Supreme Court: Backpage must obey Senate subpoena
Human Trafficking | Unanimous justices rule online classified website cannot keep sex trafficking ad screening process secret
by Gaye Clark
Posted 9/14/16, 12:03 pm
The U.S. Supreme Court on Tuesday ruled the online classified website Backpage must comply with a Senate subpoena to produce information about how it screens ads for sex trafficking. Without comment, the court voted 7-0 against overturning a lower court decision. Justice Samuel Alito recused himself from the case because his son works as a staff counsel for Sen. Rob Portman, R-Ohio, who chairs the Senate committee that issued the subpoena.
Backpage CEO Carl Ferrer insists the requested documents are “constitutionally protected information that no governmental need could possibly overcome.”
The lower court ruling upheld by the high court found his argument “untenable and without legal support.”
In previous court battles, Backpage cited in defense a small section of the Communications Decency Act (CDA), which says online intermediaries that host or republish speech aren’t responsible for what their customers say and do. But one of two additional cases pending before the Supreme Court take aim at that law.
In October 2014, three teenage sex trafficking victims filed a lawsuit against Backpage in Massachusetts, claiming the company created an online marketplace that intentionally facilitates sex trafficking in violation of federal and state law. These statutes allow child victims to sue their traffickers as well as those who knowingly profit from participation in trafficking, like Backpage. The lower courts dismissed the lawsuit, concluding immunity under the CDA was so broad that it applied even if Backpage itself is engaged in criminal conduct.
The teens’ lawyers are asking the Supreme Court to limit the CDA to website operators that serve as passive conduits for internet content, noting several other courts have rejected the expansive interpretation of the CDA. Outside of the 1st U.S. Circuit Court of Appeals, no court has extended the immunity to a website, like Backpage, that is allegedly engaged in criminal activity.
The Supreme Court appeal maintains expansion of immunity under the CDA by lower courts has serious implications for the internet, where criminal activity is increasing. The teens’ lawyers argue Congress did not intend to provide criminals with incentives to use the internet for illegal activity.
Backpage insists it does not engage in anything illegal, and in fact, polices sex trafficking.
“We are trying to be the sheriff,” Backpage lawyer Liz McDougall told CNN.
McDougall said prostitution is illegal and ads for it are not permitted on Backpage. She claimed the sex ads placed on the site advertise “legal adult entertainment services.” CNN reporter Deborah Feyerick confronted her with an ad allegedly posted by a 19-year-old: “Make me beg. Smack me. Spit on me. Degrade me.”
“If that’s online, that’s a mistake. … That should never be permitted,” McDougall said.
But several agencies insist such ads are more the norm for Backpage than the exception. According to the National Center for Missing and Exploited Children, 71 percent of all reports of suspected child sex trafficking have a link to Backpage.
“Instead of working with us to help protect the innocent victims of sex trafficking all across the United States, Backpage has instead fought our efforts at every step of the way while the problem of online sex trafficking gets worse, not better,” Portman said.
Gaye is a graduate of the World Journalism Institute mid-career course.