Washington state joins appeal of case against Backpage.com

Washington Attorney General Bob Ferguson, joined by 20 states, is asking the U.S. Supreme Court to hear the appeal of a case against Backpage.com, which is accused of facilitating child sex trafficking.

Three “Jane Doe” plaintiffs — underage girls who were allegedly marketed for sex through Backpage.com — attempted to sue the website and its operators, only to be turned away by the trial court and the U.S. Court of Appeals for the First Circuit in Boston.

Their lawsuit alleges that Backpage’s conduct violates both federal and Massachusetts laws prohibiting companies from benefiting financially from ventures promoting or facilitating child sex trafficking.

In dismissing the suit, the courts cited a provision of the federal Communications Decency Act (CDA) that provides protection to websites that passively post third-party content without altering it. Using the same provision of the CDA among other arguments, Backpage successfully challenged a Washington state law in 2012 that added new penalties for posting sex ads featuring minors.

Congress passed the Communications Decency Act in 1996 in response to fears about Internet Service Providers becoming liable for defamatory statements made by their online users.

“Backpage.com actively promotes child sex trafficking and must be held accountable,” Ferguson said. “I won’t stand by and let this site profit from promoting this type of sordid and illegal activity.”

In his brief to the Supreme Court, Ferguson argues that Backpage doesn’t simply post material created by others — it participates in developing the ads and creating business practices that conceal traffickers. Therefore it should not be afforded protection under the CDA.

Backpage, Ferguson asserts, encourages the use of language that will attract customers looking to prey on children, encourages payment methods that make transactions untraceable, strips metadata to impair law enforcement’s ability to find victims and even deletes “sting ads” posted by law enforcement.

In addition, rulings from other courts, including the Washington State Supreme Court and the appeals courts for the Seventh, Ninth and Tenth circuits, conflict with the First Circuit’s broad application of Communications Decency Act immunity, Ferguson said.

The filing continues the leadership role of the Washington Attorney General’s Office in combatting human trafficking, including former AG Rob McKenna, both statewide and nationally through the National Association of Attorneys General.

The states that have joined Washington on the brief are Colorado, Hawaii, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Utah and Vermont.

Deputy Solicitor General Anne Egeler is handling this case on behalf of the Attorney General’s Office.