Sex Trafficking Case Turns on Whether Websites Can be Leld Liable for Content Created by Users
In 2010, the seedy business of online prostitution lost a major platform when Craigslist, the eponymous web bazaar for everything from jobs to apartments, bowed to criticism for facilitating sex trafficking and shuttered the adult categories on its site.
Government officials, including Kamala Harris, then the district attorney for San Francisco, had been pressuring the company to get rid of the sex trade ads for years. Shortly afterwards, Harris became California’s attorney general. She’d spend the next six years grappling with a new adversary.
The online sex trade didn’t disappear when Craigslist got out of the game; it migrated to Backpage.com, a Craigslist clone then run by a publisher of alt-weekly newspapers. Soon after Craigslist’s action, a group of state attorneys general sent letters to Backpage’s executives asking it to get rid of the site’s ads for escorts, erotic massages, and other services often used as fronts for prostitution.
They refused. In the ensuing years, the company successfully fended off multiple lawsuits and legislation trying to shut it down.
In a 2013 letter to Congress, Harris and other state AGs complained that federal law protecting websites from being held accountable for things their users posted inappropriately kept them from prosecuting Backpage for its role in the online sex trade. But their request to loosen restrictions on pursuing websites who facilitate human trafficking fell on deaf ears.
Last month, Harris, now the senator-elect for California, took action. In co-operation with the Texas attorney general, she had the chief executive officer of Backpage, Carl Ferrer, arrested in the Houston airport and charged with pimping. Officers raided Ferrer’s home and Backpage’s offices in the Dallas area. Backpage’s co-founders, Michael Lacey and James Larkin, also turned themselves in on criminal conspiracy charges. It looked like Harris’s play at a coup de grace. The arrest took place just weeks before she was elected to the Senate on Nov. 8.
The criminal complaint against Ferrer identified nine unnamed minors who were allegedly sold for sex in California through listings on the site. “Backpage and its executives purposefully and unlawfully designed Backpage to be the world’s top online brothel,” said Harris in a statement. A spokesman for her campaign directed questions to the California Department of Justice, which declined to comment.
Backpage has asked a court to dismiss the case, citing the Communications Decency Act, a 1996 law. The attorney general’s claims that the company is somehow directly involved in prostitution, rather than web publishing, rely on insinuation rather than proof, said Bob Corn-Revere, a lawyer for Backpage. When an investigator for the prosecution reported a suspicious ad, Backpage quickly removed it, according to court documents.
“The only evidence presented in the papers suggest that Backpage was doing what it was supposed to be doing,” said Corn-Revere.
The suit tests the limits of a law that is a vital part of the business model of many major internet companies. Section 230 of the Communications Decency Act says website operators can’t be held liable for content created by their users. It’s credited with allowing for the rise of Facebook, Google, and the broader world of social media and online marketplaces.
The CDA has been the subject of hundreds of lawsuits, often brought by people seeking to sue websites for defamatory content from users. Tech companies get nervous at the thought that they’d stop winning these fights. In regulatory filings, eBay has mentioned unforeseen shifts in the way the law is enforced as a risk factor investors should be aware of.
John Doherty, the Sacramento-based general counsel for trade group TechNet, laughs nervously when asked what weakened CDA protections could mean. “Asking internet service providers to monitor content could change the whole game — in a bad way,” he said. “You lose all the privacy and First Amendment rights.”
Doherty praises Harris for finding novel lines of attack on other internet-based sex crimes like revenge porn. But this latest prosecution scares him. Like many people who support the CDA, Doherty picks his words carefully when discussing Backpage, a website he clearly wishes would just go away. “I understand the intent of the prosecution,” he said. “I am concerned about the unintended consequences.”
Representatives from Facebook, Amazon, and Google declined to comment. eBay didn’t respond to an interview request.
A judge will consider Backpage’s request for dismissal at a hearing on Wednesday in Sacramento. Two other cases, in Massachusetts and in Washington State, allege that Backpage is a co-conspirator in an illegal prostitution business.