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Washington State Attorney General, county prosecutors file response to Backpage suit

Olympia, WA|Heroes & Activism|Add Comment
By: State of Washington Attorney General's office
Washington State Attorney General Rob McKenna

Washington State Attorney General Rob McKenna and county prosecutors from around the state this week filed their response to a lawsuit from online classified site Backpage.com.

“Attorneys for Backpage claim to be allies in the fight against human trafficking, yet they’ve filed a lawsuit to stop a law shielding kids from being sold for sex,” said McKenna. “Among several claims in their lawsuit, Backpage tries to hide behind the Constitution. But commercial sex acts with kids are illegal and ads for such crimes are obviously not protected by our founding documents.”

Washington state this year passed a law, SB 6251, adding new penalties for posting sex ads featuring kids. The law provides a built-in defense for sites that check IDs before allowing individuals to post so-called “adult services” ads. King County Prosecutor Dan Satterberg, arguing on behalf of most of the state’s prosecuting attorneys, says the law is consistent with federal law and the U.S. Constitution, and is badly needed.

“Our office prosecutes heartbreaking cases involving kids abused by pimps and johns,” said Satterberg. “In many cases, the ads are traced directly back to Backpage. We need this new law, which is carefully written to target the small number of sites such as Backpage, which profit from the sale of human beings, including kids.”

The brief, filed in the United States District Court of Western Washington, also points out that organizations such as the Internet Archive, which intervened in the case, are not subject to the new law because it is narrowly tailored to target sites that knowingly publish and profit from prostitution ads. The Internet Archive provides free access to historical materials collected from other websites, and unlike Backpage, does not charge five dollars and up to post ads for illegal prostitution.

In addition to Constitutional arguments, Backpage claims they are protected by the federal Communications Decency Act (CDA).  But the brief filed Tuesday argues that the CDA provides only immunity from lawsuits and does not prevent the enforcement of a state criminal law.  According to the brief, “Section 230 of the Communications Decency Act is a shield, not a sword, and it cannot be used offensively in a case that is not an application of SB 6251.”

As part of the brief responding to Backpage’s lawsuit, Satterberg’s office submitted an affidavit from a detective with the Seattle Police Department. The detective is following an investigation involving a 15 year-old girl featured on Backpage. According to the affidavit, Backpage allowed ads featuring the girl to be posted ten times in a two week period following the filing of their lawsuit against Washington state –including after they were warned the girl is a minor.

“Backpage warns that if they close their ‘adult services’ section, prostitution ads — and presumably ads featuring kids — will move underground,” said McKenna. “Apparently Backpage wants to keep the ads above ground where they may continue to profit from them.”

Today McKenna’s office announced that in the past three years, media outlets from 31 states have reported on cases of more than 150 minors who have been posted for sale on Backpage. McKenna’s office points out that these are only the arrests reported in the press and are likely just the tip of the iceberg -- a disturbing glimpse of what else could be happening on Backpage.

Tennessee, which is also being sued by Backpage, also passed a law to protect kids from being sold for sex online. Public Charter 1075 (PDF) makes it a Class C Felony to knowingly sell an advertisement “that would appear to a reasonable person to be for the purpose of engaging in a commercial sex act with a minor.”

Washington state’s case will be heard on July 20 at 1:30 pm by U.S. District Court Judge Ricardo S. Martinez.

More information:

Response brief filed by Washington AGO and prosecuting attorneys (PDF)

Declaration of Seattle Police Investigator Todd Novisedlak (PDF)

Declaration of Washington AGO Forensic Investigative Specialist Rebecca Hartsock (PDF)

Declaration of Assistant Attorney General Paula Selis (PDF)

Declaration of Assistant Attorney General Lana Weinmann (PDF)

Declaration of Seattle Police Sergeant Ryan Long (PDF)

Arrests involving minors posted for sale on Backpage (Microsoft Excel Spreadsheet)

Contacts:

Dan Sytman, AGO Deputy Communications Director, (360) 586-7842

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