Backpage.com, once a sleuth-like tool in the fight against sex trafficking, has become the target of criminal investigation. Earlier this month, California Attorney General Kamala Harris charged the classified ad website’s CEO Carl Ferrer with pimping and conspiracy, deploying the help of Texas law enforcement to execute his arrest.

Free speech advocates fear that state efforts to prosecute publishers of third-party content like Backpage.com imperil First Amendment and federal preemption rights.

Ferrer’s October 6 arrest comes on the heels of a two year Senate investigation into the editorial practices at Backpage.com. Backpage (an analogue to Craigslist and “the leading forum for unlawful sexual commerce on the internet,” according to a federal district court) has come under fire on the heels of a year-long U.S. Senate investigation of its connection to the sex trade.

A  2015 report of the Senate Permanent Subcommittee on Investigations (PIS) alleged that Backpage is more than a passive bulletin board for sex trafficking ads [disclaimer: NSFW]. The report suggests that Backpage.com actively screens and edits ads that market sexual services of minors and coerced adults to help its users evade law enforcement detection.

But law enforcement’s suspicions about Backpage and its involvement in the child sex trade are unconfirmed—Ferrer has refused to comply with an October 2015 Senate subpoena. Late last month, the U.S. Supreme Court denied Ferrer’s appeal to block the subpoena. A subsequent order from the District Court handling the subpoena, Backpage must hand over even privileged correspondence between its attorneys and corporate officials, Reuters reports.

Ferrer argues that the First Amendment, and an analogous safe harbor provision of the Communications Decency Act (CDA), shields Backpage from prosecution and further disclosure. Section 230 CDA grants immunity from liability for publishers of third-party generated content to which they do not materially contribute. Thus, the California case may hinge on what the Senate subpoena yields. If the documents confirm the Senate’s theory that Backpage was complicit in the online illegal sex trade, the CDA may not protect Ferrer and other executives.

Also unclear is whether states even have the authority to bring criminal charges against Ferrer and his associates due to an express preemption provision in the Communications Decency Act (CDA). In an October 17 letter to Harris, Ferrer’s attorneys point to a 2013 letter from Harris and other state attorneys general asking Congress to amend the CDA to amend the CDA “in order to grant criminal jurisdiction to state and local governments.”

Meanwhile, two child sex trafficking victims who were marketed on Backpage.com, after having lost in the First Circuit, petitioned the U.S. Supreme Court to define the bounds of CDA’s safe harbor provision. Backpage’s response is due to the Court November 30.

Reity O’Brien

 

 

 

 

 

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