Innovations – A new case against Backpage

Although Backpage was a social media platform for prostitution and child trafficking, it has enjoyed full protection from suit under Federal law.  Yes, an electronic pimping platform has been repeatedly held to be immune from profiting from crime under section 230 of the Communications Decency Act.    Annie McAdams, a Houston attorney, is leading the most recent attempt at piercing through the language of the law that has legally protected Backpage.

Annie has a steep uphill legal battle and may face an injunction and have to pay attorneys fees, but she feels it is worth it and that her case is different.   Read her allegations here:  2018-1-23 Pltf Orig Pet.

McAdams-ZH1U4729-Email-Size[1]Annie’s  positive attitude in the face of all of the resistance she will face alone as a sole practitioner is an example of great courage.  And that is what it takes to change things.

Her supporters are behind this suit 100%, but the law is not.  I have been in her shoes.

I know how hard it will be to have 100 bespoke suited corporate lawyers overwhelm with motions, demands, and threats.

Good on you Annie.  I support you.

The law reads:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity:

  1. The defendant must be a “provider or user” of an “interactive computer service.”
  2. The cause of action asserted by the plaintiff must treat the defendant as the “publisher or speaker” of the harmful information at issue.
  3. The information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.

Every single legal attempt to hold Backpage liable for damages has failed:

  • Doe v. America Online, 783 So. 2d 1010, 1013-1017 (Fl. 2001),1cert. denied, 122 S.Ct. 208 (2000)

The court upheld immunity against state claims of negligence based on “chat room marketing” of obscene photographs of minor by a third party.

  • Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 692 (2001).2

The California Court of Appeal upheld the immunity of a city from claims of waste of public funds, nuisance, premises liability, and denial of substantive due process. The plaintiff’s child downloaded pornography from a public library’s computers which did not restrict access to minors. The court found the library was not responsible for the content of the internet and explicitly found that section 230(c)(1) immunity covers governmental entities and taxpayer causes of action.

The court upheld immunity for a social networking site from negligence and gross negligence liability for failing to institute safety measures to protect minors and failure to institute policies relating to age verification. The Does’ daughter had lied about her age and communicated over MySpace with a man who later sexually assaulted her. In the court’s view, the Does’ allegations, were “merely another way of claiming that MySpace was liable for publishing the communications.”

The court upheld immunity for Craigslist against a county sheriff’s claims that its “erotic services” section constituted a public nuisance because it caused or induced prostitution.

  • Backpage.com v. McKenna, et al., CASE NO. C12-954-RSM5
  • Backpage.com LLC v Cooper, Case #: 12-cv-00654[SS1]6
  • Backpage.com LLC v Hoffman et al., Civil Action No. 13-cv-03952 (DMC) (JAD)7

The court upheld immunity for Backpage in contesting a state of Washington law (SB6251)8 that would have made providers of third-party content online liable for any crimes related to a minor in Washington State.9 The states of Tennessee and New Jersey later passed similar legislation. Backpage argued that the laws violated Section 230, the Commerce Clause of the United States Constitution, and the First and Fifth Amendments.10 In all three cases the courts granted Backpage permanent injunctive relief and awarded them attorney’s fees.1112131415

The court ruled in favor of Backpage after Sheriff Tom Dart of Cook County IL, a frequent critic of Backpage and its adult postings section, sent a letter on his official stationary to Visa and MasterCard demanding that these firms “immediately cease and desist…” allowing the use of their credit cards to purchase ads on Backpage. Within two days both companies withdrew their services from Backpage.17 Backpage filed a lawsuit asking for a temporary restraining order and preliminary injunction against Dart granting Backpage relief and return to the status quo prior to Dart sending the letter. Backpage alleged that Dart’s actions were unconstitutional violating the First and Fourteenth amendments to the US Constitution as well as Section 230 of the CDA. Backpage asked for Dart to retract his “cease and desist” letters.18 After initially being denied the injunctive relief by a lower court,1920 the Seventh Circuit U.S. Court of Appeals reversed that decision and directed that a permanent injunction be issued enjoining Dart and his office from taking any actions “…to coerce or threaten credit card companies…with sanctions intended to ban credit card or other financial services from being provided to Backpage.com.”21 The court cited section 230 as part of its decision.

And Dart, as a government employee is now exposed for civil liability for attempting to suppress protected speech.

The idea in these lawsuits, and Annie’s case is to argue that Backpage has been actively involved in creating or editing the pimping posts as opposed to simply providing an internet platform for expression.  She has made allegations to meet this burden:

Internal company documents clearly demonstrate that Backpage has long maintained a practice of altering ads before publication by deleting words, phrases, and images indicative of child sex trafficking and sex trafficking, as well as “educating” users how to make illegal ads for prostitution appear as legal ads for escorts. For example, on July 28, 2011, Backpage co-founder, James Larkin, cautioned Backpage CEO, Carl Ferrer, against publicizing The Backpage Defendants moderation practices, explaining that “we need to stay away from the very idea of editing the posts, as you know.” Backpage had good reason to conceal its editing practices: Those practices served to sanitize the content of innumerable advertisements for illegal transactions, including those prostituting out and trafficking Jane Doe #1—even as The Backpage Defendants
represented to the public and the courts that it merely hosted content others had created.

When a user submitted an adult ad containing one of the above forbidden words, The Backpage Defendants Strip Term from Ad Filter would immediately delete the discrete word and the remainder of the ad would be published after moderator review. Of course, the Strip Term from Ad Filter changed nothing about the real age of the person being sold for sex or the real nature of the advertised transaction, nor was this The Backpage Defendants’ goal. By July 2010, the Backpage Defendants were praising moderation staff for their editing efforts. Ferrer circulated an agenda for a July 2010 meeting of The Backpage Defendants’ Phoenix staff and applauded moderators for their work on “adult content” and encouraging Backpage staff to keep up the good work. Ferrer elaborated in an August 210 email that Backpage currently had a staff of 20 moderators working 24/7 to remove any sex act pics and other code words for sex for money.

And so, you ask, how can this law remain on the books if it protects criminals and traffickers?    Because this applies to all interactive computer providers:  Google, Facebook, all of them.  And none of them want to incur liability for crime and posts made by their users.

All efforts in Congress to change the law have failed.

But that does not mean that all of the providers have not done anything.  Google is on the cutting edge of  Innovations.  But more needs to be done.  And just maybe Annie will be the one.

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