KEY STATUTES and LEGAL DECISIONS in the JANE DOE cases
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 the Jane Doe children have filed suit against Backpage, one of the largest online destinations for commercial sex.
In Doe v. Backpage, the Jane Doe children allege that Backpage “participated” in a trafficking venture. However, the judge found that Backpage had acted as an online publisher and was thus immune from liability for any third party content posted on its site under Section 230 of the Communications Decency Act (described below). The children appealed their case to the 1st Circuit Court of Appeals, which found that even if Backpage had engaged in a trafficking venture in violation of the TVPA, Section 230 still required the case to be dismissed. In short, the 1st Circuit determined that Section 230 trumped the TVPA, and in so doing, expanded the broad immunity of Section 230 to now cover conduct as opposed to third party speech.
Section 230 of the Communications Decency Act (“Section 230”). Section 230 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 and were crooks. 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. The court agreed and Belfort’s firm won. In an attempt to protect new 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 full immunity for online content, even if that content was encouraged by an online operator. And even if the website, in acting like a publisher, violated another criminal statute. As stated above, the 1st Circuit Court of Appeals determined that even if Backpage had participated in a sex trafficking venture (a criminal violation of the Trafficking Victims Protection Act, described below), Section 230 required a dismissal. The court stated that the children needed to seek a legislative change.
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 case has been decided in favor of children who have 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 Backpage did not “merely host” the ads, but alleged sufficient facts that Backpage had helped to develop content, which should be determined at trial.
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 and 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. Which meant that the posting on the Prodigy site was actually true.
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 alleging that company executives were actively involved in participating in the crime of child sex trafficking.
On May 17, 2017, Yvonne Ambrose, the mother of a 16-year old child who was sold for commercial sex on Backpage and then killed at the hands of her Backpage buyer, filed a wrongful death action in Chicago against Backpage.
In June of 2017, Backpage argued that the Seattle case (JS v Village Voice Media Holdings, Backpage, et al) should be dismissed for lack of evidence. The court found in favor of JS and that case will go to trial in October of 2017.
In August 2017, Sacramento County Superior Court Judge Lawrence Brown dismissed the pimping charges brought against Carl Ferrer, James Larkin, and Michael Lacey (the principals of Backpage) under Section 230, but allowed money laundering charges to proceed in the state criminal case brought by the California Attorney General.
In August 2017 in Alabama, Greg Zarzaur and his team of lawyers won a Motion to Remand (back to state court), defeating Backpage claims that the case should be transferred to federal court. This case was filed by a sex trafficking survivor against her trafficker, Backpage, and Choice Hotels. See more on the case here.
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. Representative Ann Wagner (R-Missouri) promised that 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. A Senate bill, co-sponsored by Senators Portman, Blumenthal, McCaskill, McCain, Heitkamp and others entitled “The Stop Enabling Sex Traffickers Act of 2017,” was introduced in August of 2017. Google and tech lobby groups have begun vigorous opposition, including quiet efforts to press Section 230 protections into the North American Free Trade Agreement.
Inspired by the film, a public interest group in California, Consumer Watchdog, was motivated to research ties between Backpage and the Electronic Frontier Foundation and Center for Democracy and Technology (two internet freedom groups supported by the tech industry), which have actively intervened 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.
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 5 runaways in 2015 were likely sex trafficking victims, up from 1 in 6 in 2014.
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.
Convenant 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.