Last month, the U.S. Department of Homeland Security seized another website, CityXGuide.com, that was used for online prostitution and sex trafficking advertisement. The owner of the website, Wilhan Martono, was indicted on several counts including, “promotion of prostitution and reckless disregard of sex trafficking, interstate racketeering conspiracy (facilitating prostitution), interstate transportation in aid of racketeering, and money laundering.” According to the indictment, the owner allegedly made more than $21 million from promoting sex-related ads on his website.
Two years ago, a similar website, Backpage.com, was taken down by federal authorities for allowing sex ads that promoted prostitution and sex trafficking under its “adult services” listings. The FBI found that just one day after shutting down Backpage.com, CityXGuide.com emerged to “take[] over from where Backpage left off.”
A report by the United States Senate Permanent Subcommittee on Investigation found that Backpage knew that it was facilitating prostitution and sex trafficking. The investigation revealed that the website systematically altered its adult ads by specifically instructing its staff to edit the texts “to conceal the true nature of the underlying transaction.” This included deleting any words, phrases, or images that were indicative of criminal activity, specifically child sex trafficking. As an alternative, the website allowed pimps and traffickers to include keywords that were indicative of services involving underage girls, such as “Amber Alert,” “fresh,” “barely legal,” or “new in town.”
Such findings contradicted the owners’ claim that the website was only a “passive carrier of ‘third-party content.'” The owners did not deny Backpage was used for the sale of children’s sex, but they claimed they were merely hosting such ads and were therefore immune from liability under the Communications Decency Act (CDA). This means the website is protected from criminal charges since the federal statute protects internet platform providers from being held legally liable for what others post on their websites. The statute provides that,
“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.”
47 U.S.C. § 230(c)(1)
Additionally, Section 230 of the statute protects Internet Service Providers (ISPs) against all criminal and civil liabilities, except liability under federal criminal and intellectual property laws. Most courts have broadly construed this section of the statute to provide “near-complete immunity” to ISPs for whatever users choose to publish on their platforms. (there are about 300 reported decisions addressing Section 230 of CDA and almost all ruled that websites were entitled to immunity from liability under the act; See also, Hill v. Stubhub, Inc., 727 S.E.2d 550, 558 (N.C. Ct. App. 2012)).
However, when a website deliberately and systematically edits its users’ content, the immunity under Section 230 of the CDA is not granted. In Fair Housing Council of San Fernando Valley v. Roomates.com, the U.S. Court of Appeals for the Ninth Circuit ruled that,
“[a] website operator who edits user-created content … retains his immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality. However, a website operator who edits in a manner that contributes to the alleged illegality … is directly involved in the alleged illegality and thus not immune.”
Fair Hous. Council of San Fernando Valley v. Rommates.com, 521 F.3d 1169 (9th Cir. 2008).
When cases were filed under the CDA, specifically against Backpage, the rulings were conflicting. In one case, the Supreme Court of Washington ruled, in reliance on the Ninth Circuit’s decision, that Backpage lost its immunity under the CDA when it edited and helped developed the content shared on its platforms. (J.S. v. Village Voice Media Holdings, 184 Wash. 2d 95 (2015)). The court found that the website was not only marketed as an “escort services” platform but also provided instructions to pimps on how to draft ads without using keywords indicating criminal acts. However, in another case, the U.S. Court of Appeals for the First Circuit gave a huge Section 230 win to Backpage under the notion of online free speech. (Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016)). The Court ruled that “[i]f the evils … identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation.” (Id. at 29) (See also People v. Ferrer were the Court relied on the First Circuit’s ruling stating that “it is for Congress, not this Court, to revisit [immunity of ISPs under CDA.]”)
Per the ruling in both cases, and many more, on the court’s discretion in deciding the scope of CDA, Congress passed a bill, (FOSTA-SESTA; the House bill is known as the Fight Online Sex Trafficking Act, and the Senate bill is the Stop Enabling Sex Traffickers Act) that clearly expressed the purpose behind the CDA. The bill stated that the CDA was “not intended to provide legal protection to websites that unlawfully promote and facilitate prostitution and [sex trafficking],” it only “limits the legal liability of interactive computer service providers or users for content they publish that was created by others.” The bill amended the CDA to include an exception to victims of sex trafficking allowing them to fight against online websites that facilities sex trafficking online. President Trump signed the bill into law in 2018.
The passage of the bill did not only impact Backapage, but many other online sites, including Reddit, Craigslist, and Google, that took actions to censor their platforms to avoid liability of any kind.
Accordingly, many argued that the bill is not helpful in the fight against sex trafficking and that it does more harm to Section 230 and the freedom of speech on the Internet. However, without the passage of FOSTA-SESTA, victims of sex trafficking would have to go through various litigation, like the ones filed against Backpage, in hopes of winning against CityXGuide under the CDA. Instead, the owner of CityxGuide.com was charged under the FOSTA act as soon as the Feds took the website down.
It is important to note the implications of the bill on our freedom of speech on online websites, but what is more important is acknowledging the freedom that is stripped away from underaged girls using such websites. Because of its underground nature, there is not enough accurate data to track the extent of this black-market trade. What is known, however, is that human trafficking is the second most profitable transnational crime in the United States after drug trafficking. Sex trafficking is only one type of human trafficking, and its victims are often minors aging 17 years old and younger, according to the Department of Justice, the Office of Juvenile Justice and Delinquency Prevention. With the increased use of the internet, however, the number of reported exploited children increased dramatically. From 2010 to 2015, the National Center for Missing and Exploited Children reported 846% increase in reports of suspected sex trafficking of minors that were “directly correlated to the increased use of the internet to sell children for sex.”
Online advertising has transformed the sex trafficking industry in the United States, contributing greatly to the easiness of exploiting victims in multiple locations with low risks of getting caught as well as high profitability. Before the internet, the exploitation of minors and adults for the sex trade only took place in physical locations, like the streets. Websites like Backpage and CityXGuide provided pimps with venues to easily traffic children for months, even years, without being caught, and shutting down both websites might be the light at the end of the tunnel that many victims of sex trafficking are looking for.
There is no doubt that the seizure of both sites and the removal of complete legal immunity to online platforms are huge steps forward in the fight against sex trafficking, but there is still much more to be done. The underground nature of this industry enables it to find the most lucrative ways to operate despite the shut down of two major sources. This means, while both sites are down, traffickers remain creative in finding ways to exploit victims silently. But for now, the words of the U.S. Attorney for the Northern District of Texas, Erin Nealy Cox, gives us hope that the fight against sex trafficking will continue until there are no more women and children trafficked online, or in any other way.
“DOJ [the U.S. Department of Justice] didn’t stop with Backpage, and we’re not going to stop with CityXGuide … [i]f you are going to facilitate exploitation online, we’re not going to hesitate to seize your site and bring charges against you.”
Erin Nealy Cox
Definitely a step in the right direction, however, I believe we need to be more creative in batteling these websites before they go live.
Giving the underground nature of this industry, it is hard to predict the emergence of websites that would facilitate sex trafficking and stop them ahead of time. It is also hard to do that without thorough monitoring of the posts advertised there to make sure a criminal activity is taking place on the platform. Legislators can certainly pass laws that limits the usage of online websites like Craigslist but it would open the door to constitutionality battle under the notion of freedom of speech. In my opinion, there is still a lot to be done to stop both pimps and online platforms in the fight against sex trafficking, because without someone recruiting victims and without a venue to advertise services, those children won’t be victimized and trafficked in the first place.
This is a good step in stopping human trafficking and forced prostitution. My only concern is that websites like craigslist, backdoor, etc. provide sex workers with a safe and discreet way to meet clients. By posting through online forums, sex workers can establish boundaries, run background checks, and reference “bad dates” lists which warn of potentially abusive or dangerous clients. These websites also allow sex workers to connect with one another and create a network of support. Without these websites, sex workers will have to rely on more dangerous alternatives like street-walking and will be less able to properly check into clients’ backgrounds. Sex workers will also have difficulty connecting with one another and may have to turn to pimps to find clients.
I wholeheartedly agree that more needs to be done to combat sex trafficking but I believe this bill will have terrible consequences for an already marginalized and criminalized community. Whether individuals believe voluntary sex work should be legal, the fact is that there have always been sex workers even in countries that criminalize such conduct. This point is a little off topic but by legalizing voluntary sex work we would be better able to devote more resources to combating sex trafficking and legal sex workers could help uncover sex trafficking rings they may be too scared to reveal for fear of persecution.
I absolutely agree with you. Unfotentaly, we are faced with a dilemma here: shutting down online websites to strip traffickers the venues that allow them to advertise victims vs. shutting down online websites and stripping sex workers the venue to safely advertise their services. There is a lot at stake and the choosing between the two groups is not only hard but crucial to distinguish since many people falsely confuse the two together. It is true that FOSTA-SESTA imposed increased challenges on sex workers, but I think in order to balance the rights of both groups, we should not only legalize voluntary sex work but also provide enough information that helps people separate the two practices. This would allow those who browse those online websites able to distinguish a victim of sex trafficking from a sex worker in an ad, leading to better reporting and higher chances of catching the traffickers.
Great article.
Itís hard to come by educated people in this particular subject, but you seem like you know what youíre talking about! Thanks