Back in June, we wrote about a challenge -- from both the Village Voice's Backpage.com and the Internet Archive to a new law in Washington State, SB 6251, that effectively criminalized online service providers based on actions by their users. We've long talked about the problems of such secondary liability efforts, and thankfully the US has section 230 of the CDA that forbids most such efforts to apply secondary liability. And, indeed, the court has now granted a preliminary injunction against the law, citing the Section 230 issues, among other things. Basically, the court sides with Backpage and the Internet Archive on every issue here, finding the state's reasoning in support of the law to be weak.

There are some important points in this ruling. First up, the court said that Section 230 applied, even though this was about a criminal law issue, rather than a civil law issue. Many (even Section 230 supporters) have argued that Section 230 only applies to civil law. The court notes that the law says it doesn't apply to federal criminal laws, but says nothing about state laws. And, as such, CDA 230 should be seen to apply to state laws, even if they're criminal:

If Congress did not want the CDA to apply in state criminal actions, it would have said so.

So, the law is already on shaky legs due to it being knocked out by Section 230. However, the court goes further to focus on how the bill violates the First Amendment as well, targeting the suppression of speech. It's a pretty detailed explanation for how laws that target speech, rather than action, have a much higher bar, and this bill does not appear to meet that higher bar. Most importantly, the court recognizes that any laws targeting speech can have severe chilling effects, even on legal speech, and that's unacceptable under the First Amendment:

The most problematic aspect of SB 6251 is not the protected speech that it regulates by its terms, but the likelihood that it will chill a substantial amount of protected speech in addition to the unprotected speech that Defendants argue the statute was meant to address

The court even notes that it could create chilling effects and potentially criminalize sites like Facebook and Twitter as well. While the state denied this possibility, the judge points out that it's entirely possible to read the law in that way, and that alone could create chilling effects from companies trying to avoid criminal liability. Finally, the court notes that the law also almost certainly violates the Commerce Clause, because it would regulate companies located entirely outside of Washington State.

In other words, the state is on very thin ice here, as the court isn't buying any of its arguments for why the statute is legal. At this point in the case, the discussion is just over whether or not an injunction is granted to block the enforcement of the law -- and that's now done. There's still much more to come in the case, but the law doesn't look likely to survive at this point, and that's a good thing. There are some real issues that the law seeks to take on (mainly dealing with prostitution and child porn), but it does so in such a broad way and with the wrong tool: criminalizing service providers. It's good that the courts are recognizing how this law is massively overbroad.

You may recall a couple years ago that a bunch of politicians, led by state Attorneys General, went on a huge grandstanding campaign against Craigslist, because some people were using Craigslist for prostitution -- including some human trafficking. As we noted at the time (repeatedly), Craigslist was incredibly cooperative with law enforcement, and smart law enforcement officials actually used Craigslist as a tool to help discover, track down and arrest those who were breaking the law. But, rather than recognize that Craigslist was a useful tool, a huge media campaign was set off, leading Craigslist to shut down its "adult services" section, despite plenty of legal uses.

Of course, exactly as we predicted, the people who were previously using Craigslist for illegal reasons didn't magically disappear. They just shifted to other sites. One popular one was Backpage, owned by Village Voice Media, publishers of the famed alternative newspaper The Village Voice. Unlike Craigslist, Backpage told the grandstanders that it wouldn't back down. It noted that it cooperates with law enforcement, and that it understands the law and why it's not liable for the actions of its users. A lawsuit filed against the company resulted in Backpage being declared legal.

You would think, maybe, that the media and the granstanders would get the message. But, no, they just keep at it. Nicholas Kristoff at the NY Times recently posted a ridiculously silly column, which first "outs" Goldman Sachs as a minority investor in Village Voice Media (leading GS to sell all its shares before the article went to press, despite it having nothing to do with how the company operates), and then goes on to insist that the owners of the site must be "held accountable."

This is, to put it plainly, stupid. Kristof even acknowledges that the real way to stop human trafficking and underage prostitution is to have "prosecutors... focus more on pimps and johns." You know how they can do that? By using sites like Backpage to collect evidence and to find out who's actually responsible. But, immediately after that, Kristof insists that:

Closing down the leading Web site used by traffickers would complicate their lives, and after so many years of girls being trafficked on this site, it’s time to hold owners accountable.

That's ridiculous. Two years ago, we were told that the "leading website used by traffickers" was Craigslist. And the same sort of idiotically short-sighted campaign closed down that part of the service, and it did nothing to complicate the traffickers lives, because they quickly moved on to a variety of other platforms, including some that don't cooperate nearly as closely with law enforcement as Craigslist did (and Backpage does today). If Backpage is pressured into stopping adult ads, then the traffickers will move on to other sites within hours -- and many will be less willing to cooperate. Blaming the service provider isn't just stupid and pointless, it's counterproductive. It's helping the very people that the grandstanders claim to be targeting.

It's really quite sickening. The best way to stop these awful acts is to go after those responsible. Adding some ridiculous (and probably unconstitutional) secondary liability to third parties doesn't help. It makes the problem worse. Kristof and others may have good intentions, but their simple (and confounding) inability to think more than a single step ahead is really disappointing. In an effort to do good, they're causing a tremendous amount of harm. Not only that, but they're advocating to set an awful precedent when it comes to secondary liability, taking away the basic principle that you don't blame the tool, you blame the person who actually is breaking the law. Kristof is an award-winning journalist, and clearly a very smart person. That he'd be so short-sighted on something like this -- and stoop to the level of trying to drag other companies through the mud -- is immensely disappointing.

Last year, we wrote about a former child prostitute who sued Village Voice Media for its Backpage classified ads offerings, since this was a tool previously used to sell her. Now there has been a lot of controversy in the last couple of years (mainly from grandstanding politicians) about prostitution ads on Craigslist and Backpage. However, as has been pointed out over and over and over again, the liability belongs on the person actually committing the crime, not the service provider. And, in fact, the law, via Section 230 of the CDA gives service providers immunity.

Still, we were a little worried that since this case was highly emotionally charged, and involved a child prostitute, that the court might make a bad ruling. Instead, it appears that court has made a really strong and useful ruling explaining repeatedly why Backpage is not liable. The girl's lawyers basically tried every trick in the book to get around Section 230 immunity, but the court debunked each and every one. Many of the claims she made are the types of claims we see in the comments from people who don't understand safe harbors (like saying that you lose safe harbors if you make money). Eric Goldman, at the link above, walks one by one through each of the lawyer's attempts to get around Section 230, and explains why the judge rejected it. It's worth reading the whole thing, but here's a snippet:

• Backpage allows keyword searches. Citing several cases, including Jurin and Rosetta Stone, the court says this is irrelevant.
• Backpage created an adult category. The court cites Dart v. Craigslist in concluding this is irrelevant.
• Backpage takes steps to increase its revenues. Backpage allegedly "tout[ed] its website as a 'highly tuned marketing site' and instruct[ed] posters of ads on how to best increase the impact of those ads." The court responds: "to find Backpage to be not immune from suit based on M.A.'s allegations about how it structured its website in order to increase its profits would be to create a for-profit exception to § 230's broad grant of immunity. This the Court may not do."
• Backpage allegedly knew prostitution was advertised on the site. The court cites several cases for the proposition that knowledge is irrelevant to 230's immunity.

It's nice to see, yet again, a court recognize that liability should be properly applied, and we shouldn't blame 3rd party service providers for the actions of their users.

On Tuesday, we wrote about how a group of grandstanding state attorneys general had moved on from blaming Craigslist for the actions of its users, now that they had successfully censored that site, and began demanding similar censorship for Backpage.com, the online classifieds from Village Voice Media. As a few people have sent in, Backpage does not seem interested in backing down, posting a public response and pointing out that they are operating perfectly in accordance with the law, that even the AGs admit that Backpage cooperates with law enforcement, and that the AGs would be better served going after those actually involved in the activities, rather than blaming third parties:

While no system is perfect, even the AGs acknowledge Backpage.com's good-faith cooperation with law enforcement.

In the last two years, Backpage.com users have posted 58 million ads and only 6 million in the adult services section. Federal and state authorities have called on Backpage.com to testify in just five cases involving alleged abuse of underage persons. Backpage.com continues to respond to valid subpoenas from law enforcement officials whose job it is to investigate, apprehend and prosecute criminals who wrongfully post illegal ads and victimize others.

Backpage.com is disappointed that the AGs have determined to shift blame from criminal predators to a legal business operator in an apparent attempt to capitalize on political opportunity during the election season.

They also note: "Censorship will not create public safety nor will it rid the world of exploitation."

Of course, rather than recognizing any of this and maybe backing down, Connecticut Attorney General (and Senate candidate) Richard Blumenthal responded in typically misleading fashion:

"I am deeply disappointed by this unfortunate and unfounded resistance to taking common-sense steps toward protecting women and children. I am hopeful that the company will reconsider its resistance and do the right thing. I will consult with my fellow attorneys general and consider possible next steps."

Notice that he does not respond to any of the actual points raised. He does not respond to the fact that shutting down these services won't do anything to help protect women and children and will almost certainly make the problem worse. He just pretends that the world is the exact opposite of what it is. It's as if Richard Blumenthal thinks that everyone out there is incredibly dumb and believes the world works as he says it does, rather than how it actually works.

We've already explain how the political grandstanding campaign against Craigslist, that got the company to shut down its "adult services" section based on no legal reason, does plenty to harm the people the various state attorneys general think they're "helping." Craigslist has been highly active in working with police to use the site to find and arrest those actually responsible for dangerous exploitation of children. But by shutting off that tool, the ads simply migrate to sites that are more underground and less willing to work with law enforcement. Apparently, though, the AGs are stuck on the political headlines, and don't care at all for anyone's actual safety.

So they've moved on to their next target: 21 state attorneys general have kicked off a grandstanding campaign against Backpage, the online classifieds arm of Village Voice Media (the same company that was just sued over the same issue). Once again, Backpage is one of the companies that has worked closely with law enforcement -- and the AGs even admit that in their announcement demanding the company shut down the tool.

This is incredibly dumb and frustrating. In the pursuit of headlines falsely claiming that they're "protecting" children, these AGs are only serving to attack the companies who help them track down those actually responsible for child exploitation and child prostitution. All they're doing is making the problem worse. Those who are exploiting these kids in the worst possible way won't stop doing it -- they'll just use other means to do so, in a way that's harder for police to track them down and to capture them.