After a sustained assault from lawmakers, investigators and victims groups, the website Backpage.com agreed early this year to shut down its lucrative adult page, which had become a well-known sex-trafficking hub.
It wasn’t long before the company was back in the headlines.
The adult section was gone, but the sex traffic was not. In May, authorities in Stockton charged 23 people with involvement in a trafficking ring that was using another corner of Backpage to market sex with girls as young as 14. A Chicago teenager allegedly trafficked on Backpage had her throat slit in June.
The resilience of this platform — host to an estimated 70% of online sex trafficking at its peak — is a long-running public relations mess for the tech industry. Internet freedom laws held sacred in Silicon Valley have helped shield Backpage from prosecution and lawsuits by victims of gruesome sex trafficking.
Now the tech industry’s Backpage problem has evolved into a full-blown political crisis. An unexpectedly large coalition of lawmakers is aiming to hold sites like Backpage liable for trafficking, sparking panic in Silicon Valley over the far-reaching consequences for the broader Internet.
The noisy political battle is forging unusual alliances in Washington. And caught in the middle are some of the most influential lawmakers in California.
They find themselves struggling to reconcile a sex trafficking scourge that has hit their state hard with a remedy that Silicon Valley cautions would be a disaster for a free and open Internet.
Trade groups representing Google, Facebook and other Internet giants warn of a “devastating impact” on the tech industry if the 1996 Communications Decency Act is tinkered with in the way lawmakers envision to hold Backpage and others liable for criminal material on their pages.
They project “mass removals of legitimate content” by social media and other firms scrambling to shield themselves from a deluge of lawsuits from trial lawyers and prosecutors. The ACLU joined the Electronic Frontier Foundation and other groups in warning lawmakers that if they pass the law, every one of the millions of social media postings placed online daily becomes a potential liability for the company hosting it.
But much of Congress is unimpressed by the predictions of calamity.
The lawmakers have grown impatient with Silicon Valley’s limited success at self-policing, and its flat-out refusal to consider modifications to its cherished immunity from the illegal behavior of posters, as enshrined by the two-decade-old act.
Judges keep returning to that immunity in dismissing claims against Backpage, sometimes in the face of what they acknowledge may be compelling evidence that the firm condoned trafficking.
“The Communications Decency Act is a well-intentioned law, but it was never intended to protect sex traffickers,” said Sen. Rob Portman (R-Ohio).
More than a quarter of lawmakers in Congress have already signed on as sponsors of the nascent bill Portman is taking a lead on that would change the act, or to a similar measure in the House. It is a formidable show of bipartisan support that is jolting tech companies. The momentum grew in August, when a Sacramento judge threw out state criminal pimping charges against Backpage, citing the immunity from such prosecution the company receives under the act.
California prosecutors had built much of their case around allegations that Backpage helped traffickers and pimps edit their ads to evade law enforcement. “Until Congress sees fit to amend the immunity law, the broad reach … of the Communications Decency Act even applies to those alleged to support the exploitation of others by human trafficking,” wrote Superior Court Judge Lawrence Brown.
The judge is allowing prosecutors to proceed with money-laundering charges against Backpage, which is accused of illegally using shell companies to trick credit card firms refusing to do business with Backpage into processing the payments of its customers.
The company denied helping to craft any of the sex trafficking ads that landed on its site. It is fighting the money-laundering charges. Company officials declined to comment on the congressional effort it has inspired, directing a reporter instead to the opposition campaign mounted by the Electronic Frontier Foundation and the Center for Democracy and Technology — groups that receive substantial funding from big technology companies.
Almost every attorney general in the country wants the decency act changed to strip legal immunity for sites that condone or promote trafficking. Fifty of them wrote a letter to Congress a few weeks ago citing several horrific cases in which Backpage was used to traffic teenage girls. They warned the act has “resulted in companies like Backpage.com remaining outside the reach of state and local law enforcement in these kinds of cases.”
California Atty. Gen. Xavier Becerra said the site would have been shut down long ago if not for the immunity. “We would have been able to stop the abuse and in some cases the death of some of these young people who got caught up in these sex trafficking rings,” Becerra said.
Missing from the long list of sponsors of Portman’s bill is California Sen. Kamala Harris, who aggressively went after Backpage while serving as the state’s attorney general, and in 2013 joined colleagues in other states in signing a letter with the same demand state attorneys general sent Congress this week.
The hesitance of Harris and California Sen. Dianne Feinstein to sign on reflects how cautiously lawmakers close to Silicon Valley are treading.
The indictment Harris filed against Backpage last year was a memorable career moment, with a three-year investigation leading to the arrest of the company chief executive as he returned from a trip abroad, and a large raid on corporate headquarters in Dallas. But stripping immunity under Internet law from companies like Backpage is complicated business that could have unexpected fallout. Harris still wants the decency act changed, but appears unpersuaded that the Portman plan is targeted enough.
Other California lawmakers are also uneasy about it. Only a smattering of the state’s immense delegation has signed on to the House measure.
Among those opposing it is Rep. Ro Khanna, the former Stanford University economist now representing Silicon Valley in Congress. He is loathe to tinker with what he says is a pillar of the Internet economy. The protection online companies are given against illegal material that users lob on their platforms was foundational to the explosive growth of the industry, he said.
“It is a reason America dominates tech instead of Europe or China, where such immunity doesn’t exist,” Khanna said. He said he feared even a narrowly targeted tweak could be exploited by lawyers and activists to attack a broad range of Internet content they find objectionable.
Opponents also warn that stripping the immunity may merely force Web companies to less aggressively police their content, because knowing what illegal material is on their sites could increase liability under the proposed changes to the act. They say companies should instead be pressured to step up their enforcement efforts and innovation of anti-trafficking software.
Tech companies, one of the most dominant lobbying forces in Washington, have been caught off guard by the fight. It wasn’t long ago that there was scant support for changes to the immunity laws that Internet firms rely on, according to Eric Goldman, co-director of the High Tech Law Institute at Santa Clara University.
“This has moved faster than tech companies can even respond to it,” said Goldman, who argues that the measure would merely drive sex trafficking to places where it is harder for law enforcement to find and undermine the innovation economy in the process. “Can you come up with a topic more troubling to a legislator than sex trafficking? The argument that the bill may not solve the problem and actually create new problems is hard to make. Legislators are thinking, if it has a chance to help, why not try?”
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