The Supreme Court won’t hear a case brought by three sex-trafficking victims in Massachusetts who accused the website Backpage.com of helping to facilitate the abuse and exploitation of children.
The decision, announced Monday, leaves in place a lower court’s ruling that federal law protects websites from being held liable for content its users publish on the sites.
Like Craigslist, Backpage.com is a place where users can post classified ads selling things like bikes and children’s toys. But since Craigslist pulled the plug on its “adult” advertising section in 2010, Backpage has become a de facto hub for online prostitution, with a US Senate report saying the website now hosts 80 percent of all online sex ads.
The three Massachusetts women who sued said they were as young as 15 when they were sold as prostitutes on the site through advertisements posted in Massachusetts and Rhode Island.
They argued that Backpage effectively worked to shield traffickers from being caught by law enforcement by not employing technology that would better help identify and remove “escort” ads selling time with minors.
The appeal was brought by the Boston law firm Ropes & Gray. In 2015, Massachusetts Attorney General Maura Healey filed an amicus brief in the case, stating that sites like Backpage “knowingly and actively support human trafficking.”
Advocates from the National Center for Missing & Exploited Children say that 73 percent of the approximately 10,000 reports they receive on their tip line each year about possible child sex trafficking involve ads on Backpage.
Monday’s decision is something of a win for technology companies, many of which have used the federal Communications Decency Act of 1996 to protect themselves from legal actions involving illegal activity on their sites. They argue they are just hosting content, not creating it.
The decision of the US Court of Appeals for the First Circuit was “correct and completely consistent” with all previous interpretations of the law, said David Greene, director of the civil liberties division of the Electronic Frontier Foundation, which had filed an amicus brief to the high court in support of Backpage.
“We don’t support trafficking,” Greene said. “We support full enforcement of the laws. You just have to enforce them against the people who are breaking the law.”
John Montgomery, a former managing partner at Ropes & Gray, had been working pro bono as lead attorney on the case since it was filed in 2014. On Monday, he said he was disappointed by the Supreme Court’s decision not to hear the case, which would end the firm’s litigation against Backpage.
Lower-court decisions, he said, demonstrated that they saw congressional legislation as they best way to address child sex-trafficking.
“Both the District Court and the Court of Appeals were outraged by the nature of the conduct at issue here,” Montgomery said. “But they both viewed this as an issue that was appropriately addressed by Congress and not by the courts.”
“The courts have now spoken, and attention now needs to turn to the Congress of the United States, which needs to act,” he said.
Timing, on that front, is fortuitous. A Senate investigative panel is scheduled to reconvene Tuesday for the third time as it looks into Backpage’s role in facilitating child sex trafficking.
Legal actions against Backpage continue in other venues. A case in Washington state is scheduled to begin trial proceedings in May. And in one of her last actions as California’s attorney general, incoming US Senator Kamala Harris filed criminal charges against Backpage chief executive Carl Ferrer and other Backpage executives, alleging pimping and money laundering, on Dec. 23.
Yiota Souras, senior vice president and general counsel for the National Center for Missing & Exploited Children, applauded Ropes & Gray for furthering awareness of the issue.
“Sometimes this is just the way these cases work out, and really good cases don’t proceed,” she said. “To me, this is a big example of that.”