Website claims AG’s investigation is barred by the Communications Decency Act

Ongoing Crusade

In May, Missouri Attorney General Josh Hawley announced that he intended to take on Backpage.com, the second-largest classified ad website in the country. Hawley’s investigation, launched on May 10, inaugurated a new unit in his office dedicated specifically to prosecuting human traffickers. Critics of the site allege that it has become a hub of sex exploitation, with traffickers using it to sell sex through the “adult” sections. The investigation comes on the heels of a report issued in January by the United States Senate Permanent Subcommittee on Investigations, headed in part by Missouri Senator Claire McCaskill, which criticized the ad publisher for disguising the illegal nature of the services being offered.

Backpage has drawn negative regulatory attention over the years for allegedly facilitating human trafficking, with the National Association of Attorneys General describing the company as a “hub” of “human trafficking, especially the trafficking of minors.” Backpage CEO Carl Ferrer was even arrested on charges of pimping in 2016, based on a warrant issued by then-California Attorney General Kamala Harris – charges that were later dismissed.

AG Demand

On May 10, Hawley’s office issued a civil investigative demand to Ferrer seeking documents and information regarding the site’s leadership, ownership structure, advertising materials, promotional materials and editorial policies.

Attorney General Hawley’s office took a novel approach against Backpage, basing its demand on the investigative powers established under the Missouri Merchandising Practices Act (MMPA). The law prohibits “the act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.” Previous legal efforts against websites have foundered on Section 230 of the Communications Decency Act (CDA), which prohibits state-law civil or criminal claims against internet publishers based on content created by third parties.

Backpage Reply

Backpage responded by filing a complaint for injunctive and declaratory relief against the attorney general’s office on July 11, citing Section 230 of the CDA. The complaint maintains that the attorney general’s office is “misusing the MMPA to burden, harass and inhibit First Amendment-protected communications.” The complaint goes on to say that “the MMPA itself specifically recognizes that liability under the act should rest with the third parties who advertise, and not with the publishers that distribute the ads.”

The Takeaway

Companies intending to hide behind CDA protections should be aware that state investigators are exploring alternate legal theories in order to pursue investigations. Here, the AG hopes that investigating the site under Missouri laws governing merchandising practices – the first time a law enforcement agency has done so – will prove more fruitful than traditional inquiries. “Any violations of the law we may find, we can prosecute,” said the AG. “Civil and criminal penalties are possible here.”