Backpage.com, a classified webpage service similar to Craigslist, sued the state of Washington this week claiming that a Washington law attempting to reduce sex trafficking of minors could have the unintended effect of shutting down websites that allow their readers to post content. The law prohibits anyone from “advertising [the] commercial sexual abuse of a minor if he or she knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act” that takes place in Washington state and includes the depiction of a minor.
The law’s goal of protecting children from sex trafficking is laudable, but its language is sufficiently ambiguous that a judge could read it to target website owners that allows users to post ads that aren’t reviewed by the site’s owners. The law does provide a defense for website owners who “made a reasonable, bona fide attempt” to check the age of the person depicted in the advertisement prior to publication. But if the law is read too expansively, it could endanger any Backpage-like site that allows open submissions of advertisements.
Backpage’s complaint claims the law is also unconstitutional:
[The complaint] argues that the law is unconstitutional for several reasons, namely that it allows a site to be held “criminally liable for online content, whether they were aware of the content or not.” . . . Perhaps most significantly, the filing points out the potential breadth of the law’s application: It holds even “social networking sites like Facebook, Twitter and YouTube, search engines like Google, Bing and Yahoo!, and hundreds of others [online service providers], criminally liable for online content, whether they were aware of the content or not.”
Other states appear to be following Washington’s example. A similar law will soon take effect in Tennessee, and New York and New Jersey are considering similar laws. Depending on how the law is interpreted by courts, the ability of many kinds of sites, including social network and news publishers, to publish third party content may be threatened. With penalties up to a year in prison and/or a fine up to $10,000, the effect of the Washington law and others like it on sites that carry third party content could be substantial.