A few years back, we detailed how ongoing grandstanding and toothless legal threats finally forced Craigslist to shut down its "adult services" section. None of that did anything to stop prostitution or human trafficking online. It just moved to other sites -- which was particularly ridiculous, given that Craigslist had been proactive in working with law enforcement to help them track down the actual perpetrators of crimes via the site. And, the illegal behavior just moved on to somewhere else -- as did the ridiculous grandstanding. The main target since Craigslist shut down its services: Backpage.com, the Craigslist-alike site that spun off from Village Voice Media. And now, after an even more intense grandstanding and legal campaign, Backpage has also been pressured to shut down
its adult section. If you go to it now, you'll see this instead:
And here's the craziest part. This happened on the same day the Supreme Court basically said Backpage is legal
and the legal claims against it are bogus. But the law is apparently meaningless in the face of a pair of grandstanding Senators who want their names in the headlines, pretending they care about human trafficking, while actually making the problems worse.
Last May, we wrote about an excellent 1st Circuit appeals court victory
for Backpage.com, which (like nearly every other court before them) found that the site was clearly protected by Section 230 of the Communications Decency Act. As we've discussed many, many times, there are a number of people out there who would like to ignore the fact that while some users
of Backpage may be violating the law to engage in prostitution, the proper response is to go after those actually breaking the law, and not the platform they're using. That's the very heart of Section 230, and it's exactly what many, many courts have realized. The case we wrote about last May (and also wrote about when Backpage prevailed at the district court level the previous May
) involved three clear victims: women who were forced into selling sex as teenage runaways. Their situation is undoubtedly awful -- but it was the fault of those who exploited and abused them, and not the online service they happened to use.
On Monday, the Supreme Court effectively put its stamp of approval on the 1st Circuit appeals court ruling by denying the plaintiff's petition to hear an appeal on that ruling
. While it's not quite the same as saying that the Supreme Court fully endorsed the opinion of the 1st Circuit saying that Section 230 clearly protects Backpage from being blamed for how people use the site, it certainly suggests that the court didn't see any major problems with the ruling.
But... there's just something about Backpage that makes politicians want to stupidly and misleadingly grandstand. Just hours after the Supreme Court effectively blessed the 1st Circuit ruling saying Backpage hadn't broken the law, Senator Claire McCaskill released a report (with Senator Rob Portman) that blasts Backpage
for "knowing facilitation of online sex trafficking." This is in advance of a grandstanding Senate hearing
that McCaskill/Portman have prepared to parade out the executives of Backpage to yell at them for facilitating sex trafficking, even just as the Supreme Court has basically said this entire line of argument is completely bogus.
The report is a joke. The crux of the report is that, via subpoena, the Senate staffers were able to determine that Backpage edits and or bans certain words that indicate an ad is for prostitution. Let me repeat that: the Senate is mainly annoyed that Backpage proactively looks for and blocks situations where it appears that the ads may be for prostitution -- especially involving children. Yet, the Senate investigators twist this to make it sound like a bad thing
Over time, Backpage reprogrammed its electronic filters to reject an ad in its
entirety if it contained certain egregious words suggestive of sex trafficking. But
the company implemented this change by coaching its customers on how to post
“clean” ads for illegal transactions. When a user attempted to post an ad with a
forbidden word, the user would receive an error message identifying the problematic
word choice to “help” the user, as Ferrer put it. For example, in 2012, a user
advertising sex with a “teen” would get the error message: “Sorry, ‘teen’ is a banned
term.” Through simply redrafting the ad, the user would be permitted to post a
I'm not entirely clear what they're complaining about here. You could also quite clearly see this as Backpage letting users know that it is not a place that should be used for sex trafficking, because it clearly alerts them to things that they don't want on the site. But the Senate staffers seem to have intentionally spun this to appear in the absolute worst light.
On top of that, Section 230 is again quite clear that any effort a platform does take to moderate stuff doesn't change the fact that a site is protected from liability. And that's to encourage
exactly the type of behavior that Backpage is already doing: which is choosing
voluntarily to block certain types of ads that they don't want. Now, I'm sure some will argue, as the Senate report tries to say, that because Backpage then allows another ad without the "banned" words through, that it's not stopping the underlying activity, but that's basically mandating that any online platform have incredibly adaptive and complex
filters to make sure that anyone who tries to get around their filters cannot do so. That's a very
dangerous precedent, and would basically make it impossible for any online service to exist, without being massive.
The report argues that the "editing" of posts by Backpage takes away 230 immunity:
Backpage and its officers have successfully invoked Section 230 in at least
two other cases to avoid criminal or civil responsibility for activities on the site. In
neither case, however, did the court have before it evidence that Backpage had
moved beyond passive publication of third-party content to editing content to
The argument here rests on the ruling in the infamous Roommates.com case
from nearly a decade ago -- which remains the biggest case where a Section 230 defense failed. But that's a very different situation. Roommates.com failed because the Roommates system itself was asking questions deemed to be illegal under housing law (about racial preferences and such). That was part of the site that was fully created and controlled by Roommates.com. The difference here is that while Backpage may be running some of its posts through a filter, that's to moderate the content to remove
descriptions of illegal sex trafficking or illegal prostitution. In other words, what Backpage is doing is actually moderating content, which is explicitly allowed and encouraged
by the "Good Samirtan clause" of CDA 230, found in section (c)
. That part of the law says that the immunity applies even for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." It seems quite clear that Backpage editing posts to remove
such content falls squarely into that bucket.
The report is also strange in that it uses Backpage's own helpfulness to law enforcement against it
. It highlights how law enforcement regularly gets reports and details of child trafficking because of Backpage
to the latest report from NCMEC, 73% of the suspected child trafficking reports it
receives from the public involve Backpage. According to the Massachusetts
Attorney General, “[t]he vast majority of prosecutions for sex trafficking now
involve online advertising, and most of those advertisements appear on
In other words, one of the best tools out there for finding
sex trafficking is... Backpage.com. And the Senators response is to blame Backpage
and make them legally liable? How does that make any sense at all? Now that Backpage has shut down those ads, they'll scatter elsewhere. Sex trafficking won't stop and it will be harder for law enforcement to track down and find actual perpetrators
or save actual victims. Let's be clear: Senators McCaskill and Portman, in an effort to get their names in the headlines, have just made sex trafficking easier
, by making law enforcement's job harder.
The report also makes a big deal out of the fact that Backpage's execs know that the site is used for trafficking and prostitution, but, again, so what? That's like the same claims that the legacy entertainment industry made about YouTube. Just because you know that a site can
and sometimes is
used for illegal behavior does not automatically make the site liable for that illegal activity. That's quite clear under Section 230, yet totally ignored by this report.
The Supreme Court got this right... while Senators Claire McCaskill and Rob Portman appear to be yet another set of politicians who are grandstanding by blaming a platform, rather than doing anything that will actually
help stop sex trafficking. And the end result is that Backpage has shuttered that section. This won't stop or even diminish sex trafficking and prostitution online. Just as it moved from Craigslist to Backpage, it will continue to move elsewhere -- and that will probably be to a site that is even less
willing to work with law enforcement to help track down and stop real illegal behavior. Similarly, this witchhunt has taught any new platform that any attempt to diminish
the blatant use for sex trafficking and prostitution will be twisted to pretend that it's just trying to "hide" that activity.
This is a travesty. McCaskill and Portman will get their headlines, and sex trafficking will continue -- it will just be harder to help actual victims.