KEY STATUTES and LEGAL DECISIONS in the JANE DOE cases
TVPA: Sex trafficking, along with labor trafficking, is a “severe form of trafficking” under The Trafficking Victims Protection Act of 2000 (22 U.S.C. Section 7102, as amended). Child sex trafficking, in particular, is defined as “a commercial sex act… in which the person induced to perform such act has not attained 18 years of age.” For anyone 18 or older, sex trafficking is deemed to have occurred if “a commercial sex act is induced by force, fraud, or coercion.” The statute makes clear that the commercial exploitation of a child is a violation of the TVPA, whether or not force, fraud or coercion occurred.
Later amendments to the TVPA provide that child sex trafficking constitutes a federal crime (18 U.S.C. 1591). In addition, Section 1595 establishes that a victim of sex trafficking can bring a civil lawsuit for damages against anyone who “knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act” of sex trafficking. It is under Section 1595 that several children in Doe v. Backpage sued Backpage, alleging the company “participated” in a trafficking venture.
In Doe v. Backpage, Judge Richard Stearns dismissed the claims of the children, finding that because Backpage had acted as an online publisher, it was thus immune from all liability for third party content under Section 230 of the Communications Decency Act (described below). The children appealed their case to the 1st Circuit Court of Appeals, which expanded the protection of Section 230, finding that Section 230 required dismissed, even if Backpage had engaged in a trafficking venture in violation of the TVPA, a criminal act.
SECTION 230: Section 230 of the Communications Decency Act was was enacted in 1996 when the internet was in its infancy. The law was prompted by a lawsuit filed by Stratton Oakmont (a firm founded by Jordan Belfort and made famous by the Leonardo DiCaprio film, “Wolf of Wall Street.”) Stratton Oakmont had filed suit against Prodigy (one of the earlier internet message boards) because someone had posted a comment effectively stating that Stratton Oakmont had been manipulating stocks . Belfort’s firm argued that because Prodigy filtered content (but missed this post), that it should be responsible for third party content on its site, just like any other publisher. The court agreed and Belfort’s firm won.
In an attempt to protect fledgling internet companies from lawsuits for content posted or created by third parties, Congress enacted Section 230 which states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” There have been upwards of 300 Section 230 cases litigated over the past 20 years, the vast majority of which involve defamation. Although Congress intended for Section 230 to protect companies which try to filter content (but don’t catch everything), that protection has been expanded by federal judges to provide a website operator with full immunity, even if engaged in criminal conduct (as the 1st Circuit determined).
The issue of whether Section 230 should apply to dismiss claims against Backpage by children was also decided in two other cases. In 2010, a 13 year old child from St. Louis was advertised for sale on Backpage. The child’s mother recovered her daughter and then found that her daughter’s photos were still up on Backpage. She called Backpage repeatedly, asking for the photos to be removed. Dismayed by the refusal of the site to remove the photos, the child’s mother filed suit. That case, M.A. v Village Voice Media Holdings d/b/a Backpage was dismissed under Section 230 by a federal magistrate.
Only one decision was issued in favor of children who filed suit against Backpage. J.S. v Village Voice Media Holdings involved several underage children in Seattle who were advertised for sale on Backpage. The children argued that Backpage was involved in developing the content (by coaching traffickers/pimps on how to post and evade law enforcement). The case went all the way up to the Washington State Supreme Court, which found that the children had alleged sufficient facts to establish that Backpage had helped to develop content, and that the case should proceed to a trial. J.S. v. Village Voice Media Holdings, after 7 years of litigation, settled earlier this year.
As a side note, it is worth pointing out that Section 230 is only enjoyed by online publishers and does not cover “old media” (e.g., printed magazines, radio, and offline newspapers), which have to defend themselves from third party content lawsuits. Although some advocates of internet freedom argue that Section 230 is synonymous with the 1st Amendment, Section 230, at its core, is a mechanism to avoid the cost of defending lawsuits. Others have noted that Section 230 has given online media a distinct competitive advantage over old media.
As a further side note and in an ironic twist, Jordan Belfort later pled guilty to securities fraud.
The day after I AM JANE DOE was screened at a private event with members of Congress in Washington DC, Shared Hope and ECPAT hosted a congressional briefing about the issues in the film with Nacole, Kubiiki, Erik Bauer, Mary Mazzio and others from the film. Representative Ann Wagner (R-Missouri) promised she would introduce legislation to amend Section 230 so that it was clear that website operators alleged to be involved in federal crimes could not use Section 230 as a shield against liability. In April of 2017, Rep. Wagner filed a bipartisan bill in the House of Representatives (called FOSTA). A Senate bill, co-sponsored by Senators Portman, Blumenthal, McCaskill, McCain, Heitkamp and others entitled “The Stop Enabling Sex Traffickers Act of 2017” (or SESTA) was introduced in August of 2017. Google and tech lobby groups began vigorous opposition, including quiet efforts to press Section 230 protections into the North American Free Trade Agreement.
Shortly thereafter, a Senate Commerce Committee hearing was scheduled. Yvonne Ambrose, the mother of a child who was murdered at the hands of a Backpage buyer, testified before the Committee, in powerful and compelling terms, catalyzing momentum on SESTA in the Senate. Her captivating testimony can be watched here.
A few weeks later, FOSTA (the companion bill in the House) suddenly and inexplicably disappeared. In its stead, FOSTA was replaced with a flimsy Mann Act interstate prostitution bill (having nothing to do with updating Section 230), submitted by tech lobby groups (and likely intended as a poison pill.) A coalition of NGOs, survivors, advocates and non-profits responded with a packed Congressional rally, a PSA featuring Amy Schumer and Seth Meyers, and survivor-led meetings on the Hill. Two weeks later, Representatives Kevin McCarthy and Mimi Walters went to work with Ann Wagner, adding back the critical provisions to amend Section 230 which had been gutted. Now called FOSTA-SESTA, the House bill clarified that a website operator which “knowingly facilitated” the crime of sex trafficking would no longer have immunity for such crime under Section 230. In the final version of FOSTA-SESTA, the language relating to the Mann Act remained (inserted by the tech lobbies), providing that if a website had specific intent (a very high legal standard to meet) to facilitate the prostitution of 5 or more people, it no longer had the protection of Section 230. Despite vigorous efforts of Google-funded groups to derail this new bill, it passed the House of Representatives and the Senate with a vote of 97-2. On April 11, 2018, the President signed FOSTA-SESTA into law. Read the bill here.
As to Google’s role in supporting Backpage, a public interest group in California (Consumer Watchdog) exposed ties between Backpage and the Electronic Frontier Foundation (EFF) and Center for Democracy and Technology (both heavily supported by Google). Both groups actively intervened with expensive and lengthy “friend of the court” briefs in support of Backpage in several cases filed by Jane Doe children. Read the 49-page blistering report here and Consumer Watchdog’s letter to Google executives here.
The Campaign for Accountability recently released a report which unmasks Engine as a lobby group/front for Google. Engine has long claimed that it represents the interests of start-up companies (as opposed to the interests of Google or other large companies), but in fact, according to this new report, Engine works to advance the business goals of Google. The Intercept also wrote a thorough piece based around this report and the underlying hypocrisy of Engine.
Google and its funding ties to the EFF are also again on full display (and contested) in a new case before the US Supreme Court. The plaintiffs in Frank v. Gaos are now challenging a class action settlement where Google, instead of paying out individual shareholders a sum of approximately $5,000,000.00, directed that significant financial amount towards “charities” acting in the best interests of the plaintiffs (otherwise known as a “cy pres” award.) However, the five million dollars did not go to charities acting in the best interests of the plaintiffs. Instead, it was funneled to groups that advocate for and protect Google’s interests. According to an amicus brief submitted by Antigone Davis, the EFF received $1 million dollars. Hundreds of thousands of dollars were donated to other think tanks regularly funded by Google (which also advocate policy positions in support of Google’s business interests).
The EFF’s close ties to Backpage, which were under the radar for years, are now visible in plain sight with its most recent efforts to challenge the constitutionality of FOSTA-SESTA. The constitutional challenge is led by longtime Backpage attorney, Robert Corn-Revere, who is now representing the EFF in that matter.
Google and its various funded groups set their collective sights on trying to insert Section 230 protections into international trade agreements to blunt the impact of the new legislation. In September, the US Trade Representative announced that the trade agreement with Mexico would contain these Section 230 protections (insulting websites from liability for third party content). This announcement has caused great distress within the anti-trafficking community, as the trade agreement would now effectively “export the Backpage problem” to Mexico. A coalition of NGOs and survivors have come together and sent a letter of opposition to members of Congress as well as the White House.
Professor Mary G. Leary of The Catholic University of America wrote a law review article about Section 230 and sex trafficking, published by the Harvard Journal of Law and Public Policy: here.
NEW CASES and CASE UPDATES
United States of America v. Ferrer (Arizona)
On April 6, 2018, a 93-count criminal indictment was unsealed against Jim Larkin, Michael Lacey and 5 other key Backpage executives. Less than a week later, Backpage CEO Carl Ferrer entered into a plea agreement agreeing to cooperate with prosecutors in the criminal case against Lacey and Larkin (and assist federal authorities in the immediate shutdown of Backpage.com.)
In April of 2018, after Backpage CEO Carl Ferrer pled guilty, Backpage’s longtime law firm, Davis Wright Tremaine (DWT), attempted to withdraw as counsel for the company and Ferrer, opting to represent only the founders. Ferrer responded, demanding return of the $6.25 million retainer paid to DWT. On August 28, Michael Lacey and Jim Larkin, founders of Backpage, filed suit against Backpage and Ferrer, contesting the reclamation of this retainer.
On April 25, 2018, federal prosecutors filed a motion to disqualify Lacey and Larkin’s long-time law firms David Wright Tremaine (DWT) and Henze Cook Murphy (HCM). SEE: Lacey and HCM responses. DWT and HCM have bought sought to continue representing Lacey and Larkin, but not Backpage or its CEO, Carl Ferrer.
On August 17, 2018, Backpage Sales Director Daniel Hyer entered a plea agreement, stating that Backpage employees would use the term “models” in intra-company emails when referring to persons in Backpage ads who appeared to be underage.
Lacey, Larkin and five other Backpage executives, have all plead not guilty. The trial is scheduled for January 15, 2020.
Doe v. Backpage (Boston)
In January of 2017, the US Supreme Court refused to hear the appeal of Jane Does 1-3 in Doe v. Backpage in Boston. However, on June 12, 2017, John Montgomery and his team at Ropes and Gray filed a new lawsuit against Backpage on behalf of Jane Does 1-3 alleging that Backpage developed the content on its site and could not be shielded by Section 230.
On March 29, 2018, Judge Leo T. Sorokin dismissed the cases of Jane Doe 1 and 2, allowing only Jane Doe 3 to move to the next stage, a decision that flummoxed most who read it. Ropes and Gray moved to amend its complaint, immediately after passage of FOSTA-SESTA.
J.S. v. Village Voice Media Holdings, Backpage, et al. (Seattle)
On May 24, 2017, JS filed a response in opposition to Backpage, which included previously sealed depositions of certain Backpage executives, including CEO Carl Ferrer and a two-part deposition of Backpage’s General Counsel Liz McDougall.
In June of 2017, Backpage (having lost its argument that the case should be dismissed on the basis of Section 230), then filed a motion to dismiss for lack of evidence. The court found in favor of the children, and that case, which was scheduled for trial, was recently settled for an undisclosed amount.
K.R. v. Backpage (Alabama)
On January 25, 2017, a complaint was filed by a sex trafficking survivor against Backpage and Choice Hotels. Greg Zarzaur and his team of lawyers won a Motion to Remand (movement back to state court), defeating Backpage claims that the case should be transferred to federal court.
R.O., K.M. v. Village Voice Media Holdings, Backpage, et al. (Seattle)
On January 25, 2017, in Seattle, Plaintiffs R.O. and K.M., minor girls who were sold on Backpage, filed a complaint (by and through their mothers, against Backpage.
Doe v. Village Voice Media Holdings, Backpage, et al. (San Diego)
On January 25, 2017, in San Diego, 15-year Jane Doe filed a complaint (by and through her mother, S.B.) against Backpage.
XXXXXXXX v. Village Voice Media Holdings, Backpage, et al. (Dallas)
On January 25, 2017, in Dallas, Plaintiff XXXXXXXX, who was approximately 15 years old when she was sex trafficked on Backpage, filed a complaint (represented by Marc C. Lenahan).
Florida Abolitionist v. Backpage (Orlando)
In February of 2017, Florida Abolitionist, an Orlando-based anti-trafficking organization and Legal Momentum, represented by Boies Schiller, filed a complaint against Backpage. In March of 2018, the case was heard by Judge John Antoon II, who found that Section 230 would not require dismissal, but that the complaint was too vague. Plaintiffs were then granted leave to file an amended complaint.
Yvonne Ambrose v. Backpage (Chicago)
On May 17, 2017, Yvonne Ambrose, the mother of a 16-year old child who was killed at the hands of a Backpage buyer, filed a wrongful death action against Backpage. On March 23, 2018, Backpage filed a Motion to Dismiss.
The People v. Ferrer, et al. (Sacramento & Dallas)
In September of 2016, California attorney general Kamala Harris filed criminal charges against Backpage executives Carl Ferrer, Michael Lacey, and James Larkin for pimping.
On October 6, 2016, Carl Ferrer was arrested in Houston on the California warrant. Partaking in a joint investigation, Texas Attorney General Ken Paxton executed a search warrant on the Backpage headquarters in Dallas. Two months later, the case was dismissed by Sacramento County Superior Court Judge Michael G. Bowman.
In December of 2016, the California AG refiled a new action against Ferrer, Lacey and Larkin, alleging criminal charges for pimping and laundering of earnings.
In August of 2017, Sacramento County Superior Court Judge Lawrence Brown dismissed the pimping charges under Section 230 but allowed the money laundering charges to proceed.
Kocher v. Backpage, Hilton Holdings Inc., et al. (Portland)
In December of 2017, in Portland, a complaint in Portland was filed against Backpage and Hilton Hotels by the Estate of Ashley Benson, a woman who was trafficked and subsequently murdered by a Backpage buyer.
Doe v. Backpage, et al. (Houston)
Dart v. Backpage (Chicago)
In June of 2015, Sheriff Thomas J. Dart of Cook County wrote letters to Visa and Mastercard requesting that they cease and desist any credit card charges from Backpage. In turn, on July 21, 2015, Backpage filed a complaint against Sheriff Dart, assigned to U.S. District Court Judge John J. Tharp Jr.
On July 24, 2015, Backpage filed for a Temporary Restraining Order (TRO) against Dart, to stop his campaign to starve the company of major credit card transactions. The TRO was granted by Judge Tharp.
In November of 2015, the case was heard in front of the 7th Circuit Court. Read Judge Ricard A. Posner’s decision here.
On June 1, 2018, Judge Tharp dismissed Backpage’s lawsuit against Sheriff Dart in light of the recent seizure of Backpage and the indictment of its executives. Read the Cook County Sheriff’s Office’s Media Advisory.
Backpage v. Attorney General Joshua P. Hawley (Missouri)
On April 3, 2017, Missouri Attorney General Josh Hawley announced the beginnings of an investigation into Backpage, led by a new unit in his office tasked with prosecuting human traffickers.
On July 11, 2017, Backpage filed a complaint against Hawley for “unreasonable search and seizure,” citing the First, Fourth, and Fourteenth Amendments.
On July 16, 2018, Hawley filed a criminal contempt motion, seeking criminal and civil sanctions against Backpage for knowingly lying to a federal judge and using the 2017 lawsuit to deceive the court.
Constitutional Challenge to FOSTA-SESTA
On June 28, 2018, The Electronic Frontier Foundation (EFF) filed a constitutional challenge to FOSTA-SESTA. The EFF, funded by Google, continues to campaign to derails this legislation.
On July 12, 2018, The Department of Justice (DOJ), in a well-articulated response, filed a Motion to Dismiss.
On July 19, 2018, a hearing was held before the Honorable Richard J. Leon in the United States District Court, who did not grant injunctive relief to the EFF. Read the full transcript here.
RESOURCES ON CHILD SEX TRAFFICKING
There is no exact data on the breadth and scope of child sex trafficking in the United States. However, the National Center for Missing & Exploited Children reported that 1 in 7 runaways likely fell victim to sex trafficking in 2017.
Estimates suggest that between 500,000 and 2.8 million youth are homeless in the United States in any given year. AIR reports that in 2013, based on a calculation using the most recent U.S. Department of Education’s count of homeless children in U.S. public schools and on 2013 U.S. Census data 2,483,539 children experienced homelessness in the U.S. in 2013, representing one in every 30 children in the U.S.
Covenant House reports that in a prevalence study conducted by Fordham University, approximately 14.9% of the homeless young people (aged 18-21) served by Covenant House New York had experienced some form of trafficking before their time at the shelter. This same study also found that an additional 8% of its young people (aged 18-21) had engaged in survival sex and that shelter was the number one commodity traded in return for sexual activity. Of those who engaged in commercial sex activity, almost half – 48% in total – said they did it because they did not have a place to stay.
The U.S. Department of Health and Human Services reports that the recruitment of young people for trafficking commonly takes place online as well as in public places (e.g., around shopping malls, bus stops, or fast-food restaurants), around youth shelters where runaway and homeless youth are easily targeted, and in the vicinity of schools and group homes where children served by the child welfare system can be found.
The Kent School of Social Work at the University of Louisville reports that 40% of area homeless youth had been victims of sex trafficking, and 70% of the sex trafficked youth reported that technology was used as part of their sex trafficking victimization.
The Institute on Domestic Violence & Sexual Assault (IDVSA) at The University of Texas at Austin School of Social Work reports that there are an estimated 313,000 victims of trafficking in Texas, 79,000 of whom are minors and youths who are victims of sex trafficking. The study also found that an estimated $6.5 billion is spent on the lifetime costs of providing care to victims and survivors of minor and youth sex trafficking in Texas, including costs related to law enforcement, prosecution and social services.
Covenant House reports that, among homeless young people interviewed across 13 cities in the US and Canada, 15% were victims of sex trafficking (21.4% of women interviewed and 10% of men interviewed). The study also found that 26.9% of LGBT youth reported experiences consistent with the U.S. federal definition of sex trafficking.
Other statistics and reports:
LGBTQ youth are 7.4x more likely to experience acts of sexual violence than their heterosexual peers and are 3-7x more likely to engage in survival sex to meet basic needs, such as shelter, food, drugs, and toiletries.
Nearly two-thirds of children sold for sex in the United States are trafficked online.