Editorial: Kamala Harris’ futile attack on Backpage.com

The Internet has paid countless dividends to the public, speeding the pace of innovation, closing the distance between peoples and cultures, empowering individuals and opening wellsprings of information and knowledge. But there’s an undeniably ugly side to it as well, from hacking and intrusive data collection to harassment, trolling and a dark web of criminal activity.

A good example is the way prostitution and sex trafficking have flourished online. Analysts say much of the marketing and financial transactions for the sex trade have shifted from the street to the Internet — with the most popular venue for attracting clients being the online classified ad site Backpage.com.

Modeled after Craigslist, Backpage is a no-frills site that caters to a broad range of interests, with advertisements touting items for sale, services, job openings and events. It makes most of its money, however, from ads for adult services, many of which are barely disguised come-ons from prostitutes. The site’s name refers to its roots in the classified advertising operations of a weekly tabloid chain, which ran ads for adult services on the tabloids’ back pages.

Law enforcement agencies — which have used Backpage’s ads repeatedly to identify and prosecute prostitutes, pimps and sex traffickers — have tried several times to shutter the company and jail its executives, only to have the charges thrown out in court. That’s because of the broad immunity Congress provided in 1996 to online services that publish content submitted by their users. Under a section of law known as the Communications Decency Act, interactive computer services are not liable for content they host online if it’s supplied by someone else. This protection is based on an important principle: Responsibility for illegal content should rest on the people who create it, not on a general-purpose sites used to distribute it.

The act still leaves sites liable for the content they do create, as well as for any violation of federal criminal laws, including those against child sexual exploitation. But the shield it provides against federal civil suits and state and local laws has turned out to be vital for start-ups and potentially disruptive business models because it clearly delineates what a company will and will not be liable for.

Granted, Backpage’s critics aren’t so fond of the Communications Decency Act. In 2013, California Attorney General Kamala Harris and 46 other state attorneys general complained to Congress that the provision prevented state and local law enforcement officials from prosecuting companies like Backpage that profit from child sex trafficking. They urged lawmakers to repeal the part of the Communications Decency Act that provided immunity to state criminal laws, but the suggestion went nowhere.

That’s a good thing. Requiring online companies to scrutinize everything that their users post for compliance with umpteen ever-expanding state and local laws would impose a burden so daunting, it would effectively close the door to a wide range of online sites and services.

Instead, Congress amended federal law last year to make it illegal to advertise a commercial sex service or benefit from advertisements for such a service knowing (or recklessly disregarding the fact) that it involves a minor or a victim of human trafficking. According to the measure’s author, Rep. Ann Wagner (R-Mo.), the goal was “to end facilitation of sex trafficking by websites like Backpage.com.”

Not content to wait for federal prosecutors to use the new law against Backpage, Harris filed charges in September against Backpage’s chief executive and its two founders, accusing them of violating state pimping laws by building a business around advertisements by prostitutes and pimps. The election-year effort appears to be just as futile as Harris predicted it would be in her 2013 letter to Congress; on Wednesday, Superior Court Judge Michael Bowman in Sacramento tentatively granted Backpage’s motion to dismiss the charges, saying the company was protected by the Communications Decency Act. Instead of cutting the state’s losses, Harris has asked for more time to persuade Bowman to change his mind.

Stopping sex trafficking certainly should be a high priority for state and local law enforcement. Instead of testing the strength of the Communications Decency Act over and over, however, they should be working with federal prosecutors to try to build a case against those who knowingly provide a promotional platform for this exploitation. Meanwhile, lawmakers should consider changing the law to deny immunity to companies that alter the content on their sites or change their record-keeping to prevent law enforcement agencies from identifying those who post unlawful material, as some critics say Backpage does. The law should provide broad protection for neutral platforms, not for those that are fine-tuned to promote and profit from illegal acts.