By Darren Smith, Weekend Contributor

The Washington Supreme Court heard an appeal brought by attorneys representing the internet website backpage.com resulting from a lower court ruling allowing the trial to proceed against the site for allegations that it assisted child sex traffickers to lure children toward sexual exploitation in the state. The argument primarily rests on whether backpage.com can claim immunity under the Communications Decency Act, Title 47 USC 230. The respondents, three unnamed child victims, argued that backpage.com created an environment and construed posting rules that guided alleged sex traffickers and those offering adult services to evade law enforcement and other sanctions, thereby assuming the role of a developer of content which would exempt backpage.com from immunity under the CDA.

The case is being monitored for its potential implications on the freedom of websites to host content from subscribers without being subject to undue liability in the strict sense and the limits to which websites can be responsible. Amicus briefs were filed by interests such as the Electronic Frontier Foundation, and the National Center For Missing and Exploited Children

Backpage.com is an internet based classified advertisement company where subscribers, for a fee, may post ads for goods or services similar to what is offered in a manner used by craigslist.com. It received a significant boost to its adult orientated content when the leading online classified website craigslist.com abandoned adult services in 2010. Since then backpage.com assumed this market and according to the Child Victims adult content scores most of the profit generated. In fact, advertising services are alleged to be charged at higher rates than other advertisements.

Backpage.com’s services are not limited to the United States but it also offers services in other nations including adult services in Bangkok and others having a large prostitution market.

In Washington State, prostitution is illegal.

The original lawsuit filed in Pierce County Superior Court alleges the “Child Victims” were in grades seven and nine when they were lured by pimps in the state and placed into Backpage’s adult escort service classifieds and were subsequently trafficked to several child rapists and raped repeatedly over time. The child rapists were arrested and pleaded guilty to rape of a child. The Child Victims then filed action against Backpage alleging the website and its parent companies aided in their exploitation by hosting the ads that led to their sexual assaults.

Backpage.com motioned for dismissal of the case against it claiming, among other matters, that it was immune under the CDA from civil prosecution. The Superior Court dismissed their claim and allowed the case to proceed toward trial but did certify backpage’s appeal.

In a brief before the Court, Child Victims argued:

In their First Amended Complaint, the child victims allege the backpage defendants are liable for the abuse and exploitation they suffered because backpage is responsible, at least in part, for creating and/or developing the unlawful content of the advertisements on the backpage.com website. CP2,4-6. The child victims allege backpage did so in order to generate tens of millions in annual profit. CP2,6.

First, the child victims allege the sex traffickers who exploited them chose the backpage.com website because backpage has purposely developed a nationwide online marketplace for sex trafficking. Id Pimps and johns know that backpage.com is devoted to sex trafficking and backstage has developed and marketed its website for that purpose. CP5. Backpage has developed a widespread reputation that its website is the “go to” site where sex traffickers can advertise commercial sex online and where men can purchase sex with women and children. Id Backpage does more to promote illicit human sex trafficking than any other entity in the United States CP5.

Central to their illicit marketplace, the backpage defendants created and developed unlawful content through the creation and management of an “escort” section where sex traffickers post advertisements for sex, including advertisements for sex with children. Id. The child victims allege “escort” is a street name for prostitution within the world of human sex trafficking and that the backpage defendants deliberately used “escorts” as the title of this section to identify sex trafficking ads to their users. Id.

[…] By using the terms “escorts” instead of “prostitutes” or “sex trafficking” the backpage defendants are also able to identify women and children for sale while at the same time providing themselves and sex traffickers with some amount of plausible deniability, CP6-10.

[…]

Once the backpage defendants had created a marketplace for sex trafficking, the child victims allege backpage developed unlawful content by providing “posting rules” and “content requirements” that instruct sex traffickers not to use certain words and graphics in their sex advertisements in order to avoid growing scrutiny by the public and law enforcement, all with the goal of allowing backpage to continue profiting from its illegal marketplace. CP 8-13. Specifically, the “posting rules” and “content requirements” ostensibly instruct paid advertisers to refrain from the following content:

• Do not post naked images, e.g. uncovered genitalia, bare butts, nipple or nipple area, sex acts, etc.
• Do Not post images using transparent clothing, graphic box or pixelization to cover bare breasts or genitalia.
• Pricing for legal adult services must be for a minimum of one hour Example: 15 minute services are not allowed, no blank pricing, etc.
• Ads can be a maximum length of 500 characters.
• Do not use code words such as “greek”, gr33k, “bbbj”, “blow”, GFE., PSE, “trips to Greece”, etc.
• Do not suggest an exchange of sex acts for money.
• Do not post content which advertises an Illegal service.
• I will not post obscene or lewd and lascivious graphics or photographs which depict genitalia or actual or simulated sexual acts;
• I will not post any solicitation directly or in “coded” fashion for any illegal service exchanging sexual favors for money or other valuable consideration;
• I will not post any material on the Site that exploits minors in any way; I will not post any material on the Site that in any way constitutes or assists in human trafficking;
• I am at least 18 years of age or older and not considered to be a minor in my state or residence.”

Although backpage suggests that its posting rules and content requirements are aimed at preventing and prohibiting unlawful content (i.e., sex trafficking), the child victims contend the exact opposite is true, and that the posting rules and content requirements are a fraud and a ruse aimed at helping sex traffickers and the backpage defendants avoid law enforcement by giving the false appearance that backpage does not allow sex trafficking on its website. CP 10. Furthermore, the child victims allege that co-defendant Hopson and other pimps utilized and relied on backpage’s posting rules and content requirements to advertise them on backpage.com and sexually exploit them for profit, as backpage intended. CP 16, 18, and 20.

In support of their allegation that the “posting rules” and “content requirements” and other efforts as outlined above are actually intended to encourage and develop unlawful content, the child victims attacked to their complaint a copy of the advertisements in the “escorts” section of backpage .com as they appeared on July 27, 2012, for only the Seattle, Washington, and Tacoma, Washington areas. CP495-2774. As discussed in more detail below, the trial court agreed with the child victims’ allegation that virtually every one of these roughly 1,000 paid advertisements is obviously for sex, despite backpage’s claim that its website is not for trafficking sex. Moreover, and as the trial court also observed, the child victims allege that every single one of those advertisements for sex violate the “posting rules” and “content requirements” that backpage claims it enforces to prevent children from being trafficked on their website.

A key element in the case hinges on whether or not an internet site’s claim of immunity is the notion of development in whole or in part of illegal content posted. In the respondent’s brief:

CDA Section 230 broadly defines “Information Content Provider” as “any person or entity that is responsible, in whole OR IN PART, for the creation or development of information provided through the internet or any other interactive computer service.” 47 U.S.C. Section 230 (f)(3) (emphasis added). “This is a broad definition, covering even those who are responsible for the development of content only “in part.” F.T.C., 570 F.3d at 1197 (citation omitted). As the child victims allege here, “there may be several information content providers with respect to a single item of information, each being ‘responsible,’ at least ‘in part,’ for its ‘creation or development.” Id.

[…]

To provide even greater clarity, the Ninth Circuit has approved several definitions of the term “develop” and methods by which a provider can be a “developer,” “in whole or in part,” thus voiding the CDA immunity. For example, a website “develops” unlawful content when it makes the content more “usable and available.” Id. The Roommates Court also notes the term” web content development,” can be defined as “the process of researching, writing, gathering, organizing and editing information for publication on websites.” Id.

Much contention was fielded in oral arguments before the State Supreme Court on if backpage.com aided in part to the development of the content later alleged to have resulted in child sex trafficking by creating a forum for which sex trafficking could occur, steering or guiding subscribers into creating content which is designed to avoid law enforcement. Moreover, it was also alleged that backpage.com also encouraged its subscribers who posted in the escort sections to use pre-paid credit cards to pay for serves. These types of cards are often used in the underworld for illicit payments for illegal activities due to low traceability by law enforcement. Other content websites do not make such suggestions.

To summarize elements of the brief, Child Victims allege that backpage.com is a content provider for the purposes of the CDA because it is responsible for the creation of its content. Citing MCW, Inc v. Badbusinessbureau.com the website operated a consumer complaint forum where consumers could voice objections to the practices of businesses. The company created titles such as “scam” and “ripoff” and organized articles under these headings. The court denied defendants immunity under the CDA. According to this interpretation of the CDA, Child Victims allege backpage.com instituted a similar procedure with regard to the use of “escort” and directing website viewers to these advertisements.

Moreover, Child Victims allege backpage.com policies its content in “bad faith” and is consequently not immune under the CDA because the substantial portion of the premise for operation by backpage.com is to encourage subscribers to post prostitution related advertisements that engage under minimally veiled attempts to cloak the true goals of the advertisers and that substantial steps are not undertaken.

The Child Victims allege the CDA was enacted to protect in substantial part children from sexual exploitation and that Congress did not intend for a website to have blanket immunity based upon the inclusion of modest disclaimers.

Backpage.com argues in its brief that freedom of speech is a paramount aspect of the United States Constitution and society of the citizenry.

Congress Enacted Section 230 to Promote Free Speech and Encourage Self-Policing on the Internet.

Section 230(c)(1) unambiguously bars suits against websites and other online service providers predicated on content provided by third parties. Its key provision states: “No provider…of an interactive computer services shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. Section 230(c)(1). A website user who submits content – as millions of users do on thousands of websites every day – is an “information content providers” under the statute’s definition of a party “responsible, in whole or in part, for the creation or development of information.” Id section 230(f)(3), Thus, a website or other online provider loses Section 230 immunity only if it “create[s]” or “develop[s]” the allegedly unlawful content itself. Section 230 expressly preempts state laws that would impose liability on online providers contrary to its terms: “[N]o liability may be imposed under any State or local law that is inconsistent with this section.” Id. Section 230(e)(3).

Congress enacted Section 230 to achieve two goals. First, it “wanted to encourage the unfettered and unregulated development of free speecon in the Internet, and to promote the development of e-commerce.”

[…]

Congress also recognized that some material posted on the Internet could be harmful but made a policy choice that “plaintiffs may hold liable the person who creates or develops unlawful content, but not the interactive computer service provider who merely enables that content to be posted online.

[…]

Section 230 Provides Broad Immunity to Online Service Providers.

Consistent with its express terms and Congress’s purposes, courts nationwide have interpreted section 230 to establish broad immunity for online service providers. The eight federal circuit courts have addressed Section 230 have all found that the statute broadly insulates online providers for claims based on third-party content.

In summary, backpage.com alleges that it did not materially contribute to the development of the subscribers content simply by allowing an aggregation method of the various topics and that under the Roommates.com decision, the advertising subscribers where the content developers who fit their ads to be sorted and posted on the website. Backpage.com was acting as an intermediary for the advertisers as is done in open forums that are afforded immunity by the CDA.

Other arguments related to procedural issues of the Superior Court and possibly conflicts with federal court procedures and statutes.

The Electronic Frontier Foundation in the introduction of its Amicus filing offered an additional insight as to the possibly consequences of a decision against backpage.com

A primary goal of Contress in passing Section 230 of the federal Communications Decency Act (“Section 230”) was to encourage the development of communications technologies by Shielding intermediaries not only from liability but also from the cost and uncertainty associated with litigation. If online service providers were required to engage in protracted and expensive litigation whenever plaintiffs alleged that providers knew about or “developed” the offending content, those services would inevitably become more expensive, more restrictive, and ultimately less available for public speech. The trial court’s ruling sharply limiting the intermediary liability immunity created by Section 230 thus has ramifications far beyond the parties to appeal.

Two aspects of the trial court’s decision do particularly disturbing damage to Congressional intent.

First, the trial court misinterpreted Section 230. According to the statute’s plain language3 and its all but universal interpretation by the courts, Section 2230’s liability protections are not lost just because a service provider is aware of the potentially actionable substance of a user’s posting. Notice of a tortious posting does not negate the statutory immunity. Indeed, as the Sixth Circuit recently held, neither knowledge of the tortious content nor even encouragement to post it is sufficient to negate Section 230 immunity. See Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398, 415-15(6th Cir. 2014).

Second, the trial court specifically erred in rejecting Backpage’s Section 230 defense in the context of a motion to dismiss. The statute’s protections must necessarily be available to a defendant at the outset of the case to allow it to property dispose of the claims brought against it. This rule was recently confirmed by the D.C Circuit. See Klayman v. Zukerberg, 753 F3d 1254, 1357-59 (D.C. Cir. 2014)

Oral arguments before the Washington Supreme Court were held and video thereof is available via the TVW website. Both sides argued before the court and some excerpts of the presentation and questions from the justices are below. A link to the full video follows:

James Grant representing backpage.com

In opening argument, in summary, backpage.com argues that congress in enacting the CDA provided immunity to service providers from libelous or illegal content generated by users to preserve free speech on the internet. He argued the test for Section 230 is whether backpage.com created this subject content and that backpage.com did not specifically create this content. Further that a ruling against backpage.com would have a chilling effect against free speech on the internet by allowing lawsuits to proceed past the summary dismissal phase and continue into a costly and protracted discovery process. The threat of these legal matters would be greatly dissuasive for internet providers to allow open and free forums for third parties to offer content.

Mr. Grant in answering a question from Chief Justice Barbara Madsen, disclaimed there were similarities Roommates’ use of dropdown menus and content steering. In the Roommates case the findings were that since the site had interacted with subscribers by providing a questionnaire that asked questions about their preferences as to whom may obtain housing services that those questions screened and qualified users according to the site’s guidelines and this act resulted in revocation from immunity because they were specifically contributing to content in editing user’s profiles as a condition of posting on the site.

Justice Charles Johnson asked Mr. Grant if this was an “ostrich case” where backpage.com is essentially “sticking its head in the sand” and not paying attention to what is being done and if you don’t implicitly state facts that could result in a revocation of immunity would that be the argument for the basis in part for this case. Grant argued that this was not the intent of their case and deferred to the reference of Congress enacting the CDA to promote free speech and participation on the internet. Secondly, Congress encouraged a self-policing element that where internet sites would address illegal content without government regulation and are then provided with full immunity under the CDA. To do otherwise would, due to cost of liability and litigation, cause these websites to block all content rather than selectively enforcing rules.

Justice Steven Gonzalez asked if the backpage.com could not “with a straight face that escort services is something else most of the time” Mr. Grant answered that this was not necessarily the case with backpage.com and argued that other courts have concluded that “Escort” is a lawful category in which to place ads as constitutionally protected speech and protected by Section 230.

Chief Justice Madsen asked if backpage.com engaged in encouraging a certain kind of content and “why should there not be responsibility when you encourage a type of content?” Grant stated that encouraging content, inducing content is not sufficient in itself to have immunity rejected under Section 230. Some websites encourage actively certain types of content. Such as Roomates.com. Chief Justice Madsen further refined, rather succinctly, that Snuff websites specifically encourage a content that is intrinsically illegal to which Grant argued the content should alone should apply not the third party website and deferred responsibility to the ad makers.

Mr. Grant elaborated further to quote the Roommates.com decision by the 9th Circuit held that merely providing a “drop down” menu so that users could select themselves which section to post their ads is equivalent to the use of Escort on their site. The user provides the content not the provider.

In opening statement for the Child Victims of the case, Attorney Eric Bauer he argued that the Child Victims were trafficked by the website and that the pimps knew of the reputation of backpage.com and used the site’s format to be directed with guidance from the sites for them to post ads. The Content Providers are responsible in whole or in part for the content and that backpage.com is a Content Provider for the purpose of Section 230. The backpage.com immunity is not dependent upon it being an author for the ads but the development of the ads. Pimps then use the site because backpage.com, in part, there are instructions to pimps to post ads that work in evading law enforcement.

When asked if an internet service provider would be held liable for simply posting governing rules as to what can be posted on the their website was it the intention of the legislature to allow a website to craft a law that evades the law. Bauer mentioned that there was a good faith requirement that websites try to take illicit content from their website under Section 230 under a good Samaritan clause. Backpage.com does not make such an effort because it actively promotes a prostitution website and has become the largest provider of sex trafficking on the internet. It is further evidenced by law enforcement sting operations have posted ads asking for prostitution services and those ads have been removed by backpage.com which provides the traffickers with a safe market and that insures the johns that “they will get a victim instead of being arrested.”

Chief Justice Madsen asked Mr. Bauer to draw a conclusion that the posting rules specifically, by example, fostered the illegal ads. Clark responded that an example was the 15 minute element prohibition for ads. Such time is not practical for a legitimate, non-prostitution, escort because there is no time for a meeting so backpage.com instructed advertisers to avoid such statements because it would attract the attention of law enforcement.

Justice Charles Wiggins posted the question that the Child Victim’s entire case hinged on the question of whether backpage.com acted as a Content Provider and that is central to whether it violated the CDA. Bauer relied on that since backpage.com created the market for human sex trafficking that they are responsible as a Content Provider along with its offline activity that should be addressed in trial. Additionally, the reputation and branding of backpage.com fostered that the ads had a guiding hand in establish posting rules that allowed ad authors to avoid prosecution.

Justice Debra Stevens asked to elaborate on the encouragement of untraceable pre-paid credit cards and if backpage.com wrote a tool to allow users to scrub their personally identifiable information to avoid issues. Mr. Bauer responded that he would like to discover such a tool, if there was one, at trial but pointed to the backpage.com blog where the company instructed users on how to obtain these cards with tracing.

And finally, during rebuttal, Chief Justice Madsen posed that Congress had intended the law to be neutral in nature for internet providers so that they would have broad ability to protect themselves from liability but how could bakcpage.com in fine tuning a particular content that would be ultimately displayed on its website, then how could the website be granted broad immunity. Mr. Grant argued that many sites offer content that some would view as offensive and that neutrality is important and that it should not be subjected to liability on the sole premise that some would consider its content to be offensive, and being offensive is the basis for the plaintiff’s case.

The video may be viewed: HERE.

This case has the potential, at least so far in Washington, and perhaps elsewhere to define in liberal terms what constitutes actively participating in the content of its users by use of facilitating these contents and providing direction, which could have a chilling effect. But, by the same notion when a website hosts a particular brand, serves a particular market, and provides guidance as to how postings could be accepted and provided, along with instructions to how to avoid ensuing liability certain immunities do not apply. How active a website enforces general rules pertaining to illegal activity is also a factor but the neutrality and providing simply a location to engage in speech could likely still remain unchanged if the court narrowly defines what a potential act to deny immunity may be.

The case is J.S., S.L., and L.C. v. Village Voice Holdings, LLC d/b/a Backpage.com
For further reference:

Appellant’s Opening Brief, backpage.com
Respondent’s Brief, backpage.com

Sources:

Pfau Cochrane Vertetus Amala Attorneys at Law
TVW

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