Backpage Seized by DOJ After Sex Trafficking Law PassesPublished: Apr 13, 2018 in Sex Crimes
On April 6, 2018, federal authorities shut down Backpage.com, a website that had grown notorious in recent years for hosting online ads for sexual services. The Federal Bureau of Investigation (FBI) raided the homes of the site’s founders, and a grand jury indicted seven Backpage employees with 93 criminal counts, including charges of facilitating prostitution and money laundering.
Last year, Backpage.com removed its adult section, but sex workers simply moved their ads to the site’s personals section. Some of the sex workers whose services were offered on the site were the victims of sex trafficking. Backpage.com claimed that they assisted authorities in identifying and rescuing such victims, but the federal indictment accuses the website’s staff of willfully assisting site users who were engaging in underage prostitution and sex trafficking.
Congress Has Removed Some Legal Protections for Ad and Content Hosting Websites
On the day of the arrests, Senator John McCain’s office condemned Backpage while applauding a “historic effort in Congress to reform the law that for too long has protected websites like Backpage from being held liable for enabling the sale of young women and children.”
The historical effort being alluded to is the Stop Enabling Sex Traffickers Act (SESTA), which has weakened the immunity afforded to websites for the potentially illegal content posted by their users. Section 230 of the Communications Decency Act of 1996 allows federal criminal charges to be brought against such websites, but it has been interpreted as creating immunity from state criminal charges and some civil suits. SESTA would make sites such as Backpage.com vulnerable to prosecution by state prosecutors.
Additionally, SESTA makes it a federal offense to use or to operate a website with the intent to facilitate or promote prostitution. SESTA also creates an aggravated felony that applies to sites that recklessly disregard the fact that, by promoting or facilitating prostitution, they are contributing to sex trafficking activities.
The Stop Enabling Sex Traffickers Act has not yet been signed into law, so the seizure of Backpage.com was not directly related to the new legislation. According to Berin Szóka, the President of TechFreedom, the “domain seizure makes clear that law enforcement agencies didn’t need a new law to shut down Backpage; they had plenty of legal tools and just needed to make it a priority.”
It may not be law yet, but the effects of SESTA are already being felt. The website Craigslist.org, which also hosted ads for sex workers, closed down its personal ads section shortly after Congress passed SESTA. The message is clear: websites may be held accountable when they provide a platform for illegal activity. However, there are serious concerns about the legislation’s legality.
SESTA May Be Unconstitutional
Ignoring recommendations from the Department of Justice (DOJ), the House of Representatives rushed to pass SESTA. They even bypassed the process of having the bill considered by the Judiciary Committee. As a result, the final version of the bill contains vague language that could interfere with a federal prosecutor’s ability to build their cases. Even worse, some provisions within the bill may be unconstitutional.
As explained in a February 18 letter from the DOJ to the Chairman of the House Judiciary Committee, SESTA will “impose a punishment for an act which was not punishable at the time it was committed,” which potentially violates the Ex Post Facto Clause of the Constitution. The letter contains several suggestions for amending the bill’s language, because as written, SESTA “creates more elements that prosecutors must prove at trial,” which could make it harder to bring sex traffickers and their enablers to justice.
SESTA also faces opposition from civil liberties groups such as the ACLU, who view the bill as an unnecessary attack on the right to free speech. And sex workers advocacy groups such as the Sex Workers Outreach Project fear the SESTA will push the prostitution marketplace further underground, where nonprofits and law enforcement will only have limited ability to intervene and protect sex trafficking victims.
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