Sometimes it’s very clear that a court is struggling with a decision. Especially when it begins an opinion like this:
This is a hard case — hard not in the sense that the legal issues defy resolution, but hard in the sense that the law requires that we, like the court below, deny relief to plaintiffs whose circumstances evoke outrage.
The case involved a publication called Backpage.com. And the issue the court was called upon to resolve was the tension between the Communications Decency Act – a law that gives tremendous protection to online publications for third party content and federal law against sex trafficking. As the court noted “[t]hese laudable legislative efforts do not fit together seamlessly.”
Backpage publishes classified advertising, including ads under the category “Adult Entertainment.” This category includes ads for “Escorts.” The lawsuit before the court was brought by three minor victims who were the subject of ads in the Escort section. According to their lawsuit, Backpage operated the Escort section in a manner that facilitated the sex trafficking that victimized them.
According to the suit, Backpage did not require phone number or e-mail verification for the ads. Photos submitted as part of the ads were stripped of identifying metadata. And while Backpage filters out terms like “high school” and “barely legal” from the ads, its filtering system allowed easy workarounds like “high schl” and brly legal.”
In its defense, Backpage relied chiefly on the Communications Decency Act, which provides that operators of online computer services are not considered the publisher of third party content. In Backpage’s view, any victimization resulted from the advertisements, which constituted content supplied by third parties. And the ads would therefore fall under the protection granted by the CDA.
The victims contended they weren’t seeking to treat Backpage as the publisher of the ads, but rather were focused on the surrounding conduct which facilitated the publication. Their claims rested largely on the federal statute that assigns liability to anyone who “knowingly benefits . . . from participation in a venture which that person knew or should have known has engaged in an act” of sex trafficking.
The victims, however, could not persuade the court that their claims arose from anything other than the publication of the ads themselves and the editorial decisions around the publication. As the court noted, in adopting the CDA, Congress “chose to grant broad protections to internet publishers.” And if that is to change, it will need to be through legislation, not court actions.