back to article Backpage child sex trafficking lawsuit nixed thanks to 'internet freedoms'

A judge has dismissed a lawsuit brought against a classified ads site used by pimps to facilitate underage prostitution, arguing that the “internet freedom” of website operators trumped the rights of three girls who were trafficked and raped. The girls argued that Backpage, a US classified advertising website jointly owned by …

  1. Naughtyhorse

    I'm all for freedom, and usually have a good chuckle when politicians wade in on the subject of teh intertubes trying to emphasise the bigness of their dicks, and generally fucking it up.

    but this is pretty fucking outrageous.

    Seems pretty clear that the operator is engaged in the business.

    1. dan1980

      @Naughtyhorse

      "Seems pretty clear . . ."

      Eh? Not to me it doesn't. To me it looks far more like a site that simply had poorly implemented - or forgiving controls.

      The idea that allowing "immediate re-submission of the ad with the age changed", if originally entered as under 18 somehow implies the site was in on the act flies is about as far as one can stretch a bow.

      I frequently enter details wrong in submission boxes and then correct them - either because I am rushed or busy with something else or simply have fat fingers and don't catch it. This policy - of allowing someone to resubmit - is likely applied to all the fields, which is what I mean by the control mechanisms being 'forgiving' - i.e. forgiving of genuine mistakes.

      If there is compelling evidence that the site "encourage[d] the trade" then they lose the protections.

      Here is the deal:

      Sites like this are given 'safe harbour' protections so long as they are neutral as to the content stored/published and take reasonable measures to prevent illicit content. What measures are reasonable depend on the type of service it provides, of course.

      If illegal activity is conducted over your network or illegal content stored on your service, then, while the perpetrator is liable, the service provider is not.

      The case here is to try and paint the service provider as complicit in these activities and thus liable. there is no question over whether the 'pimps' are liable, only whether the site is also to blame.

      While what has happened is undoubtedly horrendous, this case is not about catching those really responsible, but about trying to pull the website in as well.

      It's at these times - when heinous acts have been committed - that it is so very tempting to pull out all the stops and remove protections like this. PATRIOT act anyone? Australia's Metadata retention scheme? All the surveillance regimes in the UK and France?

      While watering down (or removing) protections at times like this seems like such a good idea, those protections don't magically come back when it's a less severe case - they're gone for good.

      At some point, we have to say that freedoms and rights and protections carry the risk of guilty people getting away with crimes and we have to accept that. The whole bloody justice system is geared that way for god's sake!! Innocent until (unless) proven guilty. The right to silence (at least in the US). Proof beyond reasonable doubt. Reasonable suspicion. Probably cause.

      We know that these conventions and laws result in criminals walking free, or crimes being committed that could have been otherwise prevented.

      It's tragic, but those conventions and rights and freedoms protect all of us; you don't get to say that only innocent people should have the right to these protections and the right to a 'fair trial' because those things are how we find out whether people are innocent.

      That was a rant, sorry.

      1. John Robson Silver badge

        Failing to respond from complaints about this sort of ad on your network because the complainant isn't (by your own twisted GeoIP) in the same small geographic region is "failing to take reasonable measures"

  2. TheFinn

    Hello? Anonymous?

    ...might be time to don your spandex pants in the name of justice, once again.

  3. codejunky Silver badge

    Eh?

    Am I reading this right? Is the complaint that a site used to facilitate the ads should be prosecuted because although it attempts to filter and block illegal activity, the pimps got around the protections and managed to place ads anyway?

    So then the whole justice department should be hauled in because there are criminals? I am not convinced I am reading this article correctly.

    Hope the pimps were caught and dealt with.

  4. Fibbles

    The crimes against these girls were horrific and I really do sympathize with their need to bring all those involved to justice. However, it really does seem to me that Backpage was merely badly implemented rather than complicit in the actions of the pimps.

    1. JP19

      "to bring all those involved to justice"

      Lol - this is America where the amount of money you have (to be sued for) is much more important than your amount of guilt.

    2. Donn Bly

      badly implemented

      It isn't even so much as a bad implementation. They filtered against known keywords, asked for age and rejected anything underage, and responded to individual complaints when they were raised. Additionally they protected user privacy (and their bandwidth) by re-sampling and compressing any images uploaded.

      According to these girls and their lawyer (and presumably Mr. Orlowski) if I want to sell a "tiny rose vase" those keywords should flag it as sex traffic. I disagree.

      Yes, they have a section for "escorts", but the purpose of the site isn't to facilitate the sex trade - the section is there so that the pimps don't put the ad under miscellaneous, yard sales, or any other "family friendly" section and turn those sections into something seedy.

      They don't charge for ads and don't put advertising on the pages, so it isn't like they are making any money on the escort pages.

      If anything, those ads assist law enforcement by providing a starting point for them to identify and prosecute the criminals.

      1. Anonymous Coward
        Anonymous Coward

        Re: badly implemented

        Yes, most of it looks like simple laziness--or perhaps sufficiently disguised malice--but two points do stand out of all that.

        1. "When an advertiser entered their age as being under 18, Backpage would reject the advert – but allowed the immediate re-submission of the ad with the age changed." If Backpage was at all interested in actually addressing the problem, these ads and the submitting accounts should have been flagged for review or forwarded to the FBI as evidence.

        2. Even more damning is "Backpage also failed to take down advertisements after complaints in across its network – it only responded to the complaint in the complainer’s geographical area." This shows that Backpage was clearly capable of removing illegal ads when prompted, but did not fully comply by leaving them accessible for other areas. Since US law is being applied to the company itself, it shouldn't even matter if those geographical areas are outside of US jurisdiction, since the company itself is subject to US law.

        The goal of the safe harbor law was to make it so that service providers would not be liable for the actions of their customers, so long as they made adequate provisions to stop illegal behavior once it became known to the service provider. This makes it sound like the company did have some knowledge of the actions of certain customers, but didn't make any real effort to remove the infringing content.

      2. Androgynous Cupboard Silver badge

        Re: badly implemented

        If this were in the UK the site operator would be obliged, once notified, to remove the offending material and attempt to enforce that it doesn't come back - been there. It was annoying at the time, but I'm not sure it's an unreasonable obligation all up.

        Of course though in the US, rules are different - all hail the free market. But to my eyes the common carrier defence used by phone companies isn't really a neat fit when applied to a website which is already a) filtering on terms, this showing it can be done, and b) has been notified that some postings are in breach. No doubt the owners benefited from the advertising on the material that their lazy and/or incompetent asses allowed through.

    3. Naughtyhorse

      Orly?

      so stripping the exif data from images was.... accidental?

      1. Old Handle

        Re: Orly?

        It may have been. If they downsized images for bandwidth / formatting reasons the exif would likely get stripped out as a side effect. Or it may have been that they thought protecting their users' privacy was a good thing.

  5. This post has been deleted by a moderator

    1. Anonymous Coward
      Anonymous Coward

      Re: Love that last paragraph

      That's why we have editorial discretion - to prevent inappropriate content from being disseminated by hateful, vulgar, depraved animals. Free speech does not cover all speech. There are legitimate restrictions, though few. Good judgment and responsible behavior should be mandated.

      It's outrageous to think ANY entity would NOT be held responsible for publishing the information in this lawsuit. It's no surprise at all the EFF would support the abuse of people under the guise of free speech. Apparently some folks do not understand that ALL speech is not free and that this is a perfect example of where an entity is liable for their negligence in allowing these ads by crims for illegal behavior to be posted. There are responsibilities associated with mass publication and these folks clearly are negligent in allowing these ads to be published.

      1. vgrig_us

        Re: Love that last paragraph

        "Apparently some folks do not understand that ALL speech is not free"

        1. and you don't seem to understand that this is not even about free speech.

        2. "editorial discretion" is not a legal concept - you cannot legally punish a publisher for not exercising it.

        3. almost ALL speech is free speech - including hate speech. fascism, racial hate - it's all covered.

        4. you seem to confuse law and morals as well.

      2. Daggerchild Silver badge

        Re: Love that last paragraph

        So what you're saying is, ban Twitter for its libelous content, and Ebay for its counterfeit products. Wikipedia for factual inaccuracy?

        Are you expecting premoderation, compulsory post-review, or reactive user reporting? What should be the minimum staffing for an ad-supported internet forum? If you grow larger than you can moderate, should you be shut down?

        1. John 104 Silver badge

          Re: Love that last paragraph

          @daggerchild...

          So what you're saying is, ban Twitter for its libelous content, and Ebay for its counterfeit products. Wikipedia for factual inaccuracy?

          The difference here being that when someone gets bent or ripped off on one of these sites, they aren't getting to rape a minor as a result...

      3. TheFinn

        Re: Love that last paragraph

        Your closing sentence sums it up for me. If I'd created something to make me money, a platform which, in spite of its other good points, was a vector for this awful trade, and I knew this... BUT...it was within my power to make it as difficult as possible for these people, and I wasn't...well...I'd look at my money and think that not all of it was clean. As a person, I'd think this. Safe harbour be damned, I'd still feel responsible.

        1. This post has been deleted by its author

          1. Mark Quesnell

            Re: Love that last paragraph

            They're down voting because they consider the stated opinion wrong. You have your opinion and they have theirs.

      4. NumptyScrub

        Re: Love that last paragraph

        Free speech does not cover all speech. There are legitimate restrictions, though few. Good judgment and responsible behavior should be mandated.

        "Free speech" does cover all speech, including the speech that most people agree shouldn't be spoken. That's why we don't have "free speech" (in either the UK, or the US) and instead have various levels of restricted speech; the concepts of slander and libel as a crime, and the concept of free speech, are mutually exclusive ones.

        It's outrageous to think ANY entity would NOT be held responsible for publishing the information in this lawsuit. It's no surprise at all the EFF would support the abuse of people under the guise of free speech. Apparently some folks do not understand that ALL speech is not free and that this is a perfect example of where an entity is liable for their negligence in allowing these ads by crims for illegal behavior to be posted. There are responsibilities associated with mass publication and these folks clearly are negligent in allowing these ads to be published.

        I appreciate that the subject matter here is immensely emotive, but while the EFF are doing themselves no favours getting involved in this one, the actual decision was not theirs; it was the judge. An actual legal Judge, made a legally binding decision in a court of law, that people (including yourself) disagree with. You are free to disagree (unless you make slanderous or libellous comments about the judge, obviously), but don't blame the EFF for any perceived travesty of justice; blame the judge who disagrees with your interpretation of the law.

        It would also be nice if you didn't blame me for pointing this out, as well, although I understand that for immensely emotive subjects like this, it is easy to get into the "anyone who disagrees must be destroyed!" mindset.

      5. streaky

        Re: Love that last paragraph

        this is a perfect example of where an entity is liable for their negligence in allowing these ads by crims for illegal behavior to be posted

        Comment so egregious I don't even know where to start. Prosecuting x for the behaviour of y is the beginning of the end, and what's more you know this.

  6. This post has been deleted by a moderator

  7. Ken Hagan Gold badge

    Can't win.

    In context, the terms that weren't filter (particularly "underage") look damning but there are presumably plenty of legitimate uses of words like "girl" or "roses" and so legitimate advertisers might reasonably be offended if site operators sent back a snotty email saying "We've decided you are probably a paedo so we're rejecting this ad.". In fact, they might be offended enough to tell their lawyer about it.

    1. Old Handle

      Regarding the keywords

      "Underage" is the only one of the keywords that should have been blocked. Though I suspect the reason it wasn't is simply that almost nobody was dumb enough to bluntly state they were "underage" in the first place.

      Referring to young women as "girls" is very common. If that implies pedophilia... well we have a problem. "Young" is a perfectly valid term, which could easily be applied to anyone under 30. "Fresh" and "tiny" might be a bit suspect in this context, but they still don't prove anything illegal is going on.

      Finally, "roses" which I had to look up, doesn't refer to underage girls at all; it means money. So I don't even see how it applies in this case. It could be used to disguise prostitution listings in personals ads, but if they're admitting to being "escorts" anyway, I don't see why they'd need to hide that money was involved.

  8. Daggerchild Silver badge

    Or, instead of hiding them from your sight, you could look out for them?

    It's not actually shown here that the operator was *capable* of blocking them. It says they'd already placed blocks, which were promptly circumvented and lied to. Are we gunning, endgame, for mandatory manual premoderation of some class of internet content here? Is that even viable?

    But best case, the operator blocks the ads, chops down the weed. Would the crime go away? It predates the Internet. No. The roots just start sprouting 'pink lillies' instead of 'roses'. They start hiding amongst the flowers. Find them. Grip them carefully. Rip out the roots. Don't scatter the seeds. If you just keep cutting off the leaves you'll have nothing to grip.

    May I be so rude as to ask whether the children suggested this lawsuit? Not that others would ever wield the tears of children to further their own agendas...

  9. Chris G Silver badge

    Look for the justice

    Why the case was brought up was a cry for justice but the judicial decision was based not on justice but the law. Courts don' t really do justice much nowadays, for that you need a guy or a girl in lycra and a cape . Anyone expecting a business to exercise morals and ethics in preference to profit is going to be disappointed.

  10. dogged

    Pretty harsh moderation on this article.

    It appears that we're not allowed to criticize the (blatant) attempt to blame Google and the EFF for child prostitution, human trafficking and racketeering.

    1. gazthejourno (Written by Reg staff)

      It's on manual pre-moderation, being a particularly sticky legal story. And approving comments comes way down our list of priorities.

  11. User McUser

    Probably wouldn't have changed anything anyway.

    Remember when Craigslist ended their "Escort" listings and then there weren't any prostitutes any longer?

    Yeah, me neither.

    If you want to end underage prostitution, or at least make it more difficult, then the better solution IMO is to legalize adult prostitution. Legalizing adult prostitution means prostitutes of any age can go to the police for help if they are being coerced or abused without fear of being arrested. It also opens brothels/pimps to government inspection of both their facilities and employees which would be far more effective in locating underage prostitutes than moderating or shutting down a website. (Not to mention numerous public health and tax benefits, but that's unrelated.)

    Would legal prostitution end this kind of child abuse? No, of course not - underage prostitution has been around since prostitutes have, it hasn't always been illegal or even scorned, and there are plenty of awful people out there willing to facilitate it. But legal adult prostitution will make it more difficult for paedophile pimps to exist and easier for the authorities to find them for two reasons. First, if the Vice Squad isn't spending all their time finding and arresting adult prostitutes, they can work instead on locating and rescuing underage prostitutes. Second, without adult prostitution to mask their presence, paedophile pimps will have a harder time concealing their activities. After all, if you're looking for needles in haystacks it's much easier without all that hay getting in the way.

    1. dogged

      Re: Probably wouldn't have changed anything anyway.

      That is an excellent argument. Well done, sir.

    2. Anonymous Coward
      Anonymous Coward

      Re: Probably wouldn't have changed anything anyway.

      Legalize adult prostitution, but require a license to buy it. Possibly to sell it too, not sure.

  12. Henry Wertz 1 Gold badge

    The judge is right

    The judge is right.

    Several points here --

    1) The site did have filters. Which these posters evaded.

    2) The site had an age check.

    3) The site probably converts images when they are put on, for size (filesize and on-screen size) and consistency, not just going along stripping metadata. Of course when sites *haven't* stripped metadata, there are also complaints because they leak information the poster didn't know was in the photo, and they become a virus hub for "malformed image" type attacks that have plagued WIndows from time to time.

    4) "Backpage" is not some double entendre, this is a general purpose classified ads site. It looks like a craiglist clone.

    5) So, how the hell lazy are the cops anyway that they didn't catch the scumbag(s) responsible for these ads quite a while ago? If it was so obvious, it should have been a no-brainer to just order services, and have whoever shows up take them back to the pimp to bust. If they moved, call *that* police department and have *them* do it, or get the feds involved and moving wouldn't help them.

    This really is the kind of thing the CDA was meant for -- quite simply, a "provider or user" is not liable for content that was actually put up by another "provider or user". I mean, it makes sense -- anyone who runs a blog with a comment section could be sued for literally anything otherwise based on what random trolls and hooligans put in the comments before you get on and remove them.

    I'd also like to point out, when some newspaper here in the US started complaining about Craigslists ads for "massages" and "escorts" (until Craigslist finally pulled them), it turned out THAT VERY PAPER had FAR more of these ads in their classifieds than Craigslist itself did. I'm just saying, this site may be being singled out for ads that showed up elsewhere.

  13. Henry Wertz 1 Gold badge

    Reason for this CDA clause

    The reason for this clause in the CDA, is that before it was passed the legal precedent was building up towards online providers that did not try to moderate or filter their sites getting common carrier status and so getting a free pass (after all, nobody would try to prosecute phone companies for the numerous illegal activities that surely are facilitated by telephones), while those who DID moderate their sites could be prosecuted for things they missed. Which is exactly what was happening here. Just think how much seedier it'd be online if site operators felt the only way to avoid prosecution was to never moderate their comments.

  14. Anonymous Coward
    Anonymous Coward

    Next up

    a reversal on appeal to common sense and decency.

    1. dan1980

      Re: Next up

      @AC

      I can't quiet figure out what you mean here so I will take it at face value - that you expect there to be an appeal on this ruling because "common sense decency" dictate that this site is indeed liable.

      If that's not what you mean, then apologies, but I suppose my comment would be valid either way.

      That comment is that the law isn't about 'common sense'. It's about facts and about making sure that people (and businesses) are not convicted by popular opinion.

      With regards to 'decency', it's also important that protections are not dependent on the severity of the crime or the public outrage at it. That's when they are needed most.

  15. Turtle

    Insufficiency.

    Irrespective of what anyone thinks of prostitution, "Backpages" is a locus for criminal activity and the idea that a filter is sufficient for vetting their ads is laughable; there needs to be an actual human being making the decisions.

    (I would expect the judge's decision to be reversed.)

  16. sisk

    Faith in humanity....

    Gone.

    1. Anonymous Coward
      Anonymous Coward

      Re: Faith in humanity....

      never had any

  17. Hardrada

    A few caveats:

    A quick slang search will tell you that "100 roses" is slang for $100, and not specific to minors.

    Regarding this: "Jane Doe No.1 was sold as property at the age of 15, appeared in some 300 Backpage classifieds, and, according to the judgment, was raped more than 1,000 times."

    The law in a lot of US jurisdictions encourages prostitutes to claim that they were forcibly trafficked, since they would otherwise be prosecuted. This used to be true for minors as well, but I believe that's changed or is about to. It's still statutory rape under US law to have sex with someone who's under your state's age of consent, and under federal law if you cross state lines to have sex with someone under 18. Using an interstate service like backpage may also qualify.

    The victims' advocacy groups in my area are a lot like anti-abortion groups in their political tone. In one recent case* of alleged campus rape that turned out to be fabricated, this is what they said:

    “The victim-survivor is the most important person in all of this, and supporting what it is they’re going through and what they may want in the process,”

    The "victim-survivor" wasn't charged with filing a false police report (as I certainly would be if I did something comparable), and even the local plods tried to avoid acknowledging that she broke the law (“After further investigation, the University of Minnesota police department is no longer investigating the report of a sexual assault in Sanford Hall as a stranger sexual assault”), and seemed itent on protecting her (“Our priority right now is on providing the support to this student that she needs”).

    *http://www.startribune.com/u-police-don-t-think-student-was-victim-of-armed-assault/303006671/

  18. Henry Wertz 1 Gold badge

    "(I would expect the judge's decision to be reversed.)"

    I wouldn't, but they could in theory keep appealing the decision up to the supreme court, if higher courts will hear the case.

    "Irrespective of what anyone thinks of prostitution, "Backpages" is a locus for criminal activity and the idea that a filter is sufficient for vetting their ads is laughable; there needs to be an actual human being making the decisions."

    I do have to agree, there seem to be quite a few sites that seem like they rely entirely on "automated moderation" (filters and the like) with very little to no actual human moderation, instead of using the automated moderation as an aid. And some of them really could use some human moderation. The first thing I thought when I heard about that FTC case against "Youtube Kids" a few days ago was that they really should have some moderators, and Backpage and similar buy/sell/trade sites should have some moderators too.

  19. icesenshi

    Stripping metadata from pictures = crime or wrongdoing?

    Uh what about the bbc then?

  20. ShadowDragon8685

    This is how rights get stripped away - an attack which is outrageous in scope and shocking in nature fires up the ignorant masses to decide "Something must be done, and that something must be done NOW! Not later, not after informed deliberation, not after someone cashes a reality check and decides that existing standards were sufficient, but RIGHT NOW SOMETHING MUST BE DONE RIGHT THIS INSTANT WHY ARE WE NOT DOING ANYTHING WHAT ARE WE ANIMALS/COWARDS?!"

    And so something is DONE RIGHT NOW. And when it's done, it turns out that protections have been stripped from laws and over-grasping, far-reaching laws have been passed that allow true, genuine outrages to be perpetrated - by those who should ostensibly be upholding the laws.

    Think about 9/11. A bunch of wankers crashed some planes into building, and was that outrageous? Yes, it was.

    Exactly how many airplane hijackings has the TSA, the agency which was hastily assembled in the public fervor to DO SOMETHING RIGHT NOW stopped? Precisely zero.

    Meanwhile, they ARE doing things like perpetrating mass thefts of traveller's properties, forcing mothers to drink from bottles of breast milk, instituting ridiculous lines and delays, harassing people who have taken them to court previously and won, etc. And this is to say nothing of the powers the other alphabet agencies acquired for themselves in the aftermath of that gigantic charlie foxtrot.

    So, just extrapolating wildly from previous experience, if in the fervor to DO SOMETHING RIGHT NAO, Backpage was found to be liable and a criminal party to the acts of criminals who used their service for bad things, it would be the death-knell of all forms of internet forum and commentary which are hosted or have interests in the United States of America. Nobody could dare host a forum, for fear someone would break a law on it and they would themselves become liable.

    So, everybody who's screaming for them to DO SOMETHING NOW, for them to "reverse it on appeal to common decency," think about that. It would be the end of these very story commentary pages, in fact, because El Reg has, I believe, a San Fransisco office that could be held accountable if some dirtbag in Phoenix, Arizona, used some crypto-speech on El Reg's forums to inform a cohort he was going to rob a bank in Montana, and then did it, and El Reg somehow became an accomplice because the dirtbag did part of their dirtybag communications on these forums.

    THINK before you people scream for ACTION. Acting before you think is how we get Patriot Acts and Guantanamo Bay and Extraordinary Rendition. The road to hell is paved with good intentions, and you guys are driving the asphalt truck!

    1. dan1980

      @ShadowDragon8685

      Nail; head.

      I would simply add some elaboration on "the road to hell is paved with good intentions", and say that our governments (and the agencies 'beneath' them) have the buses fuelled and ready to take us there but it is our outrage and/or complacency that help build the roads.

      They (the governments) do not have good intentions; they want something very closely resembling a facist police state. I doubt many of them really think of it that way but that's the reality - when you monitor everyone and censor everything (for the good of the people, of course) and enact "strong", "zero tolerance" laws against anything and everything you view as dangerous to the harmony of the state, then you are building a facist regime.

      Establish armed police in the Parliament public gallery, throw in some bits about it being a crime to report on government activity that is related to "National Security"* and you have just made it a crime to question authority.

      Just remember - Big Brother loves you; it's all for your own good and your own protection. Just think how much happier we could all be if we just had everything spooned out for us by our benevolent leaders.

      * - With what is an is not "National Security" decided by . . . who else!?

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