Two Fronts Converge in the War Against Online Sex Trafficking
David Dix*
Two fronts in the fight against online sex trafficking will soon come to a head. Carl Ferrer, the CEO of Backpage.com, was recently arrested and charged with felony pimping. Christopher Mele, C.E.O. of Backpage.com, Known for Escort Ads, Is Charged with Pimping a Minor, N.Y. Times (Oct. 6, 2016), http://www.nytimes.com/2016/10/07/us/carl-ferrer-backpage-ceo-is-arrested.html. Backpage describes itself as the second-largest online classified advertisement service, and according to California prosecutors, ninety-nine percent of its income is “directly attributed” to its adult advertising. Id. At the time of the arrest, Ferrer was already embroiled in a standoff with the Senate Subcommittee on Investigations for failing to show up to a subpoena in 2015. Senate Permanent Subcomm. v. Ferrer, No. 16-mc-621 (RMC), 2016 WL 4179289 (D.D.C. Aug. 5 2016).
These criminal charges, and the ongoing Senate investigation, are the newest avenue in the fight against online sex trafficking. Indeed, opponents of sex trafficking have already tried numerous methods to combat Backpage. See Eric Zorn, Backpage.com Evens the Score in Lawsuit Against Dart, Chi. Tribune (Nov. 20, 2015, 5:17 PM), http://www.chicagotribune.com/news/opinion/zorn/ct-backpage-dart-claypool-zorn-perspec-1122-20151120-column.html. Critics warn that fighting Backpage and other interactive computer service providers can chill free speech. Sophia Cope, Court Ruling Against Backpage.com Is a Setback for Online Speech in Washington State, Elec. Frontier Found. (Sept. 8, 2015), https://www.eff.org/deeplinks/2015/09/court-ruling-against-backpagecom-setback-online-speech-washington-state. Courts have indeed taken note of the competing public policies that collide here—the suppression of child sex trafficking and the promotion of a free and open internet. Doe ex rel. Roe v. Backpage.com, L.L.C., 104 F. Supp. 149, 151 (D. Mass. 2015). For now, Backpage is insulated from civil liability, but that might soon change.
Vicarious Liability for Online Prostitution Advertisements
Backpage is not liable for the consequences of its adult classifieds under the safe harbor provision of the Communications Decency Act. Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 20–21 (1st Cir. 2016). The safe harbor provision reads: “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.” 47 U.S.C. § 230(c)(1) (2012).
For instance, in Doe v. Backpage, L.L.C., child victims of sex trafficking sued Backpage under the theory that Backpage’s actions violated the Trafficking Victims Protection Reauthorization Act of 2008 and the Massachusetts Anti-Human Trafficking and Victim Protection Act, as well as unfair and deceptive business practices. 104 F. Supp. 149, 151 (D. Mass. 2015). Plaintiffs alleged that Backpage intentionally employed inadequate protection measures to hide behind the safe harbor provision with a “Potemkin-like ‘façade of concern.’” Id. The court sided with Backpage, noting that “the existence of an escorts section in a classified ad service . . . is not illegal.” Doe, 104 F. Supp. at 157. On appeal, plaintiffs characterized Backpage’s actions as “an affirmative course of conduct” distinct from “traditional publishing or editorial functions,” such that Backpage could be held liable notwithstanding the good harbor provision of the CDA. Jane Doe No. 1, 817 F.3d at 20. The court disagreed, noting that Backpage engaged in many editorial choices and that “applying section 230(c)(1) to shield Backpage from liability here is congruent with the case law elsewhere.” Id. at 21.
Courts have indeed read broad protections into the safe harbor provision of the CDA. Individual states have tried passing legislation intended to impose felony liability on those interactive computer service providers such as Backpage, but have been unsuccessful on First Amendment grounds. Washington State Drops Defense of Unconstitutional Sex Trafficking Law, Elec. Frontier Found. (Dec. 6, 2012), https://www.eff.org/press/releases/washington-state-drops-defense-unconstitutional-sex-trafficking-law. Recently, Congress has taken note of the problem and has been investigating to perhaps provide a legislative solution to the issue. Senate Permanent Subcomm. v. Ferrer, No. 16-mc-621 (RMC), 2016 WL 4179289, at *9 (D.D.C. Aug. 5, 2016).
Senate Permanent Subcommittee on Investigations Subpoena
The Subcommittee began investigating internet sex trafficking in April 2015. Id. at *1. In the summer of 2015, the Senate interviewed Backpage’s general counsel and subsequently subpoenaed Backpage for documents concerning its moderation procedures, interaction with law enforcement, terms of use, data retention policies, and basic corporate structure. Id. at *2.
The Senate denied that it was specifically targeting Backpage, but Backpage nonetheless objected to the whole subpoena on First Amendment grounds. Subsequently, the Subcommittee subpoenaed Ferrer personally, who did not show up to the hearing. Id. at *3. On August 5, a district court upheld the subpoena. Id. at *15. Finally, the district court was affirmed by the Supreme Court on September 13. Ferrer v. Senate Permanent Subcomm. on Investigations, 137 S. Ct. 28 (2016). Thus, this issue is settled for now, and without a doubt the Senate will soon get its hands on Ferrer.
Criminal Charges
Meanwhile, Ferrer is facing multiple counts of pimping in California. Kevin M. Ryan, A Website Caught Pimping Kids, Huffington Post (Oct. 7, 2016, 2:52 PM), http://www.huffingtonpost.com/kevin-m-ryan/a-website-caught-pimping_b_12391524.html. Arrest warrants have also been issued for two founders of the website. Id. If convicted, Ferrer could face up to twenty-two years in prison. Id. According to the California attorney general, “Backpage and its executives purposely and unlawfully designed Backpage to be the world’s top online brothel.” Id. In response, Backpage has characterized the arrest as “an election year stunt,” and cited Backpage’s compliance with law enforcement efforts. Matt Hamilton, Backpage Says Criminal Charges by Kamala Harris Are ‘Election Year Stunt,’ L.A. Times (Oct. 7, 2016, 4:55 PM), http://www.latimes.com/local/lanow/la-me-ln-backpage-ceo-arrested-charged-20161006-snap-story.html.
Conclusion
The issue of internet sex trafficking is now squarely before the legislature. Whenever Congress gets ahold of Ferrer, it will perhaps consider altering the Safe Harbor provision of the Communications Decency Act, which could allow interactive computer service providers to be held liable for underage sex trafficking that takes place on its platforms. On the other hand, interactive computer service providers have been immune from civil liability since 1996, so a broad fix to this problem could jeopardize “one of the most valuable tools for protecting freedom of expression and innovation on the Internet.” 47 U.S.C. § 230, a Provision of the Communication Decency Act, Elec. Frontier Found, https://www.eff.org/issues/cda230 (last visited Dec. 22, 2016). If Congress allows third-party liability for interactive computer service providers, expect to see civil remedies (perhaps broader in scope than just underage sex trafficking) aggressively pursued in courts around the country, alongside more aggressive screening processes from service providers.
Ferrer’s criminal charges are also pending, which also may be an avenue for a win. Although a conviction for pimping might deter others from following in Backpage’s footsteps, this would be a narrow victory that provides no compensation for victims of underage sex trafficking.
*David Dix is a second-year law student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review. In the summer of 2016, he interned with the Honorable Jeannie J. Hong in the Circuit Court for Baltimore City.
University of Baltimore Law Review 