Backpage.com faces contempt charges for withholding documents on sex trafficking

A resolution before the Senate would hold a community advertising website in contempt for not turning over documents about its policies for editing ads to screen for child prostitution.

Advertisements on Backpage.com, a Craigslist-style online advertising site that features a section of ads for sex-related services, have been connected to 71 percent of child sex trafficking cases reported to the National Center for Missing and Exploited Children, according to testimony the nonprofit made before the Permanent Subcommittee on Investigations last November.

“In order to address the problem of selling children and coerced adults in online marketplaces … we need to understand it better,” Sen. Rob Portman of Ohio said at a Feb. 10 meeting of the Senate’s Homeland Security and Governmental Affairs committee. “It has been not just bipartisan, but nonpartisan.”

The resolution, approved unanimously by the committee, comes after Congress asked the owners of Backpage.com for documents relating to its procedures and, more specifically, how it screens advertisements posted to its “adult” section. The company declined to provide most of those documents, citing First Amendment protections.

Don Herzog, law professor at the University of Michigan, said he doesn’t think the company’s free speech arguments will hold up in any “competent” court. The arguments it uses, he said, seem to hinge on a 1950s court case that found the government couldn't request the distribution list of a political organization sending pamphlets to interested parties. In that case, however, the government wasn't requesting the information in regard to a crimes that were being committed.

"Here, the government says 'we're trying to figure out how sexual trafficking works … we think your website has something to do with it,' " Herzog told AMI Newswire. "It's like the police knocking on your door and saying 'did you see anyone speed down the street in a black Corvette yesterday?' "

The action is not the first time the company, which the committee said generates as much as $150 million annually in revenue, has faced legal scrutiny for its role in sex trafficking. In 2012, Backpage sued the state of Washington over a law that would require it to verify the ages of those posting ads for sex-related services. The company successfully argued that the law was in violation of the federal Communications Decency Act.

“That’s what the senate hearing was about - fact gathering,” Kate Nace Day, a recently-retired Suffolk University law professor who focused on laws regarding sex trafficking late in her career. “It’s within the power of Congress to amend the Communications Decency Act; it’s within their power to redefine what has been protecting website providers.”

Backpage’s resistance might have more to do with victim liability, after a recent Washington Supreme Court ruling allowed a suit by three minor victims of sex trafficking against the company. The Electronic Frontier Foundation filed an amicus brief in that case, again arguing that the Communications Decency Act was designed to protect online advertisers from litigation arising from its role in crimes.

“If online service providers were required to engage in protracted and expensive litigation whenever plaintiffs alleged that providers knew about or ‘developed’ the offending content, those services would inevitably become more expensive, more restrictive, and ultimately less available for public speech,” the brief argued.

Day said part of the difficulty in pursuing facilitators of sex trafficking is that only a “criminal law” model is used in curtailing the trade.

“Third party profiteers, people who are making profit from trafficking … they are, at least in theory, accountable under the Trafficking Victims Protection Act,” Day said “The problem is, if you have a criminal law model (for pursuing sex trafficking cases), a great deal of activity is beyond the … political reach of the criminal justice system.”

In its recommendation, the Permanent Subcommittee on Investigations called Backpage a “market leader” in commercial sex advertising, capturing more than 80 percent of the total industry revenue for the U.S. market

An email to Village Voice Media Holdings LLC, the company that owns Backpage.com, went unanswered as of Friday, as did emails to Senate Majority Leader Mitch McConnell (R-KY).