Judge Leaning Strongly Towards Tossing Pimping Charges Against Backpage Executives

from the when-all-you-have-is-a-grandstand... dept

Because there doesn't seem to be a politician out there that can interact with Backpages without grandstanding, the attorneys general of two states -- California's Kamala Harris and Texas' Ken Paxton -- combined forces to have company executives arrested on pimping charges.

The criminal complaint somehow tried to portray the fees charged by Backpage as profiting from prostitution. While it should have been explicitly clear Backpages was immune from prosecution thanks to Section 230, the two AGs decided to close their eyes, ears, and brains and press forward.

It's likely nothing will come of this misguided prosecution -- one that appeared to be instigated almost solely for the press it would generate, rather than for its legal merits. The California court handling the case has pretty much thrown the whole thing out.

It's a tentative ruling that doesn't have the full force of a published opinion behind it, but it does give the solid impression that any dreams of being able to prosecute site owners for third-party content will have to be taken to Congress, rather than local courts -- though, the judge has said he'll allow the parties to present more arguments before making a final decision. As it stands now, Section 230 prevents the sort of thing these two AGs are pursuing.

From the opinion [PDF]:

Backpage’s decision to charge money to allow a third party to post content, as well as any decisions regarding posting rules, search engines and information on how a user can increase ad visibility are all traditional publishing decisions and are generally immunized under the CDA. In short, the victimization resulted from the third party’s placement of the ad, not because Backpage profiting from the ad placement.

This does some pretty severe damage the state's argument that charging for ads means profiting from sex trafficking. The last paragraph of the ruling similarly upholds Backpage's Section 230 immunity, even as it moved content from site to site.

Here, the People allege that Defendants “created” content and are not entitled to immunity. However, on the face of the allegations, Defendants have, at most, republished material that was created by a third party. The People allege that the content was taken from ads placed by Backpage Escort users and posted onto EvilEmpire.com. The declaration in support of Defendants’ arrest warrant states that the ads placed in EvilEmpire.com were “essentially identical” to the ads placed by the third party on Backpage.com and that EvilEmpire was an “additional platform for Backpage Escort ads.” This demonstrates republication, not content creation. Republication is entitled to immunity under the CDA. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63.)

To make the charges stick, the state would have to prove that the Backpage actually participated in sex trafficking -- something no one has even alleged at this point. Instead, those fighting Backpage have simply chosen to attack the most visible target, rather than those posting ads and/or exploiting underage prostitutes.

The ruling says there's only one way to have the supposed immunity "problem" addressed and that's to push Congress into doing something about it.

As stated above, Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.

No one should be in any hurry for Congress to take another look at Section 230 immunity. Right now, it does a very solid job protecting websites and social media platforms from the speech and actions of their users. Without it, the internet would be a much smaller, more-locked down venue for communication and nowhere near as useful for disseminating information. Anything Congress would do at this point would only harm it.

Politicians and prosecutors need to stop taking the easy route and go after those actually breaking the law. If cops want to track down sex traffickers and haul them to court, fantastic. But it does no one any good to pursue baseless pimping charges against site owners, rather than those actually engaged in criminal activity.

Filed Under: cda 230, intermediary liability, kamala harris, ken paxton, pimping, section 230
Companies: backpage


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Groaker (profile), 17 Nov 2016 @ 7:03am

    A judge that can read and follow the law needs to be impeached.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 17 Nov 2016 @ 7:32am

    Oh if only...

    It's likely nothing will come of this misguided prosecution -- one that appeared to be instigated almost solely for the press it would generate, rather than for its legal merits. The California court handling the case has pretty much thrown the whole thing out.

    Far from it, it's served it's purpose admirably as far as the AG's are concerned. They get to boast about how it demonstrates how 'tough on sex-trafficking' they are(contrary to what their actions, if successful would actually do), and they can use a loss to argue that this is yet another example of that dastardly 230 getting in the way and 'protecting criminals from prosecution and punishment'.

    Winning the case was never the goal. It would have been a nice bonus if they had managed it, but simply making the case in court got them everything they wanted from it, at no risk or cost to themselves.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Nov 2016 @ 7:59am

      Re: Oh if only...

      Yes, everything in politics is very measured and controlled. From actions, to speech to writing. Every word used down to punctuation. If it weren't for one little comma, we wouldn't have the 2nd amendment as an individual right (contrary to its intention).

      There is no doubt that great thought was put into this lawsuit and the spin that could be put on it.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Nov 2016 @ 12:19pm

        Re: Re: Oh if only...

        "If it weren't for one little comma, we wouldn't have the 2nd amendment as an individual right..."

        This is a terrible interpretation. The comma changes very little.

        A militia is a military created and composed of the common folk. In other words a non-professional military. With or without the comma the 2nd clearly states that all Citizens have a right to keep and bear arms so that a militia can be formed at a moments notice to fight all enemies foreign and domestic.
        "A well regulated Militia, being necessary to the security of a free State,"
        part is just making it clear why
        " the right of the people to keep and bear Arms, shall not be infringed."

        The 2nd is a direct statement that a Militia is the most Superior Branch of Armed service in the land.

        "
        U.S. Constitution Online
        Quick Links: FAQ Topics Forums Documents Timeline Kids Vermont Constitution Map Citation USConstitution.net
        U.S. Constitution - Article 2 Section 2
        Article 2 - The Executive Branch
        Section 2 - Civilian Power Over Military, Cabinet, Pardon Power, Appointments



        The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

        The only time the President has power over the Military or Militia is when called into actual service.

        If you think there is no purpose to having a Militia in this day and age, then it is clear you lack wisdom. Nothing new is under the Sun. The same lies, treachery, avarice, and corruption exists to this day within governments instituted by man, whether local, state, or federal.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Nov 2016 @ 7:18pm

        Re: Re: Oh if only...

        On an unrelated note, the NRA is calling (They use IMC as the caller ID name) and state "The second amendment is under more threat than ever!" please listen to this short message....

        Now, I'm all for legal ownership of firearms. I just think if I have to show ID to drive a car, cash a check, or vote, then maybe I should have to show ID every time I buy a gun or get ammo. I bought a pistol and 500 rounds for it a few weeks ago and never had to show ID.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Nov 2016 @ 8:24am

    It'd be nice, but...

    "No one should be in any hurry for Congress to take another look at Section 230 immunity."

    I expect this to be legislated out of existence before the end of 2017. The incoming administration has made it abundantly clear that silencing criticism (on social media and elsewhere) is one of its priorities, and it will act promptly to remove this clause and thus put site operators in the position of risking everything anytime a user posts so much as a single sentence.

    Think I'm wrong? I HOPE I'm wrong. Wait and watch.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Nov 2016 @ 9:03am

    Special kind of stupid

    Here we have a crime that is hard to locate, human trafficking.

    This site pops up making it simple to locate the pers and victims.

    Great we can use this FREE information and do undercover stings and actually stop this underground criminal activity and rescue human trafficking victims!

    Instead lawmakers/LEOs/prosecutors want to shut the site down because that will like somehow totally prevent and stop this criminal activity!

    It takes a special kind of stupid to think shutting down the sites listing criminal activity will stop the criminal activity.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 17 Nov 2016 @ 12:33pm

      "If I can't see it it doesn't exist."

      The ones grandstanding over stuff like this don't actually give a damn about stopping human trafficking, the only thing they care about is looking like they're 'doing something', hence why they go after the easy target despite the fact that doing so actually makes it harder a problem to deal with.

      If they can brush it under the rug they can pretend that they've accomplished something and use it to further their own careers, that this makes it significantly more difficult to prevent and stop is simply not something they think or care about.

      reply to this | link to this | view in chronology ]

  • icon
    Groaker (profile), 17 Nov 2016 @ 9:36am

    Sex, drugs and R&R always make good stories for the evening news. Doesn't matter if their net effect is negative, or they are as ridiculous as the Jenkem hoax. Lawmakers, prosecutors and LEOs will be there attempting to glory in the news coverage. They should bask in Jenkem.

    reply to this | link to this | view in chronology ]

  • identicon
    Sok Puppette, 17 Nov 2016 @ 10:58am

    Intermediary liability could be a good thing...

    ... because right now one of the biggest problems with the Internet is that it's too dependent on intermediaries. More push behind decentralization could lead to valuable technical changes.

    Maybe, anyway.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Nov 2016 @ 11:13am

      Re: Intermediary liability could be a good thing...

      Protection from intermediary liability is essential for a distributed and useful Internet, as lots of small companies are even less able to afford the legal bills that the legacy content industries can force on them. Those large
      legacy players are well versed in using the legal system to bankrupt small companies and start ups, if they can find the slightest excuse to get a case into the courts, and then appeal every loss to the next highest court..

      reply to this | link to this | view in chronology ]

      • identicon
        Sok Puppette, 17 Nov 2016 @ 1:24pm

        Re: Re: Intermediary liability could be a good thing...

        Protection from intermediary liability is essential for a distributed and useful Internet, as lots of small companies ...

        "Companies"?

        If you have to have a company to run the service, it's not decentralized enough. Even a wee little company.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Nov 2016 @ 3:26pm

          Re: Re: Re: Intermediary liability could be a good thing...

          The Internet has become so widely used because of centralized services, which means that people know where to go for particular services. Backpages is such a service, its where people go to place and look at adverts as individuals. An Internet of Individual machines would be much more like the dial up telephone network, only of use to contact the people you know, or who make themselves known via some other communications channel.
          If the Internet had remained at the Gopher and Usenet level, very few people would use it. While it may seem strange to the more technologically erudite, to many people the Internet is Facebook or Google, because that is where they start to find things on the Internet, and without such centralized services they would be lost and give up using the Internet.

          reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.