from the as-it-should-be dept
Backpage.com has been pretty busy in court. The site, which basically took over the market for “adult” classified ads after Craigslist shut down its ads (after being misleadingly attacked) has been sued a bunch of times, almost always by people misunderstanding Section 230 of the CDA which, as we’ve discussed hundreds of times, says that sites are not liable for the actions of their users. Last year, however, Backpage won a big case in Massachusetts in May, but then lost one in Washington in September. (Separately, it won a different case going after Cook County Sheriff Thomas Dart for meddling and getting credit card companies to stop supporting Backpage.com — the company just asked the lower court to dismiss what’s left of that case). The September ruling was surprising, as it’s one of a very, very, very small number of cases that basically says that Section 230 doesn’t apply.
Now, the appeal on the Massachusetts case has brought another good Section 230 win, saying that Backpage.com is not liable. Now, it should be clearly stated that both the Washington and Massachusetts cases involve some really awful and horrifying situations, in which girls were forced into sex trafficking. The situations that those girls were put in is horrifying and those responsible should be punished as much as the law will allow. But here’s the important part: Backpage.com wasn’t who was responsible. In fact, as at least some in law enforcement have recognized, Backpage.com can be a useful tool for tracking down such criminal activity.
It’s been unfortunately easy for some to smear those who support Section 230 in these cases as being indifferent or somehow cruel to the plight of those who were trafficked. That’s ridiculous. The explanation in the filing alone made me feel ill. But just because what happened to them was horrific and unconscionable, it doesn’t mean you lash out and blame a tool that was used, rather than those who were actually responsible. Thankfully, unlike the Washington court, the 1st Circuit Appeals court understood this.
The specific issue in this case has to do with the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which says that anyone who “knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act” of sex trafficking, can be held liable under the law. But, of course, Backpage notes that, as a platform, to claim that it is liable would be to reject CDA 230 that says it cannot be held liable “as a publisher” for information published by others. The crux of the argument against Backpage here is that it’s not claiming that Backpage is a “publisher,” but merely that it “knowingly benefits” from sex trafficking. They argued that based on the way Backpage is set up, in terms of what it allows or disallows for posting, how it allows people to post anonymously, how it strips metadata from photographs and more, makes it different from a standard “publishing” platform. This is a pretty common attack on Section 230, claiming that it does more than a publisher and thus isn’t protected. Courts have almost universally rejected that, unless those additional actions themselves could be seen to break the law (such as the Roommates.com case where the company was seen to violate fair housing laws because it had discriminatory pull downs that it set up itself).
But the court rejects this argument, saying that everything Backpage.com does is a traditional publisher activity.
As an initial matter, some of the challenged practices
? most obviously, the choice of what words or phrases can be
displayed on the site ? are traditional publisher functions under
any coherent definition of the term. See Zeran, 129 F.3d at 330
(describing decisions about “whether to publish, withdraw,
postpone or alter content” as “traditional editorial functions”).
And after careful consideration, we are convinced that the
“publisher or speaker” language of section 230(c)(1) extends to
the formulation of precisely the sort of website policies and
practices that the appellants assail.
Precedent cinches the matter. In Lycos, we considered
the argument that the prophylaxis of section 230(c) did not
encompass “decisions regarding the ‘construct and operation'” of
a defendant’s websites. 478 F.3d at 422. There, the plaintiffs
alleged that Lycos permitted users to register under multiple
screen names and provided links to “objective financial
information” from a finance-related message board, thus enabling
“individuals to spread misinformation more credibly.” Id. at 420.
We noted that, at bottom, the plaintiffs were “ultimately alleging
that the construct and operation of Lycos’s web sites contributed
to the proliferation of misinformation” and held that as long as
“the cause of action is one that would treat the service provider
as the publisher of a particular posting, immunity applies not
only for the service provider’s decisions with respect to that
posting, but also for its inherent decisions about how to treat
postings generally.” Id. at 422. In short, “Lycos’s decision not
to reduce misinformation by changing its web site policies was as
much an editorial decision with respect to that misinformation as
a decision not to delete a particular posting.”
And thus, the court finds that Backpage.com clearly is a publisher and protected by Section 230.
The lawsuit also tries to get around Section 230 by really trying to twist the so-called “Good Samaritan” clause of Section 230. This is a part of Section 230 that is often misunderstood or ignored, but is super important. It’s the part that says that you don’t lose your Section 230 protections if you do moderate any content on your website. While some Section 230 haters falsely argue that the law encourages sites to “leave up absolutely everything,” that’s not true. Section 230(c)(2) actually is helpful in encouraging moderation by sites, since they don’t lose their safe harbors if they do moderate.
However, in this case, the plaintiffs tried to attack that by noting that the clause talks about “moderation in good faith,” and they tried to argue that Backpage.com wasn’t moderating “in good faith.” The court doesn’t buy it, saying that the argument is “misplaced.”
Next up, they argue that because Section 230 does not apply to federal crimes, it shouldn’t apply in this case, since the TVPRA is a federal criminal statute. But that fails because this is a civil lawsuit, which the court quickly points out:
appellants posit that the TVPRA’s civil suit provision is part of
the “enforcement” of a federal criminal statute under the plain
meaning of that term and, thus, outside the protections afforded
by section 230(c)(1). This argument, though creative, does not
The court notes that it’s quite clear that the exception for criminal statutes clearly is meant for only criminal cases, not civil cases based on criminal statutes.
Here, the subsection’s title, “[n]o effect on
criminal law,” quite clearly indicates that the provision is
limited to criminal prosecutions.
It is equally telling that where Congress wanted to
include both civil and criminal remedies in CDA provisions, it did
so through broader language. For instance, section 230(e)(4)
states that the protections of section 230 should not “be construed
to limit the application of the Electronic Communications Privacy
Act of 1986,” a statute that contains both criminal penalties and
civil remedies…. Preserving the
“application” of this Act contrasts with Congress’s significantly
narrower word choice in safeguarding the “enforcement” of federal
criminal statutes. The normal presumption is that the employment
of different words within the same statutory scheme is deliberate,
so the terms ordinarily should be given differing meanings.
Not surprisingly, the plaintiffs also try to argue that Backpage.com did specific things to actually block attempts to combat sex trafficking, and it was those actions that are not protected by Section 230. But the court notes that these claims are not backed up by facts:
This causal chain is shot through with conjecture: it
pyramids speculative inference upon speculative inference. This
rampant guesswork extends to the effect of the alleged
misrepresentations on an indeterminate number of third parties,
the real impact of Backpage’s behavior on the overall marketplace
for sex trafficking, and the odds that the appellants would not
have been victimized had Backpage been more forthright.
When all is said and done, it is apparent that the
attenuated causal chain proposed by the appellants is forged
entirely out of surmise.
In the “really stretching it” arena, they also used the one other exception to Section 230: intellectual property law. For that, they argued that the pictures that were posted (mostly by the individuals who were running the sex trafficking) were “unauthorized.” Of course, even if that were the case, that wouldn’t make Backpage liable. The court quickly recognizes that if anyone unlawfully “benefited” from the unauthorized use of the photographs, it was the traffickers, not Backpage:
Here, there is no basis for an inference that Backpage
appropriated the commercial value of the appellants’ images.
Although Backpage does profit from the sale of advertisements, it
is not the entity that benefits from the misappropriation. A
publisher like Backpage is “merely the conduit through which the
advertising and publicity matter of customers” is conveyed…, and
the party who actually benefits from the misappropriation is the
advertiser. Matters might be different if Backpage had used the
pictures to advertise its own services… but the appellants
proffer no such claim.
Taking the IP claim even further, at least one photo used by the traffickers was actually taken by one of the girls herself. That girl then registered the copyright and used that to claim infringement. But, of course, the registration occurred after the case had been filed (and after the photo had been taken down), meaning that statutory damages are not available. The discussion goes into even more detail on why the copyright claim is a total non-starter that appears to have been added late as a last gasp effort to find something to use to go after Backpage.
None of this is to argue that Backpage.com is a wonderful site or a shining beacon. It may have its problems. But, as we’ve seen for years, people keep wanting to blame the tool for how people use it. Even a major NY Times columnist keeps writing totally misleading columns that try to place the blame on Backpage.com. This is desperately misguided. Just as it was misguided when everyone tried to blame Craigslist for the same thing. You’d think that, after Craigslist stopped accepting adult ads, and those ads quickly moved to Backpage.com, people might realize that blaming the website is monumentally stupid, because it’s not the website causing this. Take down one website and another will pop up. Or maybe a few others. That’s not the issue. You should blame the people who are actually breaking the law — the people who are engaged in the sex trafficking business, who are forcing these women to participate. And, a great way to track down those people is to use tools like Backpage to track them down, rather than attacking the tool itself.
Filed Under: 1st circuit, copyright, liability, section 230, sex trafficking