Child-sex lawsuit collides with Internet economy

Online ads have frustrated agencies fighting child sex trafficking for years

By Brandon Gee
The Daily Record Newswire

BOSTON, MA — The fastest-growing type of organized crime, human trafficking, often is facilitated by an increasingly indispensable tool of daily life: the Internet.

In a Massachusetts lawsuit, a federal judge must determine whether plaintiffs’ efforts to combat the former constitute an impermissible attack on the latter. The stakes — whether measured in lives or dollars — are huge.

“This case is going to go to the 1st Circuit, and very likely the Supreme Court, no matter how it’s decided,” predicts Boston business litigator Lee T. Gesmer.

In Doe, et al. v. Backpage.com, et al., the Boston law firm Ropes & Gray is representing, pro bono, three women who claim they were trafficked for sex in Massachusetts and Rhode Island when they were minors. Alleging that their pimps advertised them on Backpage.com, the plaintiffs’ U.S. District Court lawsuit accuses the classified advertising website not only of hosting the ads, but also of intentionally structuring its business to attract and shield child sex traffickers while reaping millions of dollars a year in ad revenue.
The accusations, which Backpage.com denies, are familiar. For years, online ads have frustrated law enforcement agencies and advocacy
organizations fighting child sex trafficking. Under pressure from such groups, Craigslist eliminated its “adult services” section in 2010. Backpage.com became the dominant player and has had a target on its back ever since.

But the company successfully has deflected attempts to hold it liable for the actions of its users, primarily by relying on Section 230 of the
Communications Decency Act, which states, “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.”
Courts largely have interpreted the immunity broadly and even held that it preempts state criminal law.

Supporters hope the outcome of the Massachusetts lawsuit will be different, in part because it focuses on the actions of Backpage.com itself,
rather than the traffickers who use its services to illegally sell sex with children. The Attorney General’s Office in Massachusetts, as well as the cities of Atlanta, San Francisco, Denver, Houston, Philadelphia and Portland, Oregon, filed amicus briefs in support of the plaintiffs.

“Websites that actively facilitate human trafficking should be held liable for this serious and widespread problem in the Commonwealth,” AG
Maura T. Healey said in a statement. “Backpage is known for advertising commercial sex, and its recent growth and dominant position in the market call into question its supposed efforts to curb prostitution and child exploitation.”

Opponents, however, warn that a victory by the plaintiffs would curtail freedom of speech online and cripple the Internet economy. The
Electronic Frontier Foundation, the Center for Democracy & Technology and Santa Clara University School of Law’s Eric Goldman, a leading authority on “Internet intermediary liability,” filed an amicus brief in support of Backpage.com.
Judge Richard G. Stearns has Backpage.com’s motion to dismiss under advisement.

‘Artful pleading’?
At recent oral arguments on the motion to dismiss, Backpage.com lawyer James C. Grant of Seattle argued that Section 230 “is actually broader” than the First Amendment.

“I think it’s fair to say that the Communications Decency Act is the most important law fostering growth and development of the Internet,” Grant said. “Congress recognized that people could misuse the Internet and harm could flow … but they made a rule and found … the messenger cannot be held liable for that misuse.”

At the heart of the test, Grant said, is who created the content. Since third-party users would have created the ads advertising the plaintiffs, Section 230 provides not only defense from liability, but immunity from suit altogether, he argued.

“That should be the end of the inquiry, but the crux of this case is plaintiffs’ efforts to try to avoid Section 230,” he said.

From intellectual property claims to violations of Massachusetts’ consumer protection statute, the plaintiffs make several allegations in their attempt to avoid Section 230.

Most interestingly, though, they allege that Backpage.com has violated a federal criminal law, the Trafficking Victims Protection and Reauthorization Act, which makes it a crime to knowingly benefit “financially, or by receiving anything of value, from participation in a [child-sex trafficking] venture.” While criminal, the statute includes a private right of action.

“Plaintiffs have stated actionable violations of federal and state law, and section 230 of the CDA does not afford Defendants immunity because … Plaintiffs’ claims neither impute to Defendants’ website content fully created by another nor seek to hold Defendants liable for exercising traditional publisher functions,” a recent filing in the case states.

In its defense, Backpage.com relies heavily on the 1st U.S. Circuit Court of Appeals’ 2007 ruling in Universal Communications Services Inc. v. Lycos, in which it upheld the dismissal of claims against a defendant for third-party postings on an online investment message board. The court found such claims would have an “obvious chilling effect” on speech.

“Congress intended that, within broad limits, message board operators would not be held responsible for the postings made by others on that board,” the decision states. “No amount of artful pleading can avoid that result.”

But while Grant argued the pending Massachusetts suit is simply an example of such “artful pleading,” John T. Montgomery of Ropes & Gray contended that Backpage.com is hardly the type of “passive” message board that was at issue in Lycos.

Montgomery provided the following examples of Backpage.com’s alleged affirmative acts: accepting and encouraging untraceable payment methods to protect the anonymity of traffickers; stripping metadata, including geolocation information, from photographs uploaded to the site; facilitating private communications between traffickers and customers; allowing phone numbers in obscured forms but, in response to law enforcement requests, only searching phone numbers in numeric formats; and failing to remove or report advertisements for the same child, including for identical advertisements posting in other geographic regions.

“It’s critical that you look at the source of the duty and whether it focuses on the publisher function,” Montgomery told Stearns at oral arguments, noting that his clients have made a claim under the private right of action provision of a criminal statute.

“If you look at the complaint, we have a whole raft of conduct that violates that criminal statute. We have made, we think plainly, a plausible claim they are participants in the venture of trafficking these kids. … They are not allegations that treat the defendant as a publisher. So we think 230 is gone. That’s our reading of 230.”

Montgomery declined to be interviewed by Lawyers Weekly. The general counsel for Backpage.com did not respond to an email message.
Uphill battle

Stearns entered the hearing clearly skeptical of the plaintiffs’ claims.

“The 230 argument appears to have succeeded with just about every court that has considered it,” the judge told Montgomery. “It’s hard to find a court, of many who have heard these cases, that agrees with [your] interpretation.”

Gesmer agreed that “there has been a massive failure rate in trying to plead around” Section 230 nationwide, but he said the Massachusetts plaintiffs’ claims are “novel” and will force Stearns to decide, “first and foremost,” whether a private right of action under a criminal statute falls outside of Section 230 of the CDA.

“We think it’s clear … that the law does provide remedies,” Montgomery argued before Stearns. “The courts certainly heard Congress loud and clear that Congress wanted to protect this nascent technology and make sure it was able to develop without undue burden of plaintiffs’ claims. At the same time, there is a growing trend among the courts to view 230 as perhaps having been too broadly applied in the early days of the statute when, to be sure, the Internet was in its infancy.”

Grant urged Stearns not to accept that argument. He said many of the actions the plaintiffs paint as nefarious — such as stripping metadata from uploaded photographs and accepting alternate forms of payment — are standard website business practices.

“The complaint is overwhelmingly made up of conclusory aspersions,” Grant said. “The notion that you can simply allege the entire purpose of a website is unlawful doesn’t provide refuge from 230.”

While he described the plaintiffs’ claims as “very reasonable,” Gesmer told Lawyers Weekly he does have some concerns about the potential consequences of letting them proceed.

Along with the Digital Millennium Copyright Act, Gesmer said, Section 230 of the Communications Decency Act has “allowed the Internet to become the success it has become.” Gesmer cited in particular a potential consequence warned of in the amicus brief supporting Backpage.com.

“That Plaintiffs’ expansive reading of the federal criminal law exception would enable the exception to swallow the rule is further evident when considered in light of state unfair competition laws such as California’s Business & Professions Code § 17200, which authorizes civil actions for violations of other laws, including federal criminal laws,” the brief states. “A private party could ‘borrow’ a federal criminal law as the underlying substantive violation for a § 17200 claim even when that federal criminal law does not itself authorize civil actions. According to Plaintiffs’ theory of liability, Internet intermediaries defending against civil unfair competition claims predicated on federal criminal laws (and based on third-party content) would not be able to invoke Section 230 immunity.”

Gesmer said it could be disastrous if the Massachusetts suit “opened the door to that. If that’s true … it would be very hurtful to the Internet, because then all of a sudden everyone would have to look over their shoulder.”

If the claims are allowed to proceed, Gesmer said, the trick will be to carefully define the boundaries of Section 230 immunity.

Stearns, meanwhile, noted he would have to “puzzle through” what “participation in a venture” means in the Trafficking Victims Protection and Reauthorization Act.

Carmen L. Durso, a Boston lawyer who represents victims of child sexual assault, said Backpage.com’s conduct should qualify and that he believes it is appropriate to hold liable those “who make it easier for the people who do bad stuff.”

“It comes down to something that’s always been argued about: whether or not there is shared responsibility between the people who do the heinous act and those whose negligence in one way or another makes it possible,” Durso said. “Like when a landlord has someone get raped because they have lousy locks. The only difference here is you have First Amendment arguments that are involved.”