An opinion out of the Washington Supreme Court has just come to light regarding a particularly heinous case involving a website and three young women, all minors, claiming to be victims of sex trafficking. The case is still pending, but the crux of the opinion came down to a reading of the Communications Decency Act of 1996, and whether or not a website called Backpage.com was breaking the law. While it might seem clear-cut at first – sex trafficking is illegal, therefore the site was breaking the law – the case is not as clear.
This is what happened: three girls who ran away from home allege that they were trafficked for sex through the website. They also allege that the creators of the site “did more than just provide a forum for illegal content; the plaintiffs allege the defendants helped develop it.” This part of the complaint – that the defendants developed the site, and that “its advertisement posting rules were ‘designed to help pimps develop advertisements that can evade the unwanted attention of law enforcement, while still conveying the illegal message,’” is what the Washington Supreme Court had to render a decision on. If the website was merely hosting content provided by third parties, then they would be immune from prosecution under the CDA. But if they actually created a site that allowed people to break the law, then they could be tried.
The Court denied the defendants’ motion to dismiss, and the case is now proceeding to the next stage.
Understanding the issue of immunity
Under the CDA, an “interactive computer service” is one that “enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.” An ICS cannot be sued under state law because it merely hosts the information; it doesn’t create it. They have a duty to warn you that there may be obscene material (as nebulous a term as that is) but no liability for that material.
An “information content provider,” however, “means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” ICPs are liable for that content, and can be sued.
In this particular case, the plaintiffs claim that “Backpage.com … has intentionally developed its website to require information that allows and encourages … illegal trade to occur through its website, including the illegal trafficking of underage girls,” and that it played a “substantial role in creating the content and context of the advertisements on its website.” If these allegations are true, then Backpage is a content provider, and subject to liability under the law. If the allegations are found to be untrue, then the creators of that website cannot be held liable for any sex trafficking that occurred through the site.
Cases like these can be challenging on multiple levels. That a potential sex trafficker could “get away with it” because of what seems like a legal loophole is abhorrent. On the other hand, the CDA protects millions of people’s rights to access what they wish on the internet, as well as their right to free speech here in the U.S. We would all do well to remember that the cost of that freedom is high.