SEATTLE—Reminiscent of action taken against Craigslist, 46 state attorneys general sent a letter Aug. 31 to Village Voice Media’s Backpage.com, accusing it of knowingly profiting from ads promoting illegal prostitution and failing to take steps it promised it would implement to curtail such activity. In the seven-page missive, the AGs also demanded that the site follow through on its promises to implement better safeguards to prevent illegal activity through the site, including the sex trafficking of minors.
It's not the first time AGs have targeted Backpage.com. In September 2010, in the immediate aftermath of Craigslist's capitulation, 20 of them tried to get the site to follow suit and shutter the site or prohibit the sex ads, to no avail.
This time, the letter is not just meant as a passive plea on the part of the AGs, but also as a warning to Backpage.com that if it does not respond to the demands and requests made of it, legal recourse will be sought. However, at least according to one judge, Backpage.com, like other “interactive computer services,” is not liable under the Communications Decency Act for the content of ads posted to its site, even if the site is aware that third parties are posting illegal content.
“We're going to find some laws we can bring to bear here,” promised one attorney general, Washington state's Rob McKenna. He added, “We'd rather that Backpage do the right thing."
In making their case against Backpage.com, the letter writers have been keeping an eye on activity associated with the site, hoping to make a case that shames if it does not frighten Backpage.com into submission.
“We have tracked more than 50 instances, in 22 states over three years, of charges filed against those trafficking or attempting to traffic minors on Backpage.com,” the letter states. “These are only the stories that made it into the news; many more instances likely exist. These cases often involve runaways ensnared by adults seeking to make money by sexually exploiting them. In some cases, minors are pictured in advertisements. In others, adults are pictured but minors are substituted at the “point of sale” in a grossly illegal transaction.”
Meetings between Backpage.com management and state officials are also recounted in the letter.
“In a meeting with the Washington State Attorney General’s office, Backpage.com vice president Carl Ferrer acknowledged that the company identifies more than 400 ‘adult services’ posts every month that may involve minors,” the letter claims. “This figure indicates the extent to which the trafficking of minors occurs on the site—the actual number of minors exploited through Backpage.com may be far greater.”
The letter also claims that, “On a regional basis, there has been no change in postings for prostitution services on Backpage.com,” and that a review of postings to the site conducted between July 28 and August 1 revealed “numerous daily postings for ‘escort’ services in the Adult>Escorts section.”
These investigations are mentioned in order to contrast them with “the company’s representations about its content policies. Backpage.com claims that it ‘is committed to preventing those who are intent on misusing the site for illegal purposes’… However, a cursory look at a relevant section demonstrates that this guideline is not enforced.”
The letter writers then allege even more flagrant awareness on the part of Backpage.com of illegal activity taking place on the site.
“In a meeting with the Washington State Attorney General’s Office, Village Voice Media Board Member Don Moon readily admitted that prostitution advertisements regularly appear on Backpage.com,” the letter alleges. “This shows that the stated representations about the site are in direct conflict with the reality of Backpage’s business model: making money from a service illegal in every state, but for a few counties in Nevada.”
The letter also contains a laundry list of questions the AGs want answered by Backpage.com by Sept. 14. Included among the 21 questions, they want the company to:
* Describe in detail Backpage.com’s understanding of what precisely constitutes activity,” including whether Backpage.com contends that advertisements for prostitution services do not constitute advertisements for “illegal activity”;
* Provide a copy of such policies, including but not limited to the specific criteria determine whether an advertisement may involve illegal activity;
* Provide the list of the prohibited terms for which Backpage.com is screening.
The obvious point of these questions is to back Backpage.com into a corner by forcing it to admit that it is not successfully eradicating illegal activity taking place on the site, but the letter may in fact represent the AGs’ frustration at not being able to hold Backpage.com legally culpable for the activity of third-party posters. One indication of that is the fact that McKenna referred to the letter as a moral appeal to Village Voice, which he sees as hiding behind safe harbor provisions of the Communications Decency Act.
His concern and feeling of helplessness may be warranted. As AVN reported last month, U.S. Magistrate Judge Thomas C. Mummert cited the CDA in dismissing a lawsuit brought against Village Voice Media in September 2010 by an unnamed 15-year-old girl who was a victim of sex trafficking through Backpage.com when she was 14 years old. Mummert found that as an “interactive computer service,” Backpage.com was immune under Section 230 of the Communications Decency Act for content posted to its site by third parties.
AVN reported at the time, “Indeed, in response to the claim that Backpage should not be immune under § 230 because it ‘is aware of prior cases of minors being sexually trafficked on its website and based upon the posted ads and photography, no reasonable person could review the postings in the adult categories and deny prostitution was the object of almost each and every ad,’ the judge noted a 2007 First Circuit finding that it "is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service provider's own speech.
“In other words, even if a service provider knows that third parties are posting illegal content, under § 230, the service provider is under no obligation to intervene, and is in fact immunized from being held legally responsible.”
As stated by Mummert, and as the AGs are no doubt aware, to correct the situation in order to make sites like Backpage.com legally responsive to or responsible for such ads, Congress would need to act by overhauling the CDA.
In the meantime, a growing number of state AGs is playing the moral shaming card with Village Voice Media in the hopes that that company, like the operators of Craigslist.com, either backs off and closes the site or takes a more interventionist tack with advertisers, the latter of which is highly unlikely.
