Backpage.com and the prostitution law that could take down Twitter, YouTube, and Wikipedia

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If you want to pay for sex in the United States — or offer sex services for a fee — and you’d rather not troll derelict city street corners late at night, chances are you’re going to use backpage.com.

 

Of course, Backpage’s adult classifieds are cloaked in the coy poetry of online sex advertising; you’re searching for an “escort” instead of a “prostitute” or a “full body sensual mutual touch” instead of something more crudely sexual. But recent studies from the Advanced Interactive Media Group (AIMG) cut through coyness to offer at least one blunt statistic: About 70 percent of the revenue generated from online sex transactions in the U.S. goes to Backpage. Last year, AIMG figured Backpage generated around $2 million in revenue every month from online sex sales.

 

To put it another way: The Village Voice Media-owned online classified ad service could be seen as the main source for online sex in the U.S.

 

And with Craigslist no longer offering sex services on any of its 700 sites around the world (Craigslist dropped its “adult classifieds” section in 2010), Backpage’s adult market share has nowhere to go but up.

 

 

But there’s a hitch. And that hitch not only threatens to put Backpage out of business. It also threatens to completely change the way websites handle third-party content.

 

While few government agencies seem particularly concerned about the criminal ramifications of adults offering sex with other adults for sale online (prostitution is legal only in some parts of Nevada), at least one high-profile case shined an unflattering light on Backpage for allowing users to traffic children for sex.

 

That high-profile case involved a 15-year-old from St. Louis identified only as “M.A.”

 

With help from attorneys, M.A. brought a civil lawsuit against Backpage in 2010 after M.A.’s pimp, Latasha Jewell McFarland, was sentenced to serve five years in federal prison for soliciting prostitution with a minor and a number of related charges. The details of the civil lawsuit were brutal. According to the complaint, McFarland took pornographic pictures of M.A., posted those on Backpage, paid Backpage to post those images repeatedly and then used those images to transport M.A. “for the purpose of sexual liaisons for money with adult male customers obtained through [Backpage].”

 

The lawsuit requested damages from Backpage; $150,000 “for every violation.” Though the lawsuit wasn’t specific about how many violations were involved, one could easily assume the requested damages were well over $1 million.

 

Yet that civil lawsuit went nowhere. M.A. received no compensation from Backpage.

 

Under Section 230 of the federal Communications Decency Act, internet companies such as Backpage that host third-party content are not held liable if third-party users post “indecent” material. In other words, it’s not Backpage’s job to police; it’s the police’s job to police.

 

So M.A.’s 2010 civil lawsuit was dismissed by a federal judge less than a year after it was filed.

 

In other words, it’s not Backpage’s job to police; it’s the police’s job to police.

 

Activists in Washington State didn’t like that at all. And they were part of a national movement against Backpage.

 

“We are experts in the anti-human trafficking field who for years have been on the front lines working directly with victims, providing clinical and social services, studying and researching trafficking, and developing and advocating for prevention policies,” read a letter to Backpage’s owners last year from the Polaris Project, an anti- human trafficking group. “We stand together asking you to protect women and girls from others’ commercial sexual exploitation and sex trafficking of them by immediately and permanently shutting down the entire Adult section of your subsidiary’s website, Backpage.com.”

 

That letter was indirectly supported by a series of New York Times articles by Nicholas Kristof denouncing Backpage — and also less polite campaigns by groups such as Village Voice Pimps.

 

Though Polaris is based in Washington D.C. and Kristof is in New York, Washington State was the first state to pass legislation against Backpage. This year, amendments to Washington State Senate Bill 6521 — which were supposed to go into law earlier this month — proposed that it would be illegal if someone or some company “knowingly publishes, disseminates, or displays … any advertisement for a commercial sex act, which is to take place in the state of Washington and that includes the depiction of a minor.” Violating the bill would be a Class C felony in Washington State, which would bring a minimum of five years behind bars and $10,000 in fines for each violation.

 

Backpage sued to stop the law.

 

Backpage argued that such a law would mean “that every service provider — no matter where headquartered or operated — must review each and every piece of third-party content posted on or through its service to determine whether it is an ‘implicit’ ad for a commercial sex act in Washington, and whether it includes a depiction of a person, and, if so, must obtain and maintain a record of the person’s ID.” Such obligations “would bring the practice of hosting third-party content to a grinding-halt,” it argued.

 

Backpage is not alone in that argument. The Internet Archive joined Backpage’s argument in a federal challenge filed Friday. And there will likely be others.

 

“Imagine Twitter without real-time posting.”

 

Eric Goldman, an assistant professor at Santa Clara University specializing in internet law (and unaffiliated with Backpage or activists supporting the Washington State law), called the proposed Washington State legislation “dangerous.”

 

It threatens Section 230 of the federal Communications Decency Act — “perhaps the most important internet law ever,” he told me. “It’s hard to imagine sites like YouTube, Flickr, Wikipedia, Yelp, Facebook or Twitter without Section 230,” he said. The Washington State law “sideswipes Section 230 by trying to make websites undertake verification and record-keeping obligations” that would be extremely expensive and nearly impossible in everyday practice.

 

“Imagine Twitter without real-time posting,” he said. If Washington State’s law is allowed to pass, it “will destroy the user-generated content community.”

 

Sex workers aren’t keen on the new law either. Vivian, a 25-year-old sex worker, uses Backpage’s adult services section often and is active with the Sex Workers Outreach Project New York City (SWOP-NYC), a NYC-based movement of sex workers supporting Backpage. She told me that without online adult classified ads, her job would be much riskier and more difficult than it already is. Selling sex offline would force her to rely on shady pimps, she said; it would force her to work on the street and to know almost nothing about the people she’s agreeing to work with. Responding to queries online, she said, allows her to set her own terms with her individual clients, to work in places where she feels comfortable and to conduct at least cursory background searches before she allows someone into her place of business.

 

“I don’t think anyone’s arguing that [child sex trafficking] is an incredibly dire situation and that something needs to be done,” she said. “But I would advocate for solutions that don’t have so many massive unintended consequences.”

 

“I would advocate for solutions that don’t have so many massive unintended consequences.”

 

A judge in Washington State is now mulling that over. The Washington State law is currently stalled in court under a 14-day temporary restraining order set to expire this week. A judge is considering whether to strike down the law, allow portions of the law into effect, or support the law as it’s written. The judge’s decision could set the stage for battles in other states: Tennessee passed its own online sex trafficking law earlier this year and legislators in New York and New Jersey are considering whether to do the same.

 

In the meantime, Goldman said the problem is bigger than Backpage and there needs to be more research about how child sex trafficking occurs and how it can be policed.

 

In an email, he wrote: “We don’t have a good sense about the scope of sex trafficking generally, how the ability to market prostitution online generally exacerbates the problem of sex trafficking (if at all), and to what extent any individual publisher (like Backpage) exacerbates the problem further (if at all).”

 

Without that information, he said, it’s tough to get far.

 

“Instead, the discourse is dominated by platitudes, such as sex trafficking is bad, and sex trafficking of kids is worse; and from these premises, the regulators infer that any policy effort that is designed to suppress sex trafficking is worth doing, irrespective of its efficacy and collateral consequences,” he said. “We have to get past these platitudes and the unsupported inferences drawn from them.”

 

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