Background

Classified advertising websites are making it as easy as ordering a pizza to order human beings for sex from the privacy of one’s home, office, hotel room, or cell phone. Many of those bought and sold on such websites are sexually trafficked children and adults. One such website, Backpage.com, facilitates this activity by editing ads to conceal the illegality of underlying criminal activity.

Despite investigations by the U.S. Congress and several court cases, websites like Backpage.com are getting away with their role in facilitating sex trafficking. Why? Because of an outdated law that is shielding them from justice. That law is the Communications Decency Act (CDA). Most of it was struck down by the Supreme Court years ago, but Section 230 remains and unfortunately, it is being interpreted by the courts to give Backpage immunity for online sex trafficking.

For this reason we are calling on the U.S. Congress to amend the CDA this year. Two important bills that would amend the CDA are currently before the Congress: H.R. 1865 Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA)  and S. 1693 Stop Enabling Sex Traffickers Act (SESTA).

Backpage and their tech industry allies, like Google, are fighting passage of these bills tooth and nail. But you can join us in sending a message to Congress that online sex trafficking must be stopped! To learn more this critical issue, please review the information below and take the action opportunities we’ve created.

If you care about stopping sex trafficking there is no single legal reform that is more vital that amending the Communications Decency Act now!

Talking Points

In the digital age, sex trafficking of children and adults flourishes online. Why? In large part because Section 230 of the Communications Decency Act (CDA) has been interpreted by federal and state courts to 1): prevent sex trafficking victims from suing websites that advertised them as for sale under either state or federal laws, and 2): prevent states from enforcing criminal laws against websites that carry ads for sex trafficking.

Congress enacted the Communications Decency Act of 1996 (CDA) in the early days of the Internet to protect children from online exposure to indecent content. In Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court struck down the Internet indecency provisions of the CDA but did not strike down the provisions that became 47 USC 230.

47 USC 230 was enacted in response to two court cases. In Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), CompuServe’s motion for a summary judgment was granted because the court determined that CompuServe was a distributor and not a publisher of libelous comments posted on a “computerized database” and because it had not been shown that CompuServe knew or should have known of the libelous comments. In Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995), the court granted plaintiffs motion for partial summary judgement after determining that Prodigy was a publisher of libelous comments posted on its computer bulletin board because Prodigy had held itself out to the public and its members as controlling content and had implemented this control through its software screening program and “Guidelines” which “Board Leaders” were required to enforce.

The import of these court decisions was clear: if an online service did little or nothing to curb defamatory content, it would not be held liable; if it tried to curb such content it could be liable.

In response to Stratton Oakmont, Representatives Chris Cox (R-CA) and Ron Wyden (D-OR) introduced an amendment to the CDA which became 47 USC 230. Subsection 230(c)(1) states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

What (c)(1) does not say is that no provider or user of an interactive computer service may be treated as a distributor of information provided by another, but that is how most courts interpreted it. For a good argument that 230(c)(1) was not intended to eliminate the difference between distributors and publishers, see Barrett v. Rosenthal, 114 Cal.App.4th 1379 (Cal. Ct. App. 2004).

Congress provided additional protection for providers and users of an interactive computer services in 230(c)(2)(A) by ensuring that no provider or user is held civilly liable on account of any action voluntarily taken in good faith to restrict access to or availability of objectionable material. The efforts of Prodigy when owned by IBM and Sears to make its service family friendly is a good place to begin to determine what is a good faith effort.

Furthermore, 230(c) is entitle “Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material;” and Subsection (c) is part of a law (47 U.S.C. 230) which was intended to provide “Protection for private blocking and screening of offensive material.”

How then did a law intended to protect providers or users of interactive computer services who act voluntarily and in good faith to restrict access to or availability of objectionable material become a protection against civil liability for those who accept payment to carry ads for sex trafficking knowing or having reason to know the ads are for sex trafficking? Surely this was not the intent of members of Congress who voted to add Section 230 to Title 47.

Subsection 230(e)(3) makes clear that States cannot in a civil action treat a provider or user of an interactive computer service as the publisher or speaker of information provided by another and cannot hold a provider or user civilly liable on account of action voluntarily taken in good faith to restrict access to or availability of objectionable material. But 230(e)(3) was not intended to prevent a State from criminally prosecuting a provider or user for facilitating sex trafficking, since such providers/users are not acting in good faith.

In a letter to members of Congress dated August 16, 2017 and signed by Attorneys General from 48 states, the National Association of Attorneys General had this to say:

In 2013, Attorneys General from 49 states and territories wrote to Congress, informing it that some courts have interpreted the Communications Decency Act of 1996 (“CDA”) to render state and local authorities unable to take action against companies that actively profit from the promotion and facilitation of sex trafficking and crimes against children… The undersigned Attorneys General once again respectfully request… Congress amend the CDA to affirm that state, territorial, and local authorities retain their traditional jurisdiction to investigate and prosecute those who facilitate illicit acts. . . .

. . . Backpage.com is facilitating—and profiting from—these illegal activities. However, certain interpretations of the CDA have resulted in companies like Backpage.com remaining outside the reach of state and local law enforcement …We do not believe that was Congress’s intent in passing the CDA, and . . . do not believe that is Congress’s intent now. . . .

Federal enforcement alone has proved insufficient to stem the growth in online promotion of child sex trafficking. Those on the front lines of the battle against the sexual exploitation of children—state and local law enforcement—must have the clear authority to investigate and prosecute facilitators of these and other horrible crimes. . . .

In 2017, two bills were introduced in Congress (S. 1693 and H.R. 1865) to amend 47 USC 230.  While NCOSE has reservations about the language of these bills and hopes improvements will be made during the legislative process, we laud the bill’s sponsors and support their efforts.

Unfortunately, some in the technology community, including Google, are fighting any changes to Section 230–even if the changes would lead to a drastic reduction in online sex trafficking.

Google has blitzed congressional offices with this email asking your Senators and Representatives to oppose S. 1693 and H.R. 1865. For Google and other tech industry titans, corporate profits are more important than the lives of children and adults who are victims of online sex trafficking.

A coalition of groups headed by Consumer Watchdog recently released a report, entitled How Google’s Backing of Backpage Protects Child Sex Trafficking, which states in part, “An analysis of public records, tax documents and legal filings and other publicly-available documents shows Google has financed and supported a broad array of groups and individuals who have fought aggressively to thwart legal challenges to Backpage’s business model.”

Moreover, a Harvard professor alleges that Google earned over a billion dollars in revenue from unlawful advertising that Google failed to block, which included ads for child sex trafficking.

Reportedly, lobbyists for Google also helped eliminate a version of a bill that would have required firms to determine the age of people appearing in their online adult ads.

As if this isn’t bad enough, a recent news report now suggests that Internet companies are even seeking to incorporate language similar to Section 230 of the CDA into the North American Free Trade Agreement (NAFTA), which would extend the hedge of protection for websites that facilitate sex trafficking across the North American continent.

Backpage.com brings the seedy street corners of America’s red-light districts to home computers. A classified advertising website known as “the hub” for prostitution advertising, Backpage.com serves as a virtual auction block where sex buyers can shop for human beings for sex from the privacy of their home, office, hotel room, or cell phone. Many of those bought and sold via the website are sexually trafficked women and children. The website facilitates this activity by editing ads to conceal the illegality of underlying criminal activity.

See NCOSE’s Web Page With More Details About Backpage

For years, a quick scan of the “adult services” section on Backpage.com revealed dozens of pornographic photos used as advertisements promoting the buying and selling of women and children for sex in cities across the country. The National Center on Missing and Exploited Children has reported that 73% of all child sex trafficking cases its handled involved Backpage.com. With operations in 97 countries and 943 locations worldwide, Backpage is likely the largest facilitator of sex trafficking in the world.

Backpage has come under tough scrutiny from activists and law enforcement officials in the U.S. for serving as the platform for the open buying and selling of human beings for sex. One prominent example is this letter from 51 state Attorneys General (including Guam and American Samoa), explaining that many cases of sexual trafficking involving children are directly related to the posting of ads on Backpage.com.

In October 2016, as a result of a three-year investigation spearheaded by the California Attorney General’s office, authorities in Texas arrested Backpage.com CEO Carl Ferrer on felony charges of pimping a minor, pimping, and conspiracy to commit pimping. Controlling shareholders Michael Lacey and James Larkin were also charged with conspiracy to commit pimping. A judge later threw out the case, but in December 2016, California’s Attorney General announced new charges including 13 counts of pimping and conspiracy to commit pimping, and 26 counts of money laundering against the men.

The California Attorney General’s office reported that during the period of January 2013 to March 2015, 99% of Backpage’s worldwide income was directly attributable to its ads selling people for sex. With sites in cities around the world, Backpage ads in California alone are reported to have generated $2.5 million per month and more than $51 million during the 29-month period. Additionally, Ferrer created similar sites such as EvilEmpire.com and BigCity.com with related content to expand the company’s market share of the sexual exploitation industry.

Concurrently, Backpage.com has been under investigation by members of the U.S. Congress. During this process Backpage CEO Carl Ferrer refused to comply with a subpoena to appear before the U.S. Senate. As a result, Ferrer was issued the first civil contempt action authorized by the Senate in more than twenty years.

On January 9, 2017, Backpage.com “blocked” its prostitution advertising in America. Its prostitution advertising pages now greet visitors with the message: “The government has unconstitutionally censored this content.” This change occurred the night before Backpage CEO Carl Ferrer and founders, Michael Lacey and James Larkin, were scheduled to testify to the U.S. Senate’s Permanent Subcommittee on Homeland Security and Governmental Affairs in their investigation into sex trafficking occurring via their website. At the hearing, Backpage executives refused to testify.

The public should not fall for Backpage’s theatrical attempt to portray itself as the victim of government persecution or censorship. The only people under attack are those used as human fodder in Backpage’s gristmill of sexual exploitation. While Backpage likes to wrap itself in the First Amendment, free speech is not a license to orchestrate sexual exploitation. Moreover, the prostitution advertising occurring on Backpage.com simply migrated to other sections of the website.

On January 9, 2017, the U.S. Senate’s Permanent Subcommittee on Investigations issued its report entitled, “Backpage.com’s Knowing Facilitation of Online Sex Trafficking.” For nearly two years the Committee investigated Backpage’s involvement with sex trafficking, and found that, “The internal company documents obtained by the Subcommittee conclusively show that Backpage’s public defense is a fiction.”

Among the report’s finding is evidence that Backpage knowingly concealed evidence of criminality by systematically editing prostitution ads. Using a special filter, terms indicative of sexual exploitation, such as Lolitateenagerapeyoungamber alertlittle girlteenfreshinnocent, and school girl, were deleted from prostitution ads. The report also stated that the company was editing 70 to 80% of ads in the adult (i.e., prostitution) section.

Nevertheless, Backpage executives have thus far escaped criminal conviction and civil liabilities for their role in sex trafficking due to a provision in the Communication Decency Act (CDA) known as Section 230. Congress passed the CDA in 1996 with the intent of protecting children from Internet pornography. Much of this law was later overturned by the Supreme Court, but Section 230 still stands.

Several survivors of sex trafficking have pursued courts cases against Backpage.com for its role in facilitating their sexual exploitation, but their cases have been dismissed as courts have consistently misinterpreted the very plain meaning of Section 230. The actual, plain meaning of the CDA offers interactive computer service providers (ICSPs) (e.g., Backpage.com) a limited defense to civil suits not derived from criminal actions. However, the courts have consistently chosen to ignore the plain language of the CDA, misinterpret phrases they claim to be ambiguous, thereby offering ICSPs complete immunity from all criminal and civil liability.

The result is a lawless Internet. Crimes that are not permissible offline are allowed to flourish as long as they are facilitated via the Internet. People operating as pimps are allowed to continue their role as organizers of sexual exploitation as long as they do so behind the veil of an ICSP.

Therefore, we call on the U.S. Congress to take swift and strong action to amend the CDA so that ICSPs not acting in good faith no longer have de facto immunity for facilitating egregious sex exploitation on a global scale.

 

2017 Dirty Dozen: Backpage.com

This is not a complete list of supporting organizations, however it shows the breadth and depth of groups speaking out about this need. We will try to update this regularly.

National District Attorneys Association;
National Association of Police Organizations;
Major Cities Chiefs Association;
Fraternal Order of Police;
National Organization for Victim Assistance;
National Association of Women Law Enforcement Executives (NAWLEE);
WIFLE Foundation Inc. (Women in Federal Law Enforcement);
DeliverFund;
Consumer Watchdog;
National Center on Sexual Exploitation;
Exodus Cry;
Shared Hope International;
Coalition Against Trafficking In Women;
Legal Momentum;
Demand Abolition;
FAIR Girls;
Missouri Police Chiefs Association;
Missouri Attorney General Josh Hawley;
Missouri Association of Prosecuting Attorneys;
St. Louis Police Officers Association;
Airline Ambassadors International;
Courtney’s House;
The Covering House;
Missouri KidsFirst;
Missouri Juvenile Justice Association;
Faith & Freedom Coalition;
Ethics and Religious Liberty Commission, Southern Baptist Convention;
Focus on the Family;
Coalition Against Trafficking and Exploitation-CATE;
Friends Committee on National Legislation;
Faith & Action in the Nation’s Capital;
Cornerstones of Care;
Louisiana Association of Chiefs of Police;
Center for Family and Human Rights (C-FAM);
Crisis Aid International;
Ambassador Swanee Hunt;
Concerned Women for America;
National Organization for Women;
NEST Foundation;
Skagit County Coalition Against Trafficking;
Missouri Coalition Against Domestic and Sexual Violence;
Eastern NC Stop Human Trafficking Now;
Foundation for a Slavery Free World;
Church of Scientology;
She is Rising;
Innocents at Risk;
Saving Innocence;
Artists for Human Rights;
Enough is Enough;
Redeeming Joy

A: Free speech is not a license to facilitate or commit criminal acts. Historically we’ve seen this affirmed by the courts over and over again, for example in cases of blackmail (e.g., “Pay me $5,000 or I’ll burn your house down) or defamation (i.e., laws which protect people from untrue claims). In other words, freedom of speech is not an absolute right, but like other liberties is constrained from on infringing on the safety and well-being of the general public (e.g., yelling “Fire!” in a public venue when there is no fire).

A: The status quo is unacceptable. Tragically, US federal courts have actually interpreted the CDA to give sweeping immunity to Backpage.com, a website with a business model built on sexual exploitation and sex trafficking. Web-based businesses have an ethical responsibility to ensure they operate within the confines of the law. Similar to a brick and mortar store owner that knowingly allows sex trafficking to occur on its premises, websites that knowingly (or with reckless disregard) facilitate sex trafficking and prostitution cannot be given broad immunity that absolves them from any responsibility. Websites that conduct due diligence to keep sexual exploitation off of their platforms will not be threatened by an amendment to the CDA, any more than a store owner operating in good conscience will be threatened by laws against illegal business practices.

Further, it’s important to note that websites are companies or owned-platforms that do not shoulder a burden to display every post or form of speech. Websites all around the world constantly make editorial decisions about what kind of content they want on their site—and they are not guilty of “censoring free speech” when they remove unwanted content from their platforms.

A: This is a specious argument because Internet companies are in the advertising/data mining business. Thus, constant and meticulous monitoring of third-party content is actually their business model.

Additionally, the technology industry has made dramatic innovations in the past several years in the application of algorithms, blocking, and filtering. While some large platforms may not be able to monitor every third-party post, they can institute algorithms, filtering, and moderation practices that will catch a large portion of content facilitating sex trafficking. They can also improve by responding quickly and effectively to any reports of suspected commercial sexual exploitation on their site. Such efforts are the markers of corporations acting in “good faith.” The safe harbor accorded to websites which “filter in good faith” will remain and be protective of content-neutral sites. The proposed amendments to the Communications Decency Act specifically target bad actors who are engaged in the crime of sex trafficking.

Actions

Ask Your Members of Congress to Support Amending the CDA

Watch & Share Film: I Am Jane Doe

This intense documentary follows real cases of American girls enslaved in the child sex trade through ads in a newspaper’s online classified section.

Watch on Netflix here.

Film’s Website

Take Action Against Backpage, #1 seller of people for sex online

Backpage.com brings the seedy street corners of America’s red-light districts to home computers. A classified advertising website known as “the hub” for prostitution advertising, Backpage.com serves as a virtual auction block where sex buyers can shop for human beings for sex from the privacy of their home, office, hotel room, or cell phone. Many of those bought and sold via the website are sexually trafficked women and children. The website facilitates this activity by editing ads to conceal the illegality of underlying criminal activity.

TAKE ACTION HERE

THANK THESE MEMBERS FOR THEIR LEADERSHIP

Thank Senator Rob Portman for leading the way in the U.S. Senate with S. 1693 and Representative Ann Wagner for championing a bill in the U.S. House of Representatives, H.R. 1865, to amend the Communications Decency Act, 47 USC 230.

@RepAnnWagner

@SenRobPortman

Updates

Haley Halverson Joins EWTN to Discuss Amending the CDA

Last night, our Vice President of Advocacy and Outreach Haley Halverson joined EWTN News Nightly and host Lauren Ashburn to discuss the sexual exploitation of boys and men.  She also explained what Congress can do to help prevent the sex trafficking of children and adults online. Responding to a question about the alarming rates of sexual exploitation of boys in […]

Haley Halverson on EWTN

STATEMENT: No Single Legal Reform More Vital to Stop Sex Trafficking

Washington, DC – As Congress returns from its August recess, the National Center on Sexual Exploitation calls on members of both the House and Senate to move swiftly to amend Section 230 Communications Decency Act (CDA)—a law that as currently interpreted by federal courts shields Internet companies that facilitate sex trafficking. “Classified advertising websites make […]

Amend the CDA: No Single Legal Reform More Vital to Stop Sex Trafficking

As Congress returns from its August recess, the National Center on Sexual Exploitation calls on members of both the House and Senate to move swiftly to amend Section 230 Communications Decency Act (CDA)—a law that as currently interpreted by federal courts shields Internet companies that facilitate sex trafficking. Classified advertising websites make it as easy […]

Background: Google’s opposition to Congressional amendments to the Communications Decency Act

In 2017, two Bills were introduced in Congress (S. 1693 and H.R. 1865) to amend 47 USC 230 of the Communications Decency Act.  While NCOSE has reservations about the language of these Bills and hopes changes will be made during the legislative process, we laud the Bill’s sponsors and support their efforts. Unfortunately, some in […]

Thank This Tech Company for Standing Against Online Sex Trafficking

Oracle, a multinational computer technology corporation, became the very first major tech company to publicly support Congressional efforts to amend the Communications Decency Act Section 230, which currently allows broad immunity to websites facilitating sex trafficking. While many companies and activists in the technology industry have opposed these efforts, Oracle has taken a stand for […]

If Motels Can Be Held Liable for Facilitating Sex Trafficking, Why Can’t Websites?

As reported by the Star Tribune, a motel in California has settled a case brought by Los Angeles City for its alleged role as a hub for sex trafficking activity. Motel 6 has agreed to pay $250,000 to settle a lawsuit brought by Los Angeles that alleged one of the chain’s locations was a base […]

motel 6 sex trafficking

Understanding Online Sex Trafficking and the Communications Decency Act

BACKGROUND INFO ON THE COMMUNICATIONS DECENCY ACT: In this digital age, sex trafficking of children and adults flourishes online. Why? In good measure because 47 USC 230 has been interpreted by federal and state courts to prevent victims of sex trafficking from suing these websites under either state or federal laws and to prevent States […]

communications decency act

50 Attorneys General Ask Congress to Amend the Communications Decency Act…AGAIN

On August 16, 2017, 50 state and territorial attorneys general in a bi-partisan coalition urged Congress to affirm the authority of state, local, and territorial law enforcement to investigate and prosecute companies that profit from the promotion and facilitation of sex trafficking. View Letter here. In July 2013, 49 state and territorial attorneys general sent […]

Video

Haley Halverson Joins EWTN to Discuss Amending the CDA

Mary Mazzio Interview: Google’s Opposition to Anti-Trafficking Bill

Voices of Survivors on Amending Section 230 of the CDA

How Google backs Backpage Sex-Trafficking, Press Conference Pt. 1

Asking about I AM JANE DOE at Google Shareholder Meeting

Amend the Communications Decency Act to Give Access to Justice to Victims of Sex Trafficking – Sam Vardaman, Shared Hope Intl.

Sen. Portman Highlights Backpage Hearing on Senate Floor

Sen. Heitkamp Speaks about Backpage & CDA

Testimony of Yiota Souras from NCMEC RE Backpage

Documentary Trailer for I am Jane Doe

John Simpson at Consumer Watchdog

Innovative Legal Solutions to Combat the Rise of Sexual Exploitation – Savanah Lawrence, NCOSE

Tools

Use these graphics and articles to spread the word about this issue! #AmendtheCDA

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Google lobbyist backpage sex trafficking
Google sex trafficking backpage