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Once Again, Just Because Someone Used Backpage.com For Trafficking, Doesn't Mean Backpage Is Liable

from the the-sort-of-'win'-no-one-feels-great-about dept

The criminal activity alleged may be horrific, but that’s a non-factor when it comes to the consideration of protections afforded to website owners who host third-party content. The ongoing lawsuit against Backpage.com, filed by victims of sex trafficking (who were minors at the time), has reached an end. (Until appealed, of course.)

The arguments deployed by the plaintiffs were nothing new. In numerous cases, ranging from defamation claims to alleged prostitution of minors, plaintiffs have made similar arguments. The theory — unsupported by law or common sense — that website owners should be held legally responsible for the postings of others isn’t novel. But it has yet to find a court willing to advance the theory. Why? Because doing so would result in the following sort of ridiculousness, which, while ridiculous, would chill free speech and cause many website owners to get out of the website-owning business.

In their lawsuit against Backpage.com, the plaintiffs—three women who were forced into selling sex as teenage runaways—argued similarly, saying that because their trafficker found clients on Backpage, the website was responsible for their exploitation. But by this logic, Facebook is guilty whenever anyone posts a threat there, Craigslist is culpable should a landlord want “females only,” and Reason is guilty should any of you folks broker a drug deal in the comments. Thankfully, section 230 of the Communications Decency Act, passed in 1996, established that the Internet doesn’t work this way.

A federal district court in Massachussetts addresses the multiple allegations by the plaintiffs in their argument seeking to find Backpage.com responsible for the postings of others, and finds that even in the totality, it fails to rise to the level needed to strip the site of its Section 230 protections.

Singly or in the aggregate, the allegedly sordid practices of Backpage identified by amici amount to neither affirmative participation in an illegal venture nor active web content creation. Nothing in the escorts section of Backpage requires users to offer or search for commercial sex with children. The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal. The creation of sponsored ads with excerpts taken from the original posts reflects the illegality (or legality) of the original posts and nothing more. Similarly, the automatic generation of navigational path names that identify the ads as falling within the “escorts” category is not content creation. The stripping of metadata from photographs is a standard practice among Internet service providers. Hosting anonymous users and accepting payments from anonymous sources in Bitcoins, peppercorns, or whatever, might have been made illegal by Congress, but it was not. Backpage’s passivity and imperfect filtering system may be appropriate targets for criticism, but they do not transform Backpage into an information content provider.

Summing it up — after dismissing all claims — the court notes that the sexual trafficking of children is abhorrent, but that Section 230 protections aren’t a sliding scale to be applied with varying amounts of force depending on the severity of the alleged actions.

To avoid any misunderstanding, let me make it clear that the court is not unsympathetic to the tragic plight described by Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3. Nor does it regard the sexual trafficking of children as anything other than an abhorrent evil. Finally, the court is not naïve – I am fully aware that sex traffickers and other purveyors of illegal wares ranging from drugs to pornography exploit the vulnerabilities of the Internet as a marketing tool. Whether one agrees with its stated policy or not (a policy driven not simply by economic concerns, but also by technological and constitutional considerations), Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned. Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact.

This is buttressed by a quote from another decision, quoted earlier in the discussion of the plaintiffs’ claims — one that deals specifically with another abhorrent criminal act.

Child pornography obviously is intolerable, but civil immunity for interactive service providers does not constitute “tolerance” of child pornography any more than civil immunity from the numerous other forms of harmful content that third parties may create constitutes approval of that content. Section 230 does not limit anyone’s ability to bring criminal or civil actions against the actual wrongdoers, the individuals who actually create and consume the child pornography. Here, both the neighbor [who created the child pornography] and the moderator of the Candyman web site have been prosecuted and are serving sentences in federal prison. Further, the section 230(e)(1) exemption permits law enforcement authorities to bring criminal charges against even interactive service providers in the event that they themselves actually violate federal criminal laws.

In essence, just because it’s easier to pursue site owners than criminals, and that any recovery of damages may seem more likely, doesn’t make it the correct path for retribution. Those who trafficked these plaintiffs are the wrongdoers, not the site that hosted these criminals’ ads.

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Companies: backpage.com

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Comments on “Once Again, Just Because Someone Used Backpage.com For Trafficking, Doesn't Mean Backpage Is Liable”

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Ninja (profile) says:

Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact.

I like this part. It does not matter if a service/person/whoever is morally objectionable. If it is acting within the law it’s free to go unless the laws themselves are modified. I wish the SCOTUS had followed such obvious reasoning with the Aereo case.

DannyB (profile) says:

Re: Re:

The supreme court did the right thing (for rich people) in the Aereo case. There, the plaintiffs were rich people limiting access to content that was freely available over the airwaves. The supreme court clearly recognizes the overriding interest of greed here compared to trivial matters such as human trafficking (or worse).

(sarcasm, but sadly true about the importance of money)

Gwiz (profile) says:

Lowery tries to spin this like it’s all Google’s fault:


If I was Lowery, I’d be careful about pushing too hard on the secondary liability front. Who knows where that slippery slope could end. I’d venture a guess that Lowery wouldn’t want to be liable for crimes committed by people who listen to his music.

Coyne Tibbets (profile) says:

Re: Re:

Secondary liability could end in wondrous things. Just imagine if…

* AT&T could be held liable for those illegal pitch phone calls
* The average ISP could be held liable for delivering spam
* Credit card companies could be held liable for bad behavior by merchants
* Chemical companies could be held liable for improper disposal by dump operators
* Walmart could be held liable for contractors hiring illegal immigrants
* Much, much more I’m sure.

(Help me out here: What else do we all hate that we could hold someone secondarily liable for?)

And all of that, of course, is why secondary liability is never getting off the ground, even on the hated internet.

Mike Masnick (profile) says:

Re: Re:

Lowery tries to spin this like it’s all Google’s fault:

Wow. He gets more and more wrong by the day. Also, weird and wrong attack on FFTF.

Just right now FFTF is actively opposed to USA Freedom and TPA — and Google is in favor both. While Lowery insists that the two are always aligned “on every single issue.” Except not the two big ones they’re fighting today.

Anonymous Coward says:


Whoa, breaking news, stop the presses!

Just yesterday, two days after Backpage.com won it’s case in federal court, the owners of myRedBook.com, a small, San Francisco-based website very similar to Backpage.com, were sentenced to 13 months in prison by another federal court.

Adult website owner sentenced to 13 months in prison
By – Associated Press – Thursday, May 21, 2015

SAN FRANCISCO (AP) – The operator of a Northern California-based adult website that facilitated prostitution has been sentenced to 13 months in prison.

U.S. Attorney Melinda Haag said Thursday Eric Omuro’s conviction is the first federal conviction of a website operator for facilitating prostitution.

The 54-year-old man from Mountain View pleaded guilty in December.

Prosecutors say that as part of a plea deal Omuro acknowledged that myRedBook.com, a website he owned, managed and operated, hosted ads posted by prostitutes.

Omuro agreed to give up $1.28 million in cash and property and the domain names for myRedBook.com and sfRedBook.com.

According to an affidavit submitted in connection with the sentencing hearing, the FBI identified more than 50 juveniles who were also advertised on myRedBook for the purpose of prostitution.


Why the huge difference in “justice”? Could it have anything to do with the fact of Backpage.com being owned by a national media corporation, while myRedBook.com was basically a small local shoestring operation without benefit of a legal departmant?

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