and the Senate, includes a provision – opposed by civil libertarians – which would hold website criminally responsible when trafficking victims are advertised there. The proposed law, intended to thwart sex trafficking by holding website providers like Facebook and Craigslist and other internet providers criminally responsible for postings even though they play no role in the creation of ads or the content of posts could fundamentally change freedom of access to the internet in the view of many civil libertarians.