THE BLOG
09/12/2014 10:02 am ET Updated Nov 12, 2014

Is Backpage.com Liable?

A case making its way through the courts in Washington State holds high stakes for trafficked children who have been waging a steep uphill battle against corporate behemoth Backpage.com for years. Three Washington State girls, seventh and ninth graders, are fighting back against the website that advertised them multiple times a day.

The girls seek damages from Backpage.com -- believed to sell the most online prostitution ads involving children in the country -- for creating an illegal online marketplace and policing it in bad faith. After Backpage.com published their pictures and sales pitches about them, the girls, ages 13 and 15, were repeatedly raped by customers.

Covenant House is joining as a friend of the court in the lawsuit, which represents our best hope for pushing back against the relentless, web-based commercial sexual exploitation of children and youth.

These aren't kids who decided it was more fun to have sex with strangers in a cheap motel than go to middle school. These are children too young to give consent, who are, by federal law, victims of human trafficking, and by state law, victims of statutory rape.

Backpage.com wants the case dismissed, arguing that under the Communications Decency Act (CDA), as an Internet service provider, it is not liable for the content other people post, and is even protected from being taken to court in the first place. The trial court refused to dismiss the case, and Backpage is appealing that decision.

We are in good company in this battle to keep the website from hiding behind the skirts of the CDA, which was written expressly to protect children from the darker crevices of the internet. Together with the National Crime Victim Law Institute, Shared Hope International, and the Human Rights Project for Girls, we submitted an amicus brief in support of the girls' constitutional right to have access to justice.

We are voicing our support for the girls because Congress, when it passed the CDA, "intended to protect ... websites that tried to eliminate unlawful content, not websites whose entire business model is profiting from unlawful conduct," as the girls say in their lawsuit. In our brief, which was endorsed by 47 other groups that oppose sex trafficking of minors, we argue that throwing the case out of court would simply protect a company that facilitates criminal conduct devastating to children -- a protection that Congress surely did not intend.

The National Center for Missing and Exploited Children (NCMEC) also weighed in on the case, submitting a friend-of-the-court brief that is stunning in its depiction of Backpage's corporate behavior. The Center has worked closely with Backpage, which sent it 1,595 ads in the first eight months of 2011 that the website suspected involve children. Backpage touts this effort, saying it "takes extensive efforts to prevent possible sex trafficking ads, including by enforcing its posting rules, using automated filters to block ads," and encouraging readers to flag inappropriate ads.

But the Center's brief describes how Backpage has failed in its policing of the site, and refused to take reasonable steps that would save children from a reality of daily, multiple rapes and exploitation.

Here's how the Center describes it in its brief:

Backpage guides traffickers through the process of developing ads, and prompts users to enter an adult age, rather than a child's age, to create an escort ad. Backpage allows traffickers to pay to advertise children for sex using anonymous payment methods, making it nearly impossible for law enforcement to track the source of payments. For traffickers not savvy enough to think of using anonymous gift cards on their own, Backpage has advised them exactly how to get and use them. Backpage removes sting ads placed by law enforcement for investigating child sex trafficking. Backpage accepts and retains payment not only for ads it believes relate to child sex trafficking, but also for ads repeatedly reported by parents and loved ones of child victims. And Backpage does not remove from public view all active ads that it reports to NCMEC for suspected child sex trafficking.


Here's the part that shook me to the core. NCMEC quotes messages sent to Backpage from family members of trafficked children. Imagine what it's like to type these words:

Please remove this. This is my 16 year old daughter's picture. I e-mailed already. Whoever's posting this please block their card or email from posting.

This ad has photos of my 16 year old sister who is currently being trafficked and we are trying to get home. We have an active investigation going on and am trying to get her away from her pimp and bring her home. Please stop allowing whoever it is to post her. She only a minor and we want her home.

But when those family members hit the "Report Ad" button, here's the response they get from Backpage, according to NCMEC:

If you accidentally reported this ad, do not worry. It takes multiple reports from multiple people for an ad to be removed.

Really? Truly?

NCMEC notes that Backpage has allowed the people who post suspect ads to use the exact same photos, ads, and contact information again.

But when FAIR Girls, a nonprofit anti-trafficking group that has filed a friend of the court brief in this case, submitted an ad in the adult section of Backpage encouraging victims to seek help by calling them at 855-900-3247 (FAIR), Backpage would not let it post the ad there.

Our friends at the Coalition Against Trafficking in Women summed up our concerns clearly in their own amicus brief: "Backpage.com cannot hide behind protestations of being a neutral content provider and avoid its responsibility for the egregious violations of human rights from which it directly profits."

We need the court to come to the same conclusion.