New Backpage Ruling Lays Bare Some of the Lies Undergirding FOSTA

The ruling allows a civil suit against Backpage to proceed for one of the case's three plaintiffs.


Jonathan Kirn Stock Connection Worldwide/Newscom

Does a new federal court ruling in Massachusetts show the bankruptcy of recent congressional sex trafficking legislation? Yes and no.

The ruling, from U.S. District Judge Leo Sorokin, allows a civil suit against the classified-ads website Backpage to proceed for one of the case's three plaintiffs, referred to in court documents as Jane Doe 3. For the other two plaintiffs, the judge granted Backpage's motion to dismiss the case.

The plaintiffs allege they were victims of sex trafficking, that their traffickers posted (or required them to post) ads on Backpage in order to advertise their services, and that Backpage is thus responsible for their exploitation and abuse. They further allege that in at least one instance, Backpage edited an ad to make it appear that Doe 3 was an adult when it should have been obvious that she was a minor.

Coming just a few weeks after Congress passed a measure related to prostitution advertising (known as FOSTA), the ruling has sparked debate over whether the new law is actually needed in order to hold sites accountable for knowingly facilitating sex trafficking. FOSTA declares that the Communications Decency Act's Section 230, which protects digital platforms from certain legal liabilities for the things that third parties post, doesn't apply in matters relating to sex trafficking or prostitution.

Notably, Section 230 does not apply if the content in question was created by the platform "in whole or part." In his May 29 decision, Sorokin stressed that if Backpage employees had edited Doe's ads in a substantial manner, the site would not be protected from liability for contributing to Doe's prostitution as a teenager.

Opponents of FOSTA say Sorokin's ruling shows that one of the major stated rationales for FOSTA—to allow civil suits against Backpage—can be done without a new federal mandate. This is true, but only insofar as Backpage actually made substantial edits to the offending ads.

In other words, if Backpage is the monstrous "online brothel" that politicians claim it is, and it knowingly changed content to obscure the sex trafficking of minors, than victims can sue and Section 230 doesn't apply. But so far, nothing in the Massachusetts case, in previous federal cases against Backpage, or in a year-long Senate investigation into Backpage's practices has shown that this is the case.

If Backpage is not the monster—and content creator—that its critics say it is, that means holding it "accountable" for user-generated content does require the government to roll back Section 230.

It also means it's a myth that FOSTA is only going to harm "bad" sites.

As lawyer Eric Goldman wrote on Friday, "Backpage has been the poster child for Section 230's purported failings" under the argument that "(1) Backpage facilitates sex trafficking, (2) Section 230 protects Backpage, so (3) Section 230 is evil." A court ruling that Section 230 doesn't preclude prosecution of Backpage would destroy the whole premise for the law.

That premise has always been bunk to those paying close attention. (Crucially, "Section 230 does not provide Backpage—or anyone else—absolute immunity, and it never has," notes Goldman.) But the general pitch for FOSTA has been offered on hold-Backpage-accountable grounds.

Particulars were "ignored" in "legislative developments, leading Congress to eviscerate a crucially important and brilliantly visionary law (Section 230) for what may be minimal or no real gains to benefit victims of sex trafficking," writes Goldman.

Behind the scenes, forces including the Senate Judiciary Committee and all sorts of scholars, lawyers, and tech folk had urged legislators to hold off on advancing the bill until a ruling in the Massachusetts Jane Doe case. Instead, the sponsors of a Senate version of the bill (known as SESTA) "refused to involve the Senate Judiciary Committee in a bill that raised hard questions of criminal law far outside the competence of the Commerce Committee," notes TechFreedom. "When, in February, the House Judiciary Committee finally voted out a starkly different bill [FOSTA], and warned that SESTA's approach would do little to help sex trafficking victims, SESTA's sponsors simply ignored that advice and held a shotgun marriage of the two bills." Even the Department of Justice objected to that.

The Senate also voted down an amendment that would have ensured funding for FOSTA's enforcement. TechFreedom suggests this was "because that would have required a second vote in the House, and thus allowed an opportunity to fix other problems in the bill."

Congressional leadership rushed the package to a full vote, and it passed both houses with overwhelming bipartisan support. In the Senate, only Rand Paul (R-Kentucky) and Ron Wyden (D-Oregon) voted against it. The president has yet to sign it, but the bill is already having effects anyway: Reddit has banned sex worker communities, and Craigslist is shutting down its personals ad section.