Since 2010, Backpage.com LLC (“Backpage”) has allowed users to post advertisements for adult services on its website. That same year, Craigslist.com shut down its sex-related advertisement section. Subsequently, traffic to Backpage for adult advertisments increased.
In October 2014, three minor victims of sex trafficking brought suit against Backpage in the U.S. District Court for the District of Massachusetts under the Trafficking Victims Protection Reauthorization Act (“TVPRA”). All three victims were fifteen when they were first trafficked through Backpage. Jane Doe #1 and Jane Doe #2 each estimated that they were raped approximately 1,000 times as a result of the advertisements on Backpage. Jane Doe #3’s pimp forced her to post her own ads on Backpage, including forcing her to take her own ad photos. By allowing these advertisements to be posted on their media, Backpage effectively facilitated the victimization of these individuals.
Although the district court dismissed the action in its entirety, the First Circuit Court of Appeals heard oral arguments on appeal last month, in February 2015. Yet, on March 14, 2016, the First Circuit affirmed the district court’s dismissal of the lawsuit.
The court’s decision hinged on their interpretation of Section 230(c)(2) of the Communications Decency Act (CDA) which provides websites with certain protections. Under the CDA, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker or any information provided by another information content provider.” As further explained in the CSE Institute’s policy paper regarding Backpage, Section 230(c)(2) means a website that passively hosts content created by website users cannot be sued as if the cause of action treats the website as if it created or published that user-created content.
Although the victims pointed to specific activities that appear to be beyond the scope of traditional editorial or publishing functions, the court ruled against the victims in dismissing their suit. The court concluded that Backpage’s actions, including the website’s enforcement of its rules regarding permitted and not permitted terms and the stripping of metadata from photographs in advertisements, were within the purview of Section 230(c)(1). Despite the fact that Backpage users are still able to post advertisements conveying minor victims and adult victims, the webpage is shielded by the immunity provided in the CDA.
The court’s dismissal is a disappointing result in our country’s continued legal and policy efforts to combat sex trafficking of minor and adult victims on internet sites like Backpage.
Eliza Roeck, a victim advocate and the Director of Programs at Shared Hope International, conveyed her disappointment with the First Circuit’s decision. Ms. Roeck explained that “Backpage refuses to pay damages to victims from whose exploitation they profited in settlements while these young women still struggle to recover from the trauma they have suffered.” She pointed out that that Backpage “refuse[s] to take down their adult section which provides anonymity and easy accessibility for predators who seek to exploit our children;” and, “[i]nstead, Backpage hides behind unintended preemptions established by the Communications Decency Act of 1996, an Internet regulation law designed to protect children while the Internet was in its infancy.” Ms. Roeck further condemned the website because it “has failed to protect our children,” and “[i]t turned a profit every time children and exploited adults were posted in ads targeted towards adult men paid to rape them.”
In light of the disappointing First Circuit decision, the CSE Institute would like to commend the United States Senate on its recent vote to hold the CEO of Backpage in contempt. We will continue to observe the ensuing legal actions and provide updates as they unfold.