Commentary

Backpage Hit With Two New Lawsuits

Backpage has won a string of courtroom victories in battles over its controversial adult ads, but that fact isn't preventing the company's critics from continuing to target it.

This week, the online classifieds site was hit with two new lawsuits -- one in federal court in Florida, the other in Arizona. In both cases, the complaints allege that Backpage is responsible for sex trafficking that occurs as a result of ads on the company's site.

"Backpage creates, develops, and posts illegal content intended to sell trafficked adults and children in the 'Sponsored Ads' part of the 'Adult Services' section of its website," the complaints allege.

The complaints draw heavily on a recent U.S. Senate report that concluded Backpage's official efforts against child sex trafficking -- including using filters that deleted words like "teenage" and "innocent" from ads -- were counterproductive.

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The Senate report said that the company's interactive tools, including the filters, ended up "coaching" people on how to get around the restrictions. For instance, users who attempted to post an ad with the word "teen" were told it was impermissible; they then allegedly circumvented the filter by using a replacement like "high schl," which wasn't caught by the tool.

"Backpage’s 'filter' is nothing more than a coaching mechanism intentionally designed by Backpage to facilitate and profit from sex trafficking," the complaints allege. "It certainly does not, as Backpage claims, prevent child trafficking -- nor did Backpage ever intend for it to do so."

The day the Senate report came out, Backpage said it had stopped accepting adult ads. But the substance of the report wasn't new. Former California Attorney General Kamala Harris (now a U.S. senator) made many of the same allegations in her unsuccessful attempt to prosecute Backpage's executives on criminal charges.

Regardless of the company's decision to shutter its adult ads, no court in the country has ever held Backpage responsible for ads posted by users. On the contrary, many judges have said that Backpage is entitled to immunity under the Communications Decency Act, which protects Web companies from liability for crimes committed by users.

Most recently, the 1st Circuit Court of Appeals ruled that teen sex-trafficking victims couldn't proceed with a lawsuit against Backpage. The Supreme Court refused to hear the teens' appeal of that decision.

Boies Schiller Flexner, the same high-profile law firm to bring both new cases, unsuccessfully urged the Supreme Court to take up that matter last year.

Digital rights advocates including the Electronic Frontier Foundation and Center for Democracy & Technology have supported Backpage in its prior court battles, arguing that Web companies won't be able to offer interactive platforms if they're going to be held liable for users' posts.

“If online service providers were required to engage in protracted and expensive litigation whenever plaintiffs alleged that they were harmed by user-generated content hosted or transmitted by intermediaries, these online platforms for users’ speech would inevitably become more expensive, more restrictive, and ultimately less available for individual expression,” a coalition of groups argued in papers filed in a prior lawsuit.

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