Court Shelves Washington State Law That Would Turn Service Providers Into Criminals Based On Their Users' Behavior

from the good-move dept

Fri, Jul 27th 2012 6:31pm — Mike Masnick

Back in June, we wrote about a challenge -- from both the Village Voice's Backpage.com and the Internet Archive to a new law in Washington State, SB 6251, that effectively criminalized online service providers based on actions by their users. We've long talked about the problems of such secondary liability efforts, and thankfully the US has section 230 of the CDA that forbids most such efforts to apply secondary liability. And, indeed, the court has now granted a preliminary injunction against the law, citing the Section 230 issues, among other things. Basically, the court sides with Backpage and the Internet Archive on every issue here, finding the state's reasoning in support of the law to be weak.

There are some important points in this ruling. First up, the court said that Section 230 applied, even though this was about a criminal law issue, rather than a civil law issue. Many (even Section 230 supporters) have argued that Section 230 only applies to civil law. The court notes that the law says it doesn't apply to federal criminal laws, but says nothing about state laws. And, as such, CDA 230 should be seen to apply to state laws, even if they're criminal:

If Congress did not want the CDA to apply in state criminal actions, it would have said so.

So, the law is already on shaky legs due to it being knocked out by Section 230. However, the court goes further to focus on how the bill violates the First Amendment as well, targeting the suppression of speech. It's a pretty detailed explanation for how laws that target speech, rather than action, have a much higher bar, and this bill does not appear to meet that higher bar. Most importantly, the court recognizes that any laws targeting speech can have severe chilling effects, even on legal speech, and that's unacceptable under the First Amendment:

The most problematic aspect of SB 6251 is not the protected speech that it regulates by its terms, but the likelihood that it will chill a substantial amount of protected speech in addition to the unprotected speech that Defendants argue the statute was meant to address

The court even notes that it could create chilling effects and potentially criminalize sites like Facebook and Twitter as well. While the state denied this possibility, the judge points out that it's entirely possible to read the law in that way, and that alone could create chilling effects from companies trying to avoid criminal liability. Finally, the court notes that the law also almost certainly violates the Commerce Clause, because it would regulate companies located entirely outside of Washington State.

In other words, the state is on very thin ice here, as the court isn't buying any of its arguments for why the statute is legal. At this point in the case, the discussion is just over whether or not an injunction is granted to block the enforcement of the law -- and that's now done. There's still much more to come in the case, but the law doesn't look likely to survive at this point, and that's a good thing. There are some real issues that the law seeks to take on (mainly dealing with prostitution and child porn), but it does so in such a broad way and with the wrong tool: criminalizing service providers. It's good that the courts are recognizing how this law is massively overbroad.

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Filed Under: liability, section 230, service providers, washington state
Companies: backpage, internet archive

38 Comments

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Jacob Blaustein, 27 Jul 2012 @ 6:43pm

This ruling makes me feel all warm inside.
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Christopher (profile), 27 Jul 2012 @ 7:52pm

Sigh.... until people stop buying the "It's for the children!" argument I don't see these kind of overbroad laws disappearing from consideration.

What we really need is to realize that we don't need more laws heaped on top of older laws, those older laws usually cover what we need to make illegal quite well.
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Nom, 27 Jul 2012 @ 9:33pm

What good news. Though I don't like the reasoning used by the court in relation to the CDA being applied to state criminal actions.

It implies a lack of explicit instructions as intent. That is a dangerous line reasoning when it is far more likely that someone forgot some obscure scenario.
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Anonymous Coward, 27 Jul 2012 @ 9:45pm

Village Voice Media needs to remove human trafficking from its biz model....i've met a few survivors who were trafficked on Backpage. They are 12 and 13 years old. Its pretty fucked up that Backpage makes 27 million off of these adult ads - when it knows kids are being trafficked by pimps, yet they are held harmless for making money off of the platform they provide...Don't think congress ever intended to protect human trafficking when it wrote the CDA. The law needs to be tweaked.
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Zos (profile), 27 Jul 2012 @ 10:16pm

Re:
you know what happens if they're found liable? pimps go elsewhere, kids still get raped. like the great craigslist migration of last year or so.

Address the problem (pimps and underage sex slaves).

kicking the can down the line to somewhere further underground has never protected anyone.

Then they just end up on the TOR network somewhere. better to leave the low hanging fruit, so cops have something to do instead of busting stoners.
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Christopher (profile), 27 Jul 2012 @ 11:13pm

Re: Re:
People are just going to have realize, unfortunately, that underage and even overage sex slavery aren't going anywhere until society becomes much more sexually free than it is today.

Though, a lot of 'sex slavery' is women and men willingly getting involved in prostitution and the cops trying to say that they are being 'forced into it'.
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That Anonymous Coward (profile), 27 Jul 2012 @ 11:56pm

Re:
Did the survivors turn their pimps over? Did they testify to make sure they got long sentences?
Did you have anything to suggest the full 27 million comes from the sex trade of children, or was that just to make the issue look more evil?
Do you understand that the people yelling the loudest are often the ones who get a cut from lawsuits against the service providers?

Did you have anything to add to your moral outrage that Backpage and Craigslist were attacked by AG's who were more interested in headlines than protecting children?
That the lead AG was acting well outside the scope of his office, but did so to make headlines for his run for Congress?
That Craigslist was active in working with law enforcement, and still got screwed when they had a history of going above and beyond what the law required them to do.

Do you have any idea what happens when you force them off of the large platforms and they go deeper? Law Enforcement has a much harder time tracking them down and stopping them.

Your moral outrage is cute, but you seem to have only read 1 sides brochures.

People who traffic children for sex are vile and need to be caught.
Not everyone who puts up an escort ad is a child or forced to perform.
Company who sell bullets make money from people who might use them to kill others, we never intended that to happen.

Adding on the internet doesn't make it any different, if your not decrying every company who makes any object that someone can use for evil (BTW its EVERYTHING in the world) then your not applying your outrage evenly and thats wrong.

Someone driving a Ford built car committed a hit and run, under this law Ford would have to pay out money based on the actions of someone who drove a car Ford made.
Still say it makes sense?

Maybe instead of passing a crappy feel good law wasting time and money, they should have passed a law to make it easier for Law Enforcement to reach out to these service providers to locate and stop the bad people in their areas.
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Anonymous Coward, 27 Jul 2012 @ 11:56pm

Politicians Love Censorship
What is it about censorship that makes politicians continually try to pass pro-censorship laws? Worldwide, censorship is a standard tool of all tyrannies. Even the dimmest democratically-elected politician must be aware of that. They must know how bad it always looks to the electorate. Yet they wilfully trash their own futures in politics, in a futile attempt to restrict speech. How can it be that someone who fancies themselves as a politician has not bothered to acquaint themselves with the first amendment? How can they be so dumb? Do they not know that it will be held against them in all future elections?

You Americans seem to have an exceptionally dumb bunch of politicians in power. Come on, you American voters, do your duty.
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The eejit (profile), 28 Jul 2012 @ 1:39am

Re: Politicians Love Censorship
"I must not fear. Fear is the mind-killer. Fear is the tiny little death that obliterates all thought. I must let the fear wash over me, and around me and through me. Only I will remain."
-Bene Gesserit teaching, Dune, Frank Herbert (paraphrase)
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That Anonymous Coward (profile), 28 Jul 2012 @ 2:19am

Re: Politicians Love Censorship
This law was meant to make the public feel better.
The problem is because BackPages exists!!!!
Not because we underfund the police.
Not because we don't teach kids how to respect themselves and their bodies.
Not because we refuse to deal with sex work laws.
Not because we don't understand teh interwebs, and it sounds expensive to try and learn.
Not because we don't care if the problem stops, as long as it stops getting media coverage.
Oh and this law lets us collect a bunch of money we can use to do other meaningless things that get us reelected.

The prime example of why this happens is the TSA.
People screamed for something to get done, supported people being screened... because they believed they were "Good People" and this would never be used against "Good People".
Fast forward and now that the most ardent supporters are seeing their grandkids being felt up by adults they are starting to think it was a bad idea... but now we've committed billions to this, we can't stop it. We'll be unsafe, let spend more money to fix it.

These are knee jerk reactions turned into law, that solve nothing but earn points for politicians, when they really should be seen as black marks against keeping them in office. People want the fast answer, they don't want to hear that fixing a problem will take time and money. They want the wave of a pen to make it illegal and that will make it all stop.
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Josef Anvil (profile), 28 Jul 2012 @ 2:31am

Try it out
If they want to see how useful this law is, they should hold serivce providers responsible for criminal activity done over the phone. Once they realize that they will effectively be shutting down the internet to stop a "crime", it should sink in.

Maybe.
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That Anonymous Coward (profile), 28 Jul 2012 @ 2:35am

Re: Try it out
I thought it would be faster to just allow these lawmakers to be sued for creating platform that allows police forces to be formed, that way when a cop breaks the law we get to sue the lawmakers individually.
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Anonymous Coward, 28 Jul 2012 @ 6:34am

Re: Re:
unlike what Craigslist was to Backpage, right now there is no heir apparent to Backpage - Backpage is providing a platform for 80%of the online child sex trafficking happening currently. the thinking is that if they do the moral right thing and stop aiding and abetting, it will buy time for some type of a fix...
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Anonymous Coward, 28 Jul 2012 @ 6:53am

Re:
Like drinking hot coco or like seeing a basket of kittens?
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Anonymous Coward, 28 Jul 2012 @ 6:59am

Re: Re:
a bunch of stuff to respond to here - I'm going to go buy paragraphs to attempt to address your points
1) when the survivors are rescued,yes they attempt to turn their pimps over - and most are in jail - there are security concerns - some of the survivors i know are being stalked right now for example by their pimps. and yes, those that can testify. many of these girls have been through so much trauma it is difficult. i never said the 27 million comes from ads for children -its according to industry reports - comes from their sale of "adult ads" where the kids are trafficked. regarding the lawsuit stuff and getting a "cut" - that is completely false - the survivor groups out there and young survivors screaming the loudest get no "cut" of any lawsuit. this is a false accusation.

2) re the AG's - not sure how to answer - how do you know they were "more interested in headlines"? ag's from virtually every state in the nation have sent a letter to backpage because of kids being trafficked. why is this a problem? wow - i'm actually relieved they are looking out for kids. craiglist wasn't forced to do it - he made a move he found morally sound - and unlike backpage, adult ads aren't their biz model.

3) the difficulty is when mainstream websites like backpage and craigslist have ads for cars, toasters, baseball tickets and a child for sale. backpage is the number one platform. your argument is illogical - do we keep a crack house open in order to catch drug dealers?

4) i have no issue with adult ads - i have issue with minors and kids being trafficked.
5) not sure what you mean or how to answer

6) no one is saying that at all - i think the law is trying to ensure kids aren't being trafficked by instituting an age verification for those advertised. How on earth is this related?
7) that solves nothing - nevermind that most of the victims service providers are broke and that most law enforcemet lacks funding, the problem is that it doesn't solve the problem - there is no easy solution to this. I think folks are trying the best they can to protect kids from being trafficked.

All of your points are good and important to discuss - i guess i just feel some of these remarks are pretty snarky and devoid of human emotion. i suggest some of you go meet an 11 or 13 yr old who was trafficked on backpage. listen to their story and then tell me what you think. i would suggest you may have a different take on it. And who knows how you would feel if it was your sister, daughter, or child.
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abc gum, 28 Jul 2012 @ 7:11am

Re: Re: Try it out
Here is some secondary liability that might get their attention - hold "lawmakers" responsible for the unintended consequences of the laws that they vote for. This would include those fine folks who actually write our twisted legislation, ALEC for example.
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TtfnJohn (profile), 28 Jul 2012 @ 7:34am

Re: Politicians Love Censorship
ALL politicans like censorship. In fact, all of them love it. Not just American ones. The Brits just love any chance to censor anything remotely dealing with sex between adults much less what is being discussed here, for example.

In the end it's all backed, in cases like this, with the infamous "what about the children?" slogan and on it soldiers on.

We Canadians have politicians over fond of censorship as well, too. At least until it gets slapped down as unconstitutional.
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Anonymous Coward, 28 Jul 2012 @ 7:49am

Re: Re: Politicians Love Censorship
so frustrating - we aren't talking about censorship - we are talking about human trafficking. what part of that don't you understand?
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Anonymous Coward, 28 Jul 2012 @ 7:56am

a great read is here http://www.huffingtonpost.com/wendi-adelson/children-dont-belong-on-t_b_1663726.html

Tim Karr of Free Press also has an interesting take on this as someone who comes from the Internet Freedom movement....

�We need a free and open internet and we need to abide by the Communications Decency Act; but it is morally reprehensible when a company like Village Voice Media hides behind the false pretense of Free Speech to profit to the tune of $22 million a year, while it knows children are being bought and sold via advertisements on its site. Village Voice Media needs to remove human trafficking from its business model,�
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Matt Jones (profile), 28 Jul 2012 @ 8:28am

Re: Re: Re:
80% seems highly unlikely. Is there a citation for that number?
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Anon Cwrd, 28 Jul 2012 @ 8:33am

Re:
Bus and taxi companies also assist all sort of criminals. Let's make them pay!
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Anonymous Coward, 28 Jul 2012 @ 9:55am

Re: Re: Re: Politicians Love Censorship
We are talking about censorship here. The human trafficking isn't going to stop because you stop the ads, it will only move, making them harder to find. Legitimate ads will be stopped but the law breakers will just move on. Law enforcement should use this to find the folks attached. It seems to me passing this law just makes the ads go away and the traffickers harder for law enforcement to find.
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Anonymous Coward, 28 Jul 2012 @ 11:52am

Re: Re: Re: Re: Politicians Love Censorship
you are talking about censorship. I'm not. I'm talking about developing a system to make sure kids aren't advertised for sex on a website that, according to AIM, dominates the marketplace for online prostitution. a child cannot consent to sex, let alone forced prostitution. the ads pimps place on backpage are done with $50 gift cards that are bought at 7 Elevens, that are untraceable. VVM says that it wants to work with law enforcement to track own pimps and traffickers, yet they oppose a simple age verification to ensure that those being advertised are over 18. they also have not insisted that standard credit cards be used as opposed to the untraceable gift cards because that would decrease revenue to the site. Another poster above asked the question about the 80% figure - it comes from AIM and has been reported by Kristof among others.
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Anonymous Coward, 28 Jul 2012 @ 11:55am

Re: Re: Re: Re: Politicians Love Censorship
huh? legitimate ads won't be stopped as long as children and minors aren't being trafficked. again, this is a false accusation. also, no one believes this would "solve" the poblem of trafficking. but it sure as hell would put a dent into it by removing the biggest online platform in the us.
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The dude, 28 Jul 2012 @ 2:47pm

Re: Re: Re:
Lots of bitching, appealing to emotions, you are the kind of people who with the best intentions creates the greatest disasters.
(paraphrasing pulp fiction)
Smart and efficient solutions motherfucker!, do you have them?
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Anonymous Coward, 28 Jul 2012 @ 9:28pm

Re:
If this problem is something that Village Voice Media can just easily just "remove," it should be equally (if not more) easy for law enforcement to use it as the easiest arrest generator ever created.
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Atkray (profile), 28 Jul 2012 @ 11:53pm

Re: Re: Re:
"Backpage is providing a platform for 80%of the online child sex trafficking happening currently."

Should make thing a lot easier for law enforcement to find then.
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Anonymous Coward, 29 Jul 2012 @ 5:57am

Re: Re: Re: Re:
one would think - but unfortunately the pimps have untraceable throwaway phones and purchase the ads through untraceable gift cards. if VVM required standardized "credit cards", similar to when you try to rent a car, then law enforcement would have something to go on. But again, VVM doesn't want to do that, because it likely impacts their revenue. And now they sue when a simple age verification is put in place....here is a piece to provide some perspective and how it works http://www.nytimes.com/2012/03/18/opinion/sunday/kristof-where-pimps-peddle-their-goods.html
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Anonymous Coward, 29 Jul 2012 @ 7:21am

Re: Re: Re: Re: Re:
If the "customers" can find the pimps through Backpage as it currently works, then presumably so can law enforcement. Tactics to force them to be more exposed will only drive them to other sites, while at the same time driving away legitimate users who seek to maintain some degree of privacy and anonymity. Those legitimate users, by the way, are the the vast majority of the business you would effectively shut down.
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Anonymous Coward, 29 Jul 2012 @ 7:38am

i disagree that it would drive away legitimate users. if the user isn't a pimp trafficking a child or minor, than the user has nothing to worry about. im not talking about shutting down legitimate biz. i must say, however, that it is hilarious to me if the "legitimate biz" you speak of is prostitution...which, regardless of how you may feel about it, is illegal. its hilarious how vvm is using legal arguments to defend an illegal activity as it stands currently. personally, i feel that what happens between two consenting adults is private. my problem is that kids/minors can't consent to sex, let alone forced prostitution and backpage is the largest marketplace/platform for it in the usa.
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Not an Electronic Rodent (profile), 29 Jul 2012 @ 10:12am

Re: Re: Re: Re: Re: Politicians Love Censorship
yet they oppose a simple age verification to ensure that those being advertised are over 18.
Much like DRM, age verification is a fiction. Unless the proposal is for every potential advertiser to provide genetic samples that can be age verified (and I can think of a dozen ways around that too), then I'm not sure how a such a system would help, other than to give the appearance of "doing something about the problem" without the rather more costly solution of paying for enough professional law enforcement to be able to try.
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Anonymous Coward, 29 Jul 2012 @ 10:52am

what's your solution? should advertisers in the adult section have licenses and then provide evidence of their license while posting the ads? if you need a license to drive, perhaps you should have a license to traffic. right now there are no safeguards whatsoever/or way to track. would that work for you? no amount of money can combat this unless there is a way to trace, correct? unless im missing another solution....many folks here are some of the brightest online/internet strategists around...what's a solution? not sure if law enforcement has the resources to investigate 15,000 ads posted a week in the adult section on Backpage. i wish they did, but considering the economic crisis the country is in, apparently they don't.
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Anonymous Coward, 29 Jul 2012 @ 3:44pm

http://abcnews.go.com/Technology/wireStory/wash-teenagers-sue-backpage-16883037#.UBW8To48J8s
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Ninja (profile), 30 Jul 2012 @ 4:19am

Re: Re: Re: Re: Re:
You proved the point that making any company liable for the actions of its users will not solve the problem. Unless the company itself promotes and supports this kind of business.
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Pablo Neruda, 30 Jul 2012 @ 11:10am

censorship
New York Times
Bill to Restrict Web Content Is Assailed in Russia
By DAVID M. HERSZENHORN
Published: July 10, 2012

MOSCOW � Major Internet sites and human rights advocates sharply criticized a proposed law that would grant the Russian government broad new powers to restrict Web content, ostensibly to protect children from pornography and other harmful material.

http://www.nytimes.com/2012/07/11/world/europe/wikipedia-shuts-site-to-protest-bill-for-firewall -in-russia.html?_r=1&hpw
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That Anonymous Coward (profile), 30 Jul 2012 @ 11:02pm

Re: Re: Re:
I guess you are unfamiliar with the girls who came forward before Craigslist had dumped the ads and where threatening a multimillion dollar lawsuit against Craigslist.

The first AG to take up this popular cause was going to be running for Congress, the issue was outside the scope of his office and he would have been unable to bring a case as threatened.

Craigslist was actively working with law enforcement to stop the people trafficking in children, and when they shut it down there were Chiefs who spoke out about how this hurt their ability to stop them.

Craigslist pointed out that they hoped the next service provider would be as helpful to them.

It wasn't morally sound, it was being tired of being berated and publicly lashed by media looking for a story.
So their actions put more kids at risk in the end, they removed the ability for law enforcement to stop it.
How the hell is that a good outcome?

No one was directly offering children for sale, the ads were being checked as a result of the first grandstand attempt, but "FOR THE CHILDREN" is louder than logic.

The point was bullets are used to kill people, does this mean the bullet maker has liability when someone misuses the tool and hurt someone? That is what people are attempting to shovel onto BackPage, responsibility for bad people using the tool for bad things.

No they really don't give a hoot about the kids, they give a hoot about the headlines and soundbites it generates. If they cared about kids they would make money available for law enforcement to run stings and look for the people offering kids for sex. They would fund programs to help at risk kids from falling onto the streets, they would give them safe places to go. But instead lets force the company to make changes to make us feel better and accomplish nothing but make it harder to stop the sex trade.

They are snarky, but there is human emotion and compassion.

They forced many pedophiles into the deeper shadows online, they have no idea how to find them. Anonymous showed them where they were and no one did anything, so Anonymous cracked it open on the Darknet. The FBI missed their own agent who was trading in kiddie porn.

This is about doing something big and showy, not about any real change making the world better. People have been trafficking in children online for a long time, every giant push to make it stop and chasing providers has lead them to get better, more secure, and well hidden from the eyes who should be looking for them.

We have departments with tactical assault vehicles and massive amounts of weaponry to protect small towns with no need of that type of equipment, but not a single clearing house for information on people trafficking kids and training on how to find them online.

I'm for real solutions to the problem, not hanging the blame in a big showy press conference and declaring "Mission Accomplished".

Everyone wants to ignore what BackPage has done and continues to do. They assist in investigations and provide information, that catches the bastards pimping out kids. If you drive those people off BackPage they will move elsewhere, and how many kids will be abused until someone figures out where they went?
There isn't an easy solution tied up with a pretty bow that will make this better, but declaring war on BackPage will result in more kids being abused with no one watching.
Pushing them out of sight doesn't stop the pimps or the johns, and seems way worse.
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Tex Arcana (profile), 11 Dec 2012 @ 11:02am

Re: Re:
More like tossing OOTB off a cliff...
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Tex Arcana (profile), 11 Dec 2012 @ 11:05am

Re: Re:
yeah, think of all those poor innocent stoners that would be harassed by those bored cops!!
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