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Originally published July 19, 2012 at 9:01 PM | Page modified July 20, 2012 at 6:04 AM

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New state law targeting sex-related ads on websites faces court test

Legal experts say it's a fascinating topic with an uncertain outcome that pits a robust Internet and free-speech rights against the state's interest in preventing human trafficking and the sexual exploitation of children.

Seattle Times staff reporter

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A Seattle federal judge will hear arguments on Friday in a lawsuit that could determine the fate of a new state law aimed at preventing juveniles from being advertised for sex on websites like Backpage.com.

The online advertising site owned by Village Voice Media has come under fire nationally for publishing thinly veiled ads for prostitution advertised as "escorts," including ads depicting underage girls who typically pose in lingerie and heels, with accompanying text that leaves little doubt about what's being offered to buyers.

In response, the Legislature last session unanimously passed SB 6251 creating the new crime of "advertising commercial sex abuse of a minor," a Class C felony. To defend against prosecution, a website must prove it made a good-faith attempt to determine the true age of an advertiser before publishing an ad by requiring government ID and keeping a copy of the ID on record.

Under federal law, however, Internet service and content providers can't be held liable for content posted by their users. Last month, U.S. District Judge Ricardo Martinez granted Backpage.com's request for a temporary restraining order to prevent the law from taking effect June 7. On Friday, Martinez will hear arguments brought by Backpage.com against Washington state Attorney General Rob McKenna and the state's prosecuting attorneys asking that the law be struck down.

Backpage.com has a powerful ally in its lawsuit: The Internet Archive, which collects, indexes and archives snapshots of content from across the Internet, was granted intervenor status in the suit earlier this month.

Legal experts say it's a fascinating topic with an uncertain outcome that pits a robust Internet and free-speech rights against the state's interest in preventing human trafficking and the sexual exploitation of children.

Backpage.com attorneys have argued in court filings that the law violates Section 230 of the 1996 federal Communications Decency Act (CDA), which grants Internet content and service providers broad immunity from liability for content posted by third parties.

It also challenges the law under the First and Fifth amendments, along with the commerce clause in the Constitution.

Backpage.com argues that SB6251 would force websites "to become the government's censors of users' content" and would place an incredible burden on the company to review every bit of third-party content, as well as obtain and maintain records of individuals' ID.

"These obligations would bring the practice of hosting third-party content to a grinding halt," according to Backpage.com's legal suit.

McKenna's office has countered that SB 6251 is consistent with the CDA in that it impacts only speech not protected by the First Amendment, and that the law is neither vague nor overly broad.

Arguing that the CDA "is a shield, not a sword," the Attorney General's office contends that "SB 6251 is a valid, necessary tool to combat a pernicious problem," according to the state's legal response to the Backpage.com suit.

While the online company has asserted that it already takes pains to prevent abuses by automatically filtering ads and conducting manual reviews of content, the state says those efforts are woefully inadequate — and point to a recent Seattle police investigation as proof.

Seattle Detective Todd Novisedlak contacted Backpage.com in June to remove an ad after he verified that it featured a 15-year-old girl engaged in prostitution.

The ad was removed, but over the next two weeks, 10 more ads were posted for the same girl, using the same photos and phone number used in the original ad, the detective said in a sworn declaration filed in court.

Novisedlak has been involved in more than 1,200 prostitution investigations, but has never encountered any person "posting advertisements on the escorts section of Backpage.com who was advertising for legitimate escort services," according to his declaration.

How the lawsuit plays out in Washington could have national ramifications: According to legal briefs filed by Backpage.com attorneys, a law similar to SB 6251 will soon take effect in Tennessee, and state legislators in New York and New Jersey "are considering analogous bills."

Jennifer Granick, the director of Civil Liberties at the Stanford Law School's Center for Internet and Society, doesn't think Washington has much of a shot at prevailing in court.

"I think it's a losing battle," she said, noting that "prostitution exists on every site on the Internet," including Gmail, Twitter and Facebook.

"Congress was doing something right in (Section) 230," Granick said.

While it may feel "counterintuitive to people, particularly in circumstances like this where you have unsavory facts," Granick said the federal statute allowed for "immense economic and creative productivity" on the Web and liberated Internet creators "from the obligation to monitor, filter and censor communications by their users."

While an ad posted by a pimp for purposes of prostitution is still considered illegal speech, Granick said Backpage.com's "escort" section "describes legal activity."

"The fact people misuse it like Facebook or Twitter or the street corner ... doesn't necessarily impose liability on the platform," she said.

Last summer, a federal judge in Missouri dismissed a lawsuit brought by a 14-year-old girl, whose pimp advertised her on Backpage.com.

She argued Backpage.com was liable for facilitating her exploitation and that the company, who profits from the ads, is aware minors are sexually trafficked on the site.

Though sympathetic, the judge concluded it was up to Congress — not the courts — to change the policy that gave rise to the immunity for sites like Backpage.com.

Pointing out that it's been 16 years since Congress passed the CDA — an eternity in the lifetime of the Internet — professor Clay Calvert of the University of Florida in Gainesville questioned whether Congress should "go back to the drawing board and carve out some exceptions" to Section 230.

Offering the pornography industry as an analogy, Calvert said the federal government requires producers in the adult-entertainment industry to verify ages of performers and keep records of their IDs — measures meant to combat child pornography.

"Prostitution and erotic services are an age-old problem," said Calvert, a member of the California bar who has written about the CDA, the Internet and sexually-explicit speech. "Right now, technology has created a twist on that age-old issue with which lawmakers are struggling to play catch up.

"... Technology is really the game changer," he said. "The bottom line is it's hard to predict what will happen."

Judge Martinez is expected to take the matter under advisement and rule at a later date.

News researcher Miyoko Wolf and reporter Mike Carter contributed to this report, which includes information from Times archives.

Sara Jean Green: 206-515-5654 or sgreen@seattletimes.com

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