Wednesday, September 7, 2016

OTHERWISE: Backpage.com is Challenged on Two Fronts in Supreme Court | Supreme Court Brief

OTHERWISE: Backpage.com is Challenged on Two Fronts in Supreme Court | Supreme Court Brief

In the span of one week,
Backpage.com, the national online classified ad website, has found itself in
the U.S. Supreme Court both as an applicant—challenging a U.S. Senate
subpoena for business information—and as a target. At the heart of both cases:
sex trafficking.
The two cases—Doe v. Backpage.com and Ferrer
v. Senate Permanent Subcommittee on Investigations
—involve very different
legal questions. But they both carry potentially significant implications for
internet content providers in particular and, more largely, for the digital
economy.
The Doe petition was filed on Aug. 31 by
John Montgomery and Douglas Hallward-Driemeier of Ropes & Gray and asks the
justices to interpret a provision, Section 230, of the Communications Decency
Act of 1996.
Congress attempted through the
Communications Decency Act to regulate access to indecent or obscene content on
the Internet. Section
230 of the act
 says: “[N]o 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 other
words, internet service providers that host content by third-party users are
protected from liability for claims that treat them as traditional publishers.
Montgomery and Hallward-Driemeier
represent three child sex-trafficking victims from the New England area who,
beginning at age 15, were illegally trafficked for sex through Backpage.com,
according to their petition.
To hold Backpage responsible for the
girls' physical and psychological injuries, they sued under the federal
Trafficking Victims Protection Act of 2000 and the Massachusetts
Anti-Trafficking Act of 2010. They alleged Backpage knowingly profited from the
sexual exploitation of children by intentionally creating an online marketplace
to facilitate trafficking.
A trial judge dismissed the suit,
concluding that Section 230 barred the claims under the federal and state laws.
The U.S. Court of Appeals for the First Circuit upheld that ruling in March.
Montgomery and Hallward-Driemeier
argue the First Circuit decision conflicts with decisions of the Ninth Circuit
and a 2015 Washington state Supreme Court decision in a nearly identical case.
"When the Communications Decency
Act was enacted 20 years ago to protect the development of the internet, Congress
surely did not intend to shield serious criminal activity from liability under
statutes enacted subsequently by Congress to protect victims of child sex
trafficking,” Montgomery said. "We are hopeful that the Supreme Court will
correct this erroneous interpretation of the law, and restore the opportunity
of the victims to demonstrate that Backpage.com is liable for aiding and
participating in child sex trafficking.”
The Institute to Address Criminal
Sexual Exploitation at Villanova University Charles Widger School of Law notes in a policy paper: "Many
convicted sex traffickers have advertised their victims as available for sex on
Backpage, some as many as 300 times, resulting in 10-12 transactions
daily."


In early cases interpreting Section
230 of the Communications Decency Act, the paper also notes, courts characterized
Section 230 immunity as “broad” and “robust,” “immunizing interactive computer
services from liability for information that originates with third parties.”
That approach, internet freedom groups argued, was necessary to help foster and
maintain the “diverse, expansive internet we know today.”...

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