Federal judge: Backpage not liable for ads pimping children

A Massachusetts federal judge has ruled in favor of Backpage.com, a classifieds website accused of hosting ads for pimps who sexually traffic children. The suit, filed in October 2014 on behalf of three women sold for sex as children, claims the site knowingly supports, facilitates, and benefits from child sex trafficking in the United States.

But U.S. District Judge Richard Sterns dismissed the suit last week, ruling the company is free from liability because of an exemption in the Communications Decency Act. Congress passed the Act in 1996 in an effort to fight growing pornographic material online. The judge interpreted a provision in the act to say website hosts are free from liability for user-generated content. Basically, Backpage.com cannot be held liable for pimps who sell children on its site.

“Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in the latter in so far as the internet is concerned,” Sterns wrote in his decision.

Bur critics argue the act was never intended to protect providers like Backpage. Donna Rice Hughes, president and CEO of internet safety group Enough is Enough, was involved in the law’s passage in 1996.

“The intent of Congress was that if an internet provider made a good faith attempt to protect children from getting pornography or being sexually abused, that they would have protection under the law. … Over the years, that provision has basically become a loophole,” Hughes told me.

Three plaintiffs, all women referred to as “Jane Doe,” claim they were victims of child sex trafficking made possibly by Backpage and its “escort” advertisements. The suit asserts the women were part of “stables” moved from city to city after their pimps placed advertisements on Backpage. Jane Doe No. 1 said she was sold for sex at ages 15 and 16 more than 1,000 times in Massachusetts and Rhode Island.

Despite the heinous nature of the alleged crimes against children, Backpage defends its right to host content without being liable for what its users post. The company also claims it continues to fight child exploitation on its site.

“We vigorously dispute those allegations,” Elizabeth McDougall, general counsel for Backpage, told the Boston Globe. McDougall said the site moderates adult adds, blocks email IP addresses linked to illegal activity, and works with law enforcement to find and rescue victims.

But the plaintiffs’ lawyer, John Montgomery, claims in an online statement his investigation shows the website creators “systematically misrepresented” the site to law enforcement and advocacy organizations, claiming to help fight trafficking while simultaneously taking in substantial revenue from the industry.

Sterns acknowledged the tragic plight of the victims in his decision, but claimed Backpage’s practices are not illegal: “Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact.”

Hughes disagrees. She told me 47 of the U.S. attorneys general proposed a minor amendment to the Communications Decency Act in July 2013 because of the way the courts were incorrectly interpreting the exemption. The proposal notes Backpage.com and other sites are avoiding criminal liability, regulation, or civil liability, and asks for Congress to grant criminal jurisdiction to state and local governments. The proposal failed, but Hughes hopes the attorneys general will continue to push for the change.

“This provision has been taken advantage of for far too long and children are paying the price,” she said.

The three female plaintiffs plan to appeal Sterns’ decision.