February 22, 2017

Backpage: Exploiting Women, Children, and the Law

What would you do if you found your teenage daughter posing nearly nude on a mainstream website that sells women and girls for sex? Would you panic? Would your heart break? Would you do everything you could to get your daughter back?

Would you contact the website and inform them they are selling a minor, and demand they take the photos down and help you find your child? Perhaps you might even write something like this:

Your website has ads featuring our 16 year old daughter, posing as an escort. – She is being pimped out by her old [boyfriend], and she is underage. – I have emailed the ad multiple times using your website, but have gotten no response… – For God’s sake, she’s only 16…. Stuff like this shouldn’t be allowed to happen.[1]

Sadly, this is not a hypothetical scenario for many parents all across the country and all across the globe. In fact, those words are the actual language used by a concerned parent whose 16-year-old daughter was being sold for sex on Backpage.com.

Backpage, the Greatest Facilitator of Sex Trafficking in the United States

Backpage.com is an online “classifieds” website that sells bikes and stuff. Except to Backpage, “and stuff” means selling women and children, and that stuff—selling women and children—provides the bulk of their ad revenues.  The very name “Backpage” implies prostitution. “Backpage” refers to the back pages of print newspapers, where prostitution ads are frequently located.  So while many in the general public don’t know the meaning or purpose of Backpage, sex buyers know exactly what they are getting when they go to that website.

And Backpage makes a lot of money selling sex slaves. It “is the market leader in that industry, with annual revenues [in 2015] in excess of $130 million.”[2] As of 2013, Backpage had 80% of the market share, making “eight out of every ten dollars spent on online commercial sex advertising in the United States.”[3]

By now you must be thinking, “But pimping and sex trafficking is illegal. How does Backpage get away with it?” Unfortunately websites like Backpage don’t just exploit women and children, they also exploit the courts and a major federal statute.

Communications Decency Act Section 230

In 1995, Congress passed the Communications Decency Act in an effort to protect children from indecency online. However, the Supreme Court invalidated most of the law except for Section 230, which gives immunity to interactive computer service providers who publish information posted by others.

There are some benefits to Section 230.  It allows a free market place of objects, thoughts and ideas.  For instance, section 230 will protect a classifieds site from liability if a person sells you a broken bike. You can’t sue the site for the broken bike. You can only go after the guy who sold it to you.

However, people are not objects to be sold online. But the courts have interpreted the CDA to give third-party hosting sites carte blanche immunity for everything and anything that occurs online. This is how Backpage gets away with profiting from the sale of women and children.  Their argument is “Hey, we’re innocent.  It’s not our fault that pimps sell women and children on here and sex buyers buy them.” But they are not innocent.

Backpage facilitates and promotes the sale of people for sex by:

  1. Creating a forum for the sale and purchase of prostituted persons;
  2. Ignoring and refusing to implement suggestions by the National Center for Missing and Exploited Children that would better protect children from child sexual exploitation;
  3. Removing all metadata from photos so that law enforcement cannot track and find sex trafficking victims;
  4. Requiring no verification to ensure publishers are over 18 years old;
  5. Rarely deleting illegal postings;
  6. Editing ads that are illegal so they don’t appear per se illegal; and
  7. Feigning to report suspicious ads to avoid public oversight and accountability for the thousands of ads ignored and scrubbed.

Many victims have been trying to hold Backpage accountable for its actions and promotion of sexual exploitation.  Sadly, most courts simply dismiss the case without considering the facts, citing Section 230 of the CDA.

However, public outcry is rising against Backpage and it looks like the tide is turning against them.

2016 – The Turning of the Tide

At the beginning of 2016, the fight against Backpage suffered a loss. A lawsuit, out of Massachusetts did not survive appellate scrutiny. In response, anti-trafficking groups joined together, appealing the case to the United States Supreme Court, arguing that Backpage is unworthy of any CDA immunity. Unfortunately, the Supreme Court recently denied the appeal.  However, this may be the end of losing in the courts for victims of Backpage.

In fact, one very important lawsuit has survived. At the end of 2015, the Washington State Supreme Court agreed that Backpage’s policies and procedures, if proven, disqualify them from the protections of the CDA. This is an incredible victory against Backpage because this is the only case in the country to survive CDA immunity. Now the plaintiffs are building their case against Backpage, and other recent victories are bolstering their claims.

Further, in the spring of 2016, the United States Senate, unanimously voted to hold Backpage in contempt for refusing to comply with a Senate subcommittee’s subpoenas for documents concerning its business practices. This was a huge victory! After Backpage tried to appeal and lost, it was forced to submit internal company documents showing overt business practices that should disqualify Backpage from the protections of the CDA.

Additionally, the California Attorney General brought criminal charges against Backpage’s CEO and controlling shareholders.  They were arrested and charged with pimping a minor, pimping, and conspiracy to commit pimping. Originally, the case was dismissed on grounds of CDA immunity. But the California Attorney General announced new charges against Backpage and so the battle continues!

In early 2017, the Senate Permanent Subcommittee on Investigations held its final hearing on Backpage. The Senators scathingly questioned Backpage’s executives regarding its business practices that promote sex trafficking. However, the executives’ only reply was to plead the Fifth Amendment. Nevertheless, the executives’ lack of testimony did not hinder the investigation. Based on its many findings, the Subcommittee determined that Backpage’s actions should disqualify them from CDA immunity. The committee’s chief said:

It seems likely that Backpage has been breaking the law as it exists right now… Based on the evidence we’ve collected and the testimony we’ve received… [we] will consider whether to refer this matter to the Department of Justice and to state Attorneys General across the country for further investigation.[4]

This is a great victory that authorities recognize Backpage’s actions constitute criminal behavior and disqualify them from the protections of CDA immunity!

On the evening before the Senate Subcommittee hearing, Backpage “suspended” its Adult Ad section, claiming that the “government has unconstitutionally censored this content.” While we were happy to see the suspension of the Adult Ads section, it only applied to the United States, and we immediately saw a migration of those ads to other parts of Backpage’s site like the massage services and dating pages.  Clearly, this grandstanding was all a ploy to play the martyr, try to win public sympathy, and feign compliance while still continuing the exploitation of women, children, and the law.

Backpage is culpable for the facilitation of the exploitation of women and children. In light of the recent Senate findings, hopefully the courts will begin to recognize Backpage’s lies and exploitations.

Starting with Backpage, I hope to see a future where Internet companies realize that, in the United States, women and children are never for sale.

[1] Homeland Security & Government Affairs: Permanent Subcommittee on Investigations, Senate Passes Portman Resolution to Hold Backpage.com in Contempt of Congress, March 17, 2016 at https://www.hsgac.senate.gov/subcommittees/investigations/media/senate-passes-portman-resolution-to-hold-backpagecom-in-contempt-of-congress.

[2] See Footnote 1.

[3] See footnote 1.

[4] Backpage.com’s Knowing Facilitation of Online Sex Trafficking, Homeland Security & Governmental Affairs Permanent Subcommittee on Investigations, January 10, 2017, http://www.hsgac.senate.gov/subcommittees/investigations/hearings/backpagecoms-knowing-facilitation-of-online-sex-trafficking

Savanah Lawrence

Legal Fellow, NCOSE Law Center

Savanah Lawrence joined the NCOSE team as a Legal Fellow from Brigham Young University in March 2016. Savanah has a passion for social justice and is particularly concerned about the issues revolving around the family. Savanah shares NCOSE’s passion for fighting against pornography because she recognizes how pornography destroys the family by weakening marital bonds, and ostracizing children from their parents.

Savanah’s passion for social justice led her to attend law school at the J. Reuben Clark School of Law at Brigham Young University. After her first year of law school, Savanah traveled to Uganda as a summer intern to combat sex crimes against women, promulgated by Uganda’s discriminatory intestacy laws. In her second year, Savanah worked as a family law research assistant for Professor Lynn Wardle, regarding family law issues. She also volunteered at the Provo Family Justice Center, where she helped indigent domestic violence victims.

Prior to law school, Savanah attended Brigham Young University for her undergrad. Savanah has travelled extensively throughout both the United States and the world. She participated in a study abroad in Jerusalem, where she also traveled to Egypt and Jordan. Savanah has traveled to several countries in Europe, and she spent a year and a half in South Korea as a service missionary, where she learned to read and speak the Korean language.

Further Reading