Backpage’s sex-trafficking case raises legal stakes
Silicon Valley companies argue laws would restrict a free and open internet
After a sustained assault from politicians, investigators and victims groups, the website Backpage.com agreed early this year to shut down its lucrative adult page, which had become a well-known sex-trafficking hub.
It wasn’t long before the company had new problems.
The adult section was gone, but the sex traffic was not. In May, authorities in Stockton, Calif., charged 23 people with involvement in a trafficking ring that was using another corner of Backpage to market sex with girls as young as 14. A Chicago teenager allegedly trafficked on Backpage had her throat slit in June.
The resilience of this platform — host to an estimated 70 per cent of online sex trafficking at its peak — is a long-running public relations mess for the tech industry. Internet freedom laws held sacred in Silicon Valley have helped shield Backpage from prosecution and lawsuits by victims of sex trafficking.
Now, the tech industry’s Backpage problem has evolved into a fullblown political crisis. An unexpectedly large coalition of U.S. politicians is aiming to hold sites such as Back- page liable for trafficking, sparking panic in Silicon Valley over the farreaching consequences for the broader internet.
The noisy political battle is forging unusual alliances in Washington. And caught in the middle are some of the most influential lawmakers in California.
They find themselves struggling to reconcile a sex trafficking scourge that has hit their state hard with a remedy that Silicon Valley says would be a disaster for a free and open internet.
Trade groups representing Google, Facebook and other internet giants warn of a “devastating impact” on the tech industry if the1996 Communications Decency Act is tinkered with in the way some elected officials envision to hold Backpage and others liable for criminal material on their pages.
They project “mass removals of legitimate content” by social media and other firms scrambling to shield themselves from a deluge of legal action by trial lawyers and prosecutors. The American Civil Liberties Union joined the Electronic Frontier Foundation and other groups in warning politicians that if they pass the law, every one of the millions of social media postings placed online daily becomes a potential liability for the company hosting it. But much of Congress is unimpressed by the predictions of calamity.
The lawmakers have grown impatient with Silicon Valley’s limited success at self-policing, and its flatout refusal to consider modifications to its cherished immunity from the illegal behaviour of posters, as enshrined by the two-decade-old act.
Judges keep returning to that immunity in dismissing claims against Backpage, sometimes in the face of what they acknowledge may be compelling evidence that the firm condoned trafficking. “The Communications Decency Act is a well-intentioned law, but it was never intended to protect sex traffickers,” Sen. Rob Portman said.
More than a quarter of lawmakers in Congress have already signed on as sponsors of bill Portman is taking a lead on that would change the act, or to a similar measure in the House. It is a formidable show of bipartisan support that is jolting tech companies. The momentum grew in August, when a Sacramento judge threw out state criminal pimping charges against Backpage, citing the immunity from such prosecution the company receives under the act.
California prosecutors had built much of their case around allegations that Backpage helped traffickers and pimps edit their ads to evade law enforcement.
“Until Congress sees fit to amend the immunity law, the broad reach . . . of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking,” wrote Superior Court Judge Lawrence Brown.
The judge is allowing prosecutors to proceed with money-laundering charges against Backpage, which is accused of illegally using shell companies to trick credit card companies refusing to do business with Backpage into processing the payments of its customers.
The company denied helping to craft any of the sex trafficking ads on its site. It is fighting the money-laundering charges. Company officials declined to comment on the congressional effort it has inspired, referring questions instead to the opposition campaign mounted by the Electronic Frontier Foundation and the Center for Democracy and Technology — groups that receive substantial funding from big technology companies.
Almost every attorney general in the United States wants the decency act changed to strip legal immunity for sites that condone or promote trafficking. Fifty of them wrote a letter to Congress a few weeks ago citing several horrific cases in which Backpage was used to traffic teenage girls.
They warned the act has “resulted in companies like Backpage.com remaining outside the reach of state and local law enforcement in these kinds of cases.”
California Attorney General Xavier Becerra said the site would have been shut down long ago if not for the immunity. “We would have been able to stop the abuse and, in some cases, the death of some of these young people who got caught up in these sex trafficking rings,” Becerra said.
Missing from the long list of sponsors of Portman’s bill is Sen. Kamala Harris, who aggressively went after Backpage when she was the California’s attorney general, and in 2013 joined colleagues in other states in signing a letter with the same demand state attorneys general sent Congress this week.
The hesitance of Harris and Sen. Dianne Feinstein, California’s senior senator, to sign on reflects how cautiously lawmakers close to Silicon Valley are treading.
The indictment Harris filed against Backpage last year was a memorable career moment, with a three-year investigation leading to the arrest of the company chief executive as he returned from a trip abroad, and a raid on corporate headquarters in Dallas.
But stripping immunity under internet law from companies like Backpage is complicated business that could have unexpected fallout. Harris still wants the decency act changed, but appears unpersuaded that the Portman plan is targeted enough.