PHOENIX – Often lost in the debate surrounding the Fight Online Sex Trafficking Act (“FOSTA”) and Stop Enabling Sex Traffickers Act (“SESTA”) is a question which seems like it should have been central to the conversation: Is a change in law really needed for prosecutors to target websites allegedly engaged in human trafficking and sex trafficking?
If the seizure of Backpage.com and related, 93-count criminal indictment entered against the site and its founder Michael Lacey are any indication, federal prosecutors and law enforcement clearly believe the answer to the above question is no. (It also has been reported that the FBI conducted a raid at the Sedona, Arizona home of Jim Larkin, another Backpage co-founder, but it is not clear at this time whether Larkin is also named in the indictment.)
After all, although it has been passed by Congress, SESTA has not yet been signed by President Donald Trump, meaning it is not yet the law – and it certainly wasn’t the law while a federal grand jury was considering the evidence presented to it by prosecutors, a process which likely began some time ago, while the Senate was still debating and amending the legislation.
Largely ignored during the debate of FOSTA and SESTA were some salient remarks from Senator Ron Wyden (D-OR), who was one of only two Senators to vote against SESTA, the other being Sen. Rand Paul (R-KY).
In comments he delivered just before the Senate voted to pass SESTA, Wyden underlined the importance of Section 230 immunity, a statutory safe harbor he helped to draft, and argued that the problem in combatting online sex trafficking and human trafficking was not the safe harbor, but a lack of self-regulation and cooperation from internet companies, along with a lack of action on the part of federal law enforcement and regulatory agencies.
“(I)t’s not just the internet companies who have failed to properly respond to these challenges in the internet era,” Wyden said. “When it comes to sex trafficking, which is the underlying issue the Senate is working to address today, our country has failed victims at almost every level.”
As Wyden sees it, the U.S. Dept. of Justice “fell down on the job.”
“Backpage’s activities were no secret, so in the absence of action by DOJ, a Senate subcommittee, led by Senators Portman and McCaskill, conducted its own investigation and subpoenaed key documents,” Wyden added. “Among those documents were emails that appeared to show that Backpage was actively working with sex traffickers to create advertisements. That meant Backpage was not due protection by Section 230. In fact, a lawsuit in Boston was given the go-ahead based on that exact finding. And it has been widely reported that the Justice Department now has its own investigation underway, although it’s coming far too late. This should have happened years ago, and it is only one example of where the government’s efforts have fallen short.”
Arguably, the most important aspect of Wyden’s remarks was the simple observation that given evidence Backpage was actively involved in authoring ads, the site could not rely on Section 230 immunity to indemnify itself against criminal or civil liability – something which tends to be overlooked by those who support SESTA, who often make it sound as though Section 230 immunity makes it impossible to prosecute or sue website like Backpage.
“Backpage has gotten away with (sex trafficking,” Sen. Rob Portman (R-OH) said on March 20, the day before the Senate voted to pass SESTA. It’s not because people haven’t tried to sue them, prosecutors haven’t tried to go after them, it’s because the courts have consistently said that they are shielded from prosecution. They are shielded from these lawsuits. They’re shielded by a federal law, one we passed in this chamber 21 years ago. It’s called the Communications Decency Act.”
While courts have indeed ruled that Backpage was protected by Section 230 immunity in the cases Portman referenced in his comments, the issue wasn’t so much the safe harbor as the strength of the evidence entered against Backpage. In those cases, the court found the prosecutors/plaintiffs hadn’t demonstrated that the website had sufficient knowledge and control over the content of its ads to establish that Backpage should not be eligible for the protection of Section 230.
For example, in the case M.A. v. Village Voice Media, one of the civil lawsuits brought against Backpage by a minor plaintiff who sought to hold the site civilly liable for the undeniably awful treatment she was subjected to as a sex trafficking victim (trafficking offenses to which a woman named Latasha Jewell McFarland pleaded guilty in a separate criminal trial).
“In the instant case, there is no allegation that Backpage was responsible for the development of any portion of the content of McFarland’s posted ads or specifically encouraged the development of the offensive nature of that content,” U.S. Magistrate Judge Thomas C. Mummert wrote in his decision in the case.
In the case above and others brought against Backpage, courts have ruled consistently that general knowledge some of the ads (or even many of the ads) in the site’s adult personal sections involved sex trafficking is not sufficient to establish that Backpage is involved directly in sex trafficking, nor in “aiding and abetting” sex trafficking, because aiding and abetting requires a showing that the defendant acted with specific intent to aid in the commission of the crime.
While the current indictment against Backpage is currently under seal, so it’s not clear what sort of evidence investigators have developed against the site, it’s reasonable to assume the prosecutors involved believe this time they have enough evidence to overcome the broad immunity offered by Section 230.
It’s also safe to assume the prosecutors do not plan to rely on SESTA in bringing this case, or else they would have delayed execution of the site’s seizure and related raids until the statute was in effect and enforceable – and it’s not yet clear when that will be the case.
While SESTA is also designed to make it easier for human trafficking victims to sue sites like Backpage, if a plaintiff can show a site is knowingly and willfully involved in human trafficking, or knowingly facilitating such, Section 230 wouldn’t apply to those sites in the first place.
Given these facts, it’s reasonable to ask again: Is a change in law really needed for prosecutors to target websites allegedly engaged in human trafficking and sex trafficking?
Regardless of the answer, once President Trump signs SESTA – assuming he does so – a change in law is what we’ll get, whether it’s needed or not.