• by Wendy Davis , Staff Writer @wendyndavis, November 1, 2016

A group of advocates including Cindy McCain are siding with teen sex-trafficking victims who are trying to sue Backpage over its classified ads.

The teens recently asked the U.S. Supreme Court to decide whether they can sue Backpage for allegedly enabling sex trafficking through the design of its online classifieds site. McCain, wife of Sen. John McCain (R-Arizona), and the other advocates, are backing that request.

Earlier this year, a federal appellate court upheld a trial judge's ruling dismissing the teens' lawsuit. Those courts ruled that Section 230 of the Communications Decency Act immunizes Backpage from liability based on users' crimes.

McCain and the other advocates, including the National Center on Sexual Exploitation and the YWCA of Silicon Valley, argue that those lower courts' decisions are wrong. "Backpage has concrete knowledge about the underage sex trafficking that is occurring on its website," they argue in a friend-of-the-court brief submitted late last week. "Congress cannot have intended to 'immunize' such willful conduct."

The earlier rulings in favor of Backpage follow a long line of decisions, dating back almost 20 years, protecting Web services companies from lawsuits based on users' actions.

The first major federal appellate ruling, issued in 1997, involved a lawsuit against AOL. In that case, the 4th Circuit Court of Appeals said AOL wasn't liable for defamatory statements posted to its message boards. Numerous tech companies -- including Craigslist, MySpace, Google and Facebook -- have since prevailed in lawsuits by people who sought to hold the sites responsible for crimes or other activity by users.

McCain and the other advocates now contend that the 1997 ruling -- and the numerous decisions that followed it -- stemmed from a "misguided interpretation" of the Communications Decency Act.

"This misguided interpretation has allowed criminal activity to flourish online, because the prevailing judicial view trends towards exonerating any behavior -- no matter how harmful -- so long as it takes place online and bears some relationship to third-party content," they assert in papers submitted to the Supreme Court late last week.

McCain and the other advocates are represented by the well-known law firm Boies, Schiller & Flexner -- which also counts Silicon Valley companies like Apple as well as media companies like CBS among its clients.

Santa Clara University law professor Eric Goldman, who has written extensively about Section 230 of the Communications Decency Act, tells MediaPost the advocates' arguments mark a "broad-based fundamental attack on Section 230."

If the attack is successful, it could leave most -- perhaps all -- interactive sites vulnerable to litigation based on comments or other activity by users. That's because Section 230, and the immunity it confers on Web companies, is seen as critical to free speech online. Without that promise of immunity, Web platforms arguably would have to either take a much more proactive approach to policing their sites or ban user-generated material altogether.

The Supreme Court has never ruled on whether Section 230 immunizes Web companies when users post unlawful material. The court hasn't yet indicated whether it will hear the teens' appeal.