The trafficking of children for sex in the United States is an appalling and very real problem, which a new Washington state law means to eliminate by targeting websites that offer classified advertising for escort services. But many fear the law poses a serious threat to free speech on the Internet by imposing upon online service providers the burdensome duty to monitor, vet, and otherwise censor third-party content.
Signed into law earlier this year, Washington Senate Bill No. 6251 creates the felony offense of "advertising commercial sexual abuse of a minor." Though the bill does not explicitly reference Backpage.com, there is little doubt that the Village Voice Media Holdings site was the impetus for the law. Backpage.com has generated a veritable furor by refusing to nix its adult section, to which personals featuring underage prostitutes are posted at a frequency subject to considerable debate. During hearings on the bill, a member of the Washington state legislature announced that she would "love to see the escort services section [of Backpage.com] shut down completely." The law was also touted as a landmark in the years-long offensive by state attorneys general condemning Backpage.com for not doing enough to prevent exploitation of minors via the site.
As reported by Eric Goldman, The First Amendment Center, and many others, Backpage.com filed a federal lawsuit in the U.S. District Court for the Western District of Washington seeking to invalidate the law before it was slated to take effect. Shortly thereafter, the Internet Archive filed a motion to intervene as a plaintiff in the suit (which was granted on Monday). An order preventing enforcement of the law will remain in effect until further hearings in the case.
Both Backpage.com and the Internet Archive stress the implications of SB 6251 for the practice of hosting third-party content online, should the law withstand review. The initial complaint in Backpage.com v. McKenna alleges that the threat of criminal prosecutions under the statute would effectively require thousands of websites to screen vast amounts of user-generated material for content that might trigger a felony charge under the law. The Internet Archive echoes these fears, stating that the online library "has no practical ability to evaluate the legality of any significant portion of the third-party content that it makes available online."
The question of whether SB 6251 could force Internet intermediaries to police third-party content is worth examining, because of the radical effect that imposing a monitoring requirement would have on the operation of sites that provide access to third-party content. This is particularly important with an act similar to Washington's now in effect in Tennessee.
Currently, federal law does not clearly establish a general duty of Internet intermediaries to pass on the legality of material created or published by third parties. By its terms, section 230 of the Commnications Decency Act provides online service providers with broad immunity from liability stemming from third-party content. The statute does not cover federal criminal law or intellectual property claims, but it is largely understood that section 230 relieves websites from the responsibility of screening user-generated content for illegal material.
Moreover, existing proscriptions for crimes of a sexual nature against minors appear to lack monitoring requirements. 18 U.S.C. § 2252, for example, outlaws the possession and distribution of child pornography. It punishes the knowing receipt, distribution, and access of visual depictions of minors engaging in sexually explicit conduct. The statute sets forth affirmative defenses for those who, after becoming aware of such material, contact law enforcement officials (and grant them access to it) or destroy the material altogether. If there is a duty on Internet intermediaries under section 2252 to act (if at all) with respect to third-party content, it arises only after the knowing discovery of material violative of the statute.
Thus, current federal law does not appear to create the type of monitoring regime feared by the challengers to SB 6251. So, as written, does SB 6251 effect an obligation on service providers to determine whether user-created content might result in criminal liability? The bill's primary provision is the source of such concerns:
A person commits the offense of advertising commercial sexual abuse of a minor if he or she knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, 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.
There is significant vagueness in SB 6251, such as a broad and unhelpful definition of an "advertisement for a commercial sex act" in Section 2(1)(a), but here I will focus on the uncertainty as to how the term "knowingly" operates.
The text indicates that one who "knowingly publishes, disseminates, or displays" an advertisement for child sex trafficking violates the law. However, the next clause suggests that knowledge may not be a necessary element of a conviction. Those who "cause directly or indirectly" content to be "published, disemminated, or displayed" may also be prosecuted, which could result in strict liability for service providers who have no actual knowledge of offending content generated by a user. Even if the knowledge requirement carries through to the causation clause, service providers might be subject to criminal penalties for "knowingly" providing a service (such as Backpage.com) that is the indirect cause of an advertisement being published by a third-party.
The analysis is further complicated by the fact that, under the statute, "it is not a defense that the defendant did not know the age of the minor depicted in the advertisement." The phrase provides insight into the intent of lawmakers in passing the bill, suggesting that they do not consider ignorance a valid defense. However, the phrase clarifies little as to whether the bill's scienter requirement (or lack thereof) applies only to the content of a particular advertisement once an intermediary learns that such content has been posted, or means that a service provider could be found liable under the law without knowledge of specific content forbidden by its provisions.
The zealous politicians behind SB 6251 made it clear that Backpage.com is the target of the law. In that respect, the law faces serious hurdles regardless of how its scienter requirement is interpreted, not the least of which is Section 230's prohibition of state laws (even state criminal laws) that hold online intermediaries responsible for third-party content. But if the law survives review and is read to impose a monitoring requirement, it would be a powerful arrow in the quiver of an aggressive prosecutor -- and impose an almost impossible burden on online services hosting third party content that might be considered "advertisements."
Update, August 3, 2012:
On July 27, 2012, the court granted a motion for a preliminary injunction by Backpage.com and the Internet Archive, preventing enforcement of the law until the court reaches a final decision about the validity of SB 6251 on the merits. The court held that plaintiffs are likely to succeed on their claim that SB 6251 is preempted by section 230 of the Communications Decency Act. The ruling states that SB 6251 conflicts with SB 6251 because it (1) imposes liability on online service providers based on third-party content, and (2) "creates an incentive for online service providers not to monitor the content that passes through its channels." Section 230(c)(2) encourages voluntary removal of offensive content by providing immunity for editorial decisions; the court believed that SB 6251 conflicted with this purpose by deterring site operators from reviewing content lest they gain "knowledge" of advertisements that would be illegal under the law.
The court also stated that SB 6251 likely violates the First Amendment and the Commerce Clause. With respect to the First Amendment, the court held that the statute chills protected speech through its imposition of strict liability, its vagueness, and its overbreadth. In regards to the Commerce Clause, the court held that the statute likely regulates conduct that takes place wholly outside the state, constitutes a significant burden on out-of-state activity, and attempts to regulate a unique aspect of commerce (the Internet) that demands national treatment.
Natalie Nicol is an intern at the Digital Media Law Project and a rising 3L at UC Hastings College of the Law. She loves the Internet, and appreciates those who indulge her desire to discuss its wonders at length. She thinks that SB 6251 is far from wonderful. Natalie was previously an intern at the Electronic Frontier Foundation (which represents the Internet Archive) and the alt-weekly Westword (a Village Voice Media newspaper).