Backpage, Washington State Lawyers Grilled on Business, Legislative Choices

The Internet Archive, which claims its Web-crawling activities could run afoul of the state law targeting sex ads depicting minors, also made its case for standing at the hearing. A lawyer for the state suggested the Internet Archive might not even fall under Section 230 -- a prospect the site’s lawyer said argued even more for its standing.

Why not just get rid of the adult classifieds section, U.S. District Judge Ricardo Martinez asked point-blank to Backpage lawyer Jim Grant of the Davis Wright firm: “Isn’t that what Craigslist did?” That happened because of “pressure” from state attorneys general to Craigslist, but as a result sex ads for minors “moved to other portions” of Craigslist and other websites, Grant said. The Legislature “fundamentally misunderstands the nature of the Internet” and of user-posted content, and the law would be like demanding bookstores “go through their entire inventory” to root out obscene material, he said.

The Legislature “made it clear” it passed SB-6251, now subject to a temporary restraining order, to compel Backpage to do the same as Craigslist, Grant said. Martinez agreed. But the law is “ill-conceived” and creates “perverse” incentives, namely encouraging websites not to monitor user-posted content so they don’t have the requisite knowledge to block illegal content, Grant said. Backpage prefers the approach taken by California Attorney General Kamala Harris, who convened a human-trafficking task force that includes tech-industry representatives, he said.

"Is it the court’s responsibility” to interpret state law to avoid constitutional questions when possible? Martinez asked. “There are limits to that proposition,” because the court can’t rewrite the law or interpret it contrary to its “face,” Grant said. But the CDA is a “shield, not a sword” that provides only an “affirmative defense” once a party is prosecuted, Martinez said, quoting the state’s opposition to Backpage’s injunction motion (WID July 16 p1). The 9th U.S. Circuit Court of Appeals in San Francisco, which oversees the Seattle district, and four other federal appeals courts have disagreed and said Section 230 provides “express preemption” of state law, Grant said.

The law is also confusingly phrased, Grant said: The state has said it requires “scienter,” or knowledge, that all elements of a classified are illegal to trigger criminal liability, except for the age of the minor depicted in the ad. But the use of “or” as a conjunctive following “knowingly” in the scienter section could also be interpreted to apply to the age of the minor, he said. Either way, the U.S. Supreme Court has said possession of obscenity without scienter across all elements is not criminal, Grant said. The law also encompasses a “great deal” of protected speech such as dating websites, he said: States that regulate and tax escort services “would be quite surprised” to hear Washington’s claim that escort ads such as those on Backpage are just thinly veiled prostitution.

The Internet Archive’s “behavior falls within the plain language” of SB-6251, said its lawyer, Matt Zimmerman of the Electronic Frontier Foundation. He was responding to Martinez’s concession that he doesn’t understand the Internet Archive’s Web-crawling process. The state law takes a “scattershot approach” that goes beyond “direct publishers” to encompass even indirect dissemination, such as by ISPs or, theoretically, “display or phone manufacturers,” Zimmerman said: The state’s remedy sounds eerily close to the “hashing” database the copyright industry has suggested to halt piracy.

The CDA is meant to “take the intermediaries out” of potential liability, Zimmerman said. So the issue is “more of a national or even global problem” than something state law can address, Martinez responded. The practical effect of laws like SB-6251 is to create “a race to the bottom” for content providers, who must change their policies to satisfy the most restrictive laws among states, while encouraging illicit content providers to move offshore or encrypt their activities, Zimmerman said.

Sex trafficking of minors is a “local problem” that requires a “local solution,” said David Eldred, senior deputy prosecuting attorney for Seattle’s King County. Whereas prostitution used to be a “street-level crime,” now “pimps” for minors “get up and running in five minutes” on the Internet and leave a geographic area before law enforcement can track them down, he said. The 9th Circuit has said the CDA preempts state law only to a “very specific extent,” and the Supreme Court has said a law with valid applications can’t be struck down on its face, he said.

The law’s requirement that a classified ad include a “depiction” of a minor to trigger liability drew Martinez’s interest. It’s possible for an ad to swap in a photo of an 18-year-old while offering an encounter with a 15-year-old, and not trigger liability, the judge said. “You can think of scenarios that are not going to be captured” by SB-6251, but the reality is “photos are included” in Backpage sex classifieds, Eldred said. Asked by Martinez why the Legislature didn’t just outlaw escort ads, given the state’s position that they are prostitution in all but name, Eldred said: “That’s a public policy choice that they've made,” the same way the state focuses on punishing marijuana use by minors despite its widespread use by adults.

"If the problem goes offshore, the state can’t do anything about it,” and it also appears that “no actual commercial sex act has to take place” for liability to occur, Martinez said. He asked whether the state could prosecute someone in Oregon who posted a sex ad for a minor to be fulfilled in neighboring Washington. That’s unlikely because prostitution is typically offered and delivered in the same place, Eldred said. Backpage can avoid all the hassles of the law simply by requiring identification for its Backpage ads, he said. Seattle Weekly requires in-person identification for print escort ads. It’s not likely the law would affect Facebook or Twitter because, though they might carry sex ads depicting minors, “they're not doing what Backpage is doing” -- knowingly running thinly veiled prostitution ads, Eldred said.

Senior Assistant Attorney General Lana Weinmann conceded the law specifically targeted Backpage, but “Backpage has made themselves the target because they profit heavily” from escort ads, which are de facto prostitution ads. Martinez returned to his “euphemism” line of questioning about why the Legislature invited a vagueness challenge rather than outlawing escort ads. Ads offering minors are “more pernicious,” and the same language claimed vague in SB-6251 is used in other state criminal statutes, Weinmann said.

Police and juries know the “common meaning” of terms like an “implicit” offer of sex even if the Internet Archive wants the term defined in the law, Weinmann said. She referred to Supreme Court Justice Antonin Scalia’s stated distaste for “fanciful hypotheticals” in so-called overbreadth challenges. Martinez summarized Weinmann’s argument by citing another famous Supreme Court quote -- “I know it when I see it,” written by Justice Potter Stewart concerning the definition of pornography. Backpage can’t claim irreparable harm from the law, simply “business challenges” in implementing regulations similar to those applied to tobacco and alcohol advertising, Weinmann said. It’s “ludicrous” to claim the law encourages websites to be willfully blind to sex ads featuring minors because the affirmative defense requires them to act “reasonably,” and it’s in Backpage’s commercial interest to “compartmentalize” sex ads in one place, rather than letting them migrate to less-visible parts of its site, she said.

The Internet Archive’s business isn’t implicated because it doesn’t “knowingly” publish sex ads and the pages it crawls don’t show up for six to 24 months after crawling, so it’s not clear the CDA even applies to the organization, Weinmann said. That provoked a rebuttal from Zimmerman, who said the state’s new interpretation of the CDA gave the Internet Archive an “independent interest” in the case -- what the boundaries of Section 230 are. Washington wants to create a “backdoor notice and takedown regime” like that in the U.S. Digital Millennium Copyright Act but which is expressly prohibited in the CDA, he said. The state doesn’t deny it has prosecutorial discretion, and “who’s to say one of the near 40 defendants” -- mostly county prosecutors -- won’t pursue the Internet Archive for crawling a sex ad featuring a minor, Zimmerman said.

Martinez called the legal argument “fascinating” for “legal geeks” like himself and noted that suppressing sex ads for minors was “like trying to keep frogs in a bucket.” He told parties he expected to rule on the injunction motion by Friday.