Posted By: Rylan Steward
Law makers recently passed the Fight Online Sex Trafficking Act of 2017 (“FOSTA”). This bill is aimed directly at Backpage.com in what many internet freedom activists are calling a kneejerk reaction and a politically motivated act. Nevertheless, President Trump signed FOSTA into law April 11 of this year in an effort to curb online sex trafficking. FOSTA garnered support from both Republicans and Democrats as is sailed through both the House of Representatives and Senate. While many see the passage of FOSTA as a victory, others are concerned about the implications of holding internet companies liable for user generated content found on their platform.
Balancing our constitutional rights with the desire to live in a safer more secure society has always been a difficult line to walk. The reason this creates a difficult line to walk being that the goal of achieving security often requires the diminishing of certain rights. With new and emerging technology often comes a need for increased security. This is an issue law makers are constantly dealing with. Specifically, law makers are currently battling where to draw the line in how much protection websites should be entitled to as it pertains to user generated content. This battle comes as attention has been brought to the classified ad website Backpage.com.com, LLC (“Backpage.com”).
Online service providers have long enjoyed the luxury of having broad protections from liability for user generated content posted on their platform. These protections stem from the Communications Decency Act. Specifically, the act provides that a provider of an interactive computer service shall not be treated as the publisher or speaker of any information provided by another information content provider. This provision allows an online service provider such as Backpage.com to essentially wash their hands of liability from most of the content on their website so long as it is posted by a third party. This lack of accountability has become an increasingly contentious issue as platforms begin to reach more and more of the population.
The Communications Decency Act was originally created with the idea that in order for the internet and technology to progress, providers of online services needed this protection in order to allow information to flow and become available at the rapid speeds we are now able to obtain information over the internet. The Communications Decency Act not only offers protections from federal law, it specifically precludes any state from creating a law or imposing liability.
This issue has been thrust into the political spotlight as of late with discussions surrounding sex trafficking on Backpage.com and in the ability of law enforcement agencies to shut down the site or bring the founders and operators to justice. This discussion will begin by briefly outlining the story of Backpage.com and then looking at recently enacted legislation aimed at stifling online sex trafficking and analyzing how the broadening of this legislation could affect other websites featuring user posted content by further eroding the protection of the Communications Decency Act.
I. THE BACKPAGE.COM SAGA
Backpage.com was, until a recent takeover by the FBI, a classified ads page where users could post just about anything for sale and other users in the area would be able to meet the seller and purchase whatever was offered. The FBI recently seized Backpage.com.com and the URL now leads users to a banner stating that the FBI and other agencies have taken control of the website.
Unfortunately, the plethora of goods and services that were offered for sale were not all legal in nature. This included use of the website to post classified ads used to promote sex trafficking, oftentimes of underage girls. These ads would be posted with certain code words that would signal to users looking to engage in underage sex trafficking, that certain ads were in fact for underage girls. Backpage.com reportedly placed filters on their site that would block some of the known key words and other language but it had little effect on reducing the sex trafficking activities taking place on the website. In fact, the California Department of Justice reported that from January 2013 through March 2015, 99% of Backpage.com’s gross revenue was derived from their “adult ads” section. This figure dropped to 90% only after certain credit card companies took the fight against sex trafficking into their own hands and began denying to process Backpage.com payments.
Even with the knowledge of these facts, the state of California was unable to hold Backpage.com and its owners liable under a California law against prostitution. California Penal Code section 266h makes it a felony to either solicit on behalf of a prostitute, or derive any income from the earnings of a prostitute. Backpage.com and their facilitation of prostitution would seem to fit squarely into this statute, especially considering the statute makes it illegal to derive ANY [emphasis added] income from the earnings of a prostitute, let alone 90%-99% of the site’s gross revenue from year to year.
In December 2016 a court granted a motion to dismiss the charges against Backpage.com’s CEO and co-founders. This not only allowed the defendants to walk away without personal liability, it allowed Backpage.com to continue operating the site, including the classified ads for sex trafficking. The state of California was not the only party who attempted to place liability on Backpage.com for their role in sex trafficking.
Several victims of sex trafficking and families of victims that were killed as a result of sex trafficking, have attempted to bring lawsuits against Backpage.com and hold them civilly liable for their role in facilitating prostitution after their pimps had used Backpage.com as a tool in forcing these women and children into prostitution. Though this may sound strange, it is not completely unusual for a defendant to not be found criminally liable for an action but to be held civilly liable for the same action. This is due to the difference in the standard of proof a plaintiff is required to prove in order to find a defendant liable in a criminal case compared to a civil case. The “beyond a reasonable doubt” standard for criminal cases is a much higher bar than the “preponderance of the evidence” standard necessary to prove liability in a civil case. Even still, Backpage.com was able to beat the “preponderance of the evidence” standard and escape liability from the civil lawsuits. So with all the evidence against Backpage.com how were they able to escape liabilities for their actions? The answer lies within the hands off policy the United States has taken when it comes to internet companies and user generated content. The United States has maintained a desire to remove as many barriers as possible for information contained on the internet.
This is where the Communications Decency Act comes into play. The Communications Decency Act provided an affirmative defense for Backpage.com against both criminal and civil actions brought against the website. Backpage.com never posted the sex trafficking ads found on their website themselves. The ads were posted to their website by users, namely the sex trafficking victim’s pimps. As discussed before, since Backpage.com is a provider of an interactive computer service, they cannot be held liable for the sex trafficking ads posted to their website by these users.
II. FIGHT AGAINST ONLINE SEX TRAFFICKING ACT OF 2017
The frustration of having an internet company like Backpage.com openly facilitating child sex trafficking and not having the power of the law to stifle this conduct and bring the people responsible to justice has finally boiled over. With the passage of FOSTA, Congress has amended the Communications Act of 1934, specifically the Communications Decency Act portion, to create an exception to the Communications Decency provisions. Specifically, FOSTA makes clear that the Communication Decency Provisions cannot be used to shelter companies from criminal or civil actions relating to content involving sex trafficking. FOSTA further provides more stringent legal recourse for violators. The new recourse includes fines and up to 25 years in prison for people who promote or facilitate the prostitution of five or more people or who contribute to sex trafficking through reckless disregard. FOSTA also repeals the expressed preclusion of 47 U.S.C. §230(e)(3) that disallows states from imposing liability on internet companies for user generated content, as it pertains to sex trafficking. This will allow states and local governments to have their hands untied and not wait for the federal government to act in shutting down and prosecuting internet companies who engage in this behavior.
While all morally sound people can agree that sex trafficking, especially of children, is not something that we desire as a society, FOSTA does not come without opposition and skepticism. FOSTA sailed almost effortlessly through the House of Representatives and the Senate and was quickly signed by President Trump. Understandably so, nobody wants to be the one to openly and vigorously oppose a bill aimed at stopping the sex trafficking of children. However, the haste in which FOSTA was passed raises concerns for free internet advocates because the possible long term implications it can have on other types of user generated content.
Presumably, these activists do not endorse child sex trafficking, but the idea is that there are broader implications at stake if there is a precedent set that which can hold internet companies liable for user generated content. It is generally accepted that the protection from liability that internet companies receive, in regards to user generated content, is one of the big reasons the internet is the amazing resource that it has become. I mean just imagine if Google or Facebook were held liable for every piece of content that was posted by users on their platform. I would safely argue that the companies would cease to exists, or at least in the capacities and sizes they do today.
I will conclude by stating that I believe the freedom of internet advocates fears of a slippery slope are unfounded. While FOSTA was hastily passed, it was necessary after Backpage.com exposed just how technology can out-pace the law and create loopholes for illegal activity. The Communications Decency Act will always have an important role that needs to be left intact. However, FOSTA is hardly the first act that pulls back protection for specific kinds user generated content. The DMCA holds internet companies liable for copyrighted materials on their platform so long as they have knowledge of the content and its infringing nature.