Running head: IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 1
Not the Publisher, Still the Proprietor: Bypassing a Website’s
Immunity Under Section 230 in Sex Trafficking Cases
Andrew D. Pritchard and Elaina Conrad
Iowa State University
IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 2
Abstract
Section 230 of the Communications Decency Act shields websites from liability for user- submitted content, including content that perpetrates sex trafficking. However, this immunity is avoided when a website’s liability does not stem from its role as publisher. Courts’ treatment of websites as real property, combined with well-established principles of landowner liability, should allow websites to be held liable for their role in sex trafficking: not for third-party content, but for crimes resulting from it.
IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 3
Not the Publisher, Still the Proprietor: Bypassing a Website’s
Immunity Under Section 230 in Sex Trafficking Cases
“Debbie,” the middle child of a close-knit, suburban family, was abducted by two older men from her own driveway, gang raped, and then forced into prostitution in one of the
“roughest neighborhoods” of Phoenix.1 She was one of tens of thousands of victims of sex trafficking each year in the United States. Sex traffickers kidnap or deceive their targets, from within the United States or abroad, into horrific abuse as prostitutes, coerced pornography participants, or sexual slaves.
Sex trafficking is driven by demand, and the most crucial links in this illicit industry are the intermediaries who provide physical locations, transportation, and communication to connect customers, traffickers, and victims. In recent years, sex traffickers have taken full advantage of the resources of online media, with the knowledge and acquiescence of website operators. Unlike other intermediaries, however, the owner of an Internet domain and its associated website is shielded from civil and criminal liability, despite facilitating and profiting from a complex of devastating crimes. Scholars, prosecutors, law enforcement officials, and victim advocacy groups have for years urged Congress to revise the statute that provides this protection, Section 230 of the Communications Decency Act of 1996.
In the absence of indications that Congress will act, we propose an approach to website liability under existing law. By shifting the focus from websites’ role as publishers of third-party submitted content and instead treating them as the owner-proprietors of real property, a new set of duties arises for which liability is not avoided under Section 230. We
1 ABC News, Teen Girls’ Stories of Sex Trafficking in U.S., ABC NEWS (Feb. 9, 2006), http://abcnews.go.com/Primetime/story?id=1596778&page=1 IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 4 begin in Part I by establishing the magnitude of sex trafficking in the United States and the variety of statutes that have criminalized every part of involvement with it except what is shielded by Section 230. In Part II, we detail the crucial role of intermediaries in sex trafficking and how online media have offered a plethora of new tools for connecting buyers with coerced sexual services. Part III examines Section 230 and its application through case law. In Part IV, we propose and defend our admittedly partial solutions by describing landowner liability, justifying application of those principles to virtual property, and arguing that even website operators shielded by Section 230 can be made civilly liable for failing to act against crimes emanating from their property and criminally culpable under a theory of
“complicity in the result.”
I. Sex Trafficking in the United States is a Substantial Legal and Policy Problem
Defined as the “act of recruiting, harboring, transporting, providing, or obtaining a person for compelled labor or commercial sex acts through the use of force, fraud, or coercion,”2 human trafficking is an international crime that affects as many as 27 million people around the world.3 By 2020, human trafficking is expected to surpass arms trafficking and the drug trade as a global crime problem.4 Between 14,500 and 17,500 persons are trafficked within the United States each year.5 Of these, roughly 80% are female and 70% of that are victims of sex trafficking.6
2 DEPARTMENT OF STATE, TRAFFICKING IN PERSONS REPORT (2013). 3 Nancy Kubasek & Kaela Herrera, Combatting Domestic Sex Trafficking: Time for a New Approach, 24 TEX. J. WOMEN & L. 167 (2015). 4 See Elizabeth M. Wheaton, Edward J. Schauer & Thomas V. Galli, Economics of Human Trafficking, 48 INT’L MIGR. 114 (2010). 5 Shelly George, The Strong Arm of the Law is Weak: How the Trafficking Victims Protection Act Fails to Assist Effectively Victims of the Sex Trade, 45 CREIGHTON L. REV. 563 (2012). 6 April Rieger, Missing the Mark: Why the Trafficking Victims Protection Act Fails to Protect Sex Trafficking Victims in the United States, 30 HARV. J. L. & GENDER 231 (2007). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 5
A. Sex Trafficking is the Most Common and Brutal Form of Human Trafficking
Sex trafficking is defined as trafficking “in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to performed such an act has not attained 18 years of age.”7 Often considered forced prostitution, sex trafficking has expanded to fill a wide variety of illicit niches. These include “prostitution, pornography, stripping, escort services, and other sexual services” such as web cam sex.8 While the scope of sex trafficking is more limited than general human trafficking, the market value of the sex trafficking industry alone in US cities ranges from $39.9 million to $290 million.9
1. Sex Trafficking Depends on Dehumanizing Its Victims
Sex trafficking is traditionally thought of in terms of abduction and person-to-person interactions such as the case of “Debbie” described earlier.10 While Debbie was forced into prostitution through violence from the beginning, most victims of sex trafficking are lured into the situation through promises of jobs, gifts, or other opportunities. “Miya” was 19 years old when she was approached by a woman and a man who claimed to be a modeling agent.
“[He said] he was looking for new models in the area,” Miya said. “He said I could try it for three days…so I went with them.”11 Instead of modeling, however, Miya was forced into prostitution and trafficked throughout California until she had no idea where she was.
While both of these girls were discovered and returned to their homes within a few months, other victims are not as fortunate. Karla Jacinto estimates she was raped 43,200
7 See supra note 1. 8 Kimberly Kotrla, Domestic Minor Sex Trafficking in the United States, 55 SOC. WORK 181 (2010). 9 MEREDITH DANK ET AL., ESTIMATING THE SIZE AND STRUCTURE OF THE UNDERGROUND COMMERCIAL SEX ECONOMY IN EIGHT MAJOR US CITIES (2014), http://www.urban.org/research/publication/estimating-size-and-structure-underground- commercial-sex-economy-eight-major-us-cities/view/full_report 10 See supra note 1. 11 See Kotrla, supra note 8. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 6 times during her captivity: 30 customers a day, seven days a week, for four years. When she misbehaved — including allowing a john to mark her skin — her captor brutally abused her.
“He started beating me with a chain…he punched me with his fists, he kicked me, pulled my hair, spit at me in the face, and that day was when he also burned me with the iron,” Jacinto said.12 A 12-year-old when she was abducted, Jacinto’s story is more similar to the majority of sex trafficking testimonies shared. Johns tend to desire younger sex workers, leading traffickers to target and abduct younger and younger victims to ensure best profitability.13 In general, the target age of sex trafficking victims is 12 to 16 years old.14
These victims are then subject to constant degradation and risk.15 “Sexual assault, infectious disease, substance misuse, untreated chronic medical conditions, malnutrition, post-traumatic stress disorder (PTSD), major depression and other mental health disorders, homicide, and suicide” are all major concerns faced by victims of sex trafficking.16 After they are recruited into sex work, victims are exposed to a “breaking down period”17 in which the captor or captors repeatedly abuses the victim through “physical violence, sexual assault and gang rape, psychological abuse and manipulation, threats, and blackmail” in order to force the victim into docility.18 These victims have little opportunity to escape and little hope: for many, the stigma of their rape and forced sexualization prevents them from returning to
12 Rafael Romo, Human Trafficking Survivor: I Was Raped 43,200 Times, CNN (Nov. 10, 2015, 11:54 PM), http://www.cnn.com/2015/11/10/americas/freedom-project-mexico-trafficking-survivor. 13 See GLOBAL PERSPECTIVES ON PROSTITUTION AND SEX TRAFFICKING: AFRICA, ASIA, MIDDLE EAST, AND OCEANIA (Rochelle L. Dalla et al. eds., 2011). 14 Jordan Greenbaum & James E. Crawford-Jakubiak, Child Sex Trafficking and Commercial Sexual Exploitation: Health Care Needs of Victims, 135 PEDIATRICS 566 (2015); see also Angela Duger, Focusing on Prevention: The Social and Economic Rights of Children Vulnerable to Sex Trafficking, 17 HEALTH & HUMAN RTS. 114 (2015). 15 See Jody Raphael, Jessica Ashley Reichert, & Mark Powers, Pimp Control and Violence: Domestic Sex Trafficking of Chicago Women and Girls, 20 WOMEN & CRIM. JUST. 89 (2010). 16 See Greenbaum et al., supra note 14. 17 See supra note 1. 18 See Greenbaum et al., supra note 14. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 7 their families or gaining employment outside of the sex industry. The frequency of HIV, STIs, substance abuse issues, and other long-term effects of sex trafficking worsens this stigma and hopelessness. Traffickers intentionally encourage these conditions to prevent their victims’ escape and are brutally effective in dehumanizing and demoralizing victims.19
2. Online Media Amplify the Problems of, and Demand for, Sex Trafficking
In many cases, victims are contacted through or have their abuse perpetuated through use of the internet: social media, classified advertising websites, message boards, and date sites all serve to facilitate communication between victims, pimps, and johns.20 A study in
2006 discovered that, of 3,322 arrests, an estimated 2,322 used social networking sites to facilitate sex trafficking.21 Of these, the majority used the social networking sites to initiate communication and relationships with victims and to advertise “pictures or information about the victim” through the perpetrator’s social networks.22
These websites can also serve as direct markets for the products of sex trafficking.
Pornography, web cam sex, and cybersex are most easily propagated online, and social media provides an open platform for the advertisement and distribution of these services. Fourteen- year-old “Andrea” was lured away from her home by the promise of a babysitting job only to arrive and find the real job was as a worker in a cybersex den. She described the den as having covered windows and “a computer and a camera where naked girls would say words to seduce their mainly foreign customers” and act out their customers’ sexual fantasies, often
19 See SIDDHARTH KARA, SEX TRAFFICKING: INSIDE THE BUSINESS OF MODERN SLAVERY (2009). 20 See Melissa Farley et al., Online Prostitution and Trafficking, 77 ALBANY L. REV. 1039 (2013/2014). 21 Kimberly J. Mitchell et al. Use of Social Networking Sites in Online Sex Crimes Against Minors: An Examination of National Incidence and Means of Utilization, 47 J. ADOLESCENT HEALTH 183, 185 (2010). 22 See Greenbaum et al., supra note 14. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 8 with one another.23
While Andrea’s tragedy took place in the Philippines, similar stories are found throughout the United States. A 19-year-old in Illinois was offered a modeling job online only to be forced into a hotel room and told to service the pimp’s customers.24 Seventeen-year-old
Leisa was forced into street prostitution in Washington, D.C., after her online boyfriend asked her to move in with him; from there, she was subjected to rape, beatings, and constant maltreatment from her pimps and johns.25
Stories such as these are becoming ubiquitous around the world as traffickers, pimps, and johns have begun to rely on the wide-open abilities of the Internet to initiate and facilitate sex trafficking. While person-to-person sex trafficking continues to be a problem, “pimps have adjusted their recruitment to social networking and online apps” in order to increase their assets and profitability.26 This increases the risk for millions of potential victims around the world that may be targeted by sex traffickers; as technology becomes more advanced and prevalent, traffickers adapt with it to stay “a step ahead of law enforcement” and continue their illicit industry.27 These online services serve as tools for the promotion and propagation of sex trafficking around the world that remain unchecked by the current acceptance of a self- regulatory policy on the internet.28
23 See Sunshine de Leon, Cyber-Sex Trafficking: A 21st Century Scourge, CNN (July 18, 2013, 7:58 AM), http://www.cnn.com/2013/07/17/world/asia/philippines-cybersex-trafficking. 24 See Herbert B. Dixon Jr., Human Trafficking and the Internet* (*and Other Technologies, Too), 52 JUDGES’ J. 36, 36 (2013). 25 See Moira Heiges, Note, From the Inside Out: Reforming State and Local Prostitution Enforcement to Combat Sex Trafficking in the United States and Abroad, 94 MINN. L. REV. 428 (2009). 26 Andy Campbell, 149 Child Sex Trafficking Victims Rescued in Nationwide Sting, HUFFINGTON POST (Oct. 15, 2015, 4:29 PM), http://www.huffingtonpost.com/entry/149-child-sex-trafficking-victims-fbi-sting_us_561e985ce4b028dd7ea62852. See also Sriyani Tidball, Mingying Zheng, & John Creswell, Buying Sex On-Line From Girls: NGO Representatives, Law Enforcement Officials, and Public Officials Speak Out About Human Trafficking — A Qualitative Analysis, 33 GENDER ISSUES 53 (2016). 27 See Dixon, supra note 24, at 37. 28 See John Carr & Zo Hilton, Child Protection and Self-Regulation in the Internet Industry: The UK Experience, 23 CHILDREN & SOC. 303 (2009). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 9
B. Sex Trafficking is Unlawful Under a Variety of Federal Statutes
The principal U.S. statute addressing sex trafficking is the Trafficking Victims
Protection Act of 2000, as expanded and reauthorized in 2003, 2005, and 2008.29
1. TVPA Distinguished Sex Trafficking as a Separate Crime Under American Law
The Trafficking Victims Protection Act of 2000 criminalized human trafficking by prohibiting an individual from providing or obtaining services for peonage, slavery, involuntary servitude, or forced labor.30 This includes prostitution, pornography, and other commercial sex acts.31 Internet posts related to commercial sex, especially when money changes hands online, typically satisfy the interstate-commerce requirement for invoking
TVPA.32 The statute established criminal penalties33 and civil remedies for trafficking,34 provided for victim services,35 allowed special visas for sex trafficking victims seeking to
29 See 22 U.S.C. §§ 7101-7109; Farley et al., supra note 20, at 1081-1082; Kathleen A. McKee, Domestic Human Trafficking Series: “It’s 10:00 P.M. Do You Know Where Your Children Are?” 23 REGENT U.L. REV. 311, 314-324 (2010/2011). The TVPA was originally included in the Violence Against Women Act of 1994, much of which was held unconstitutional in United States v. Morrison, 529 U.S. 598, 617-618 (2000); see Mohamed Y. Mattar, Interpreting Judicial Interpretations of the Criminal Statutes of the Trafficking Victims Protection Act: Ten Years Later, 19 AM. U.J. GENDER SOC. POL’Y & L. 1247, 1260 (2011). However, TVPA survived as a lawful exercise of Congress’ interstate commerce authority. See Mattar at 1260 (discussing United States v. Todd, 627 F.3d 329, 333 (9th Cir. 2010)). 30 The statute’s main provisions are codified at 18 U.S.C. §§ 1581-1597 (2014). See also Rachel N. Busick, Note & Comment, Blurred Lines or Bright Line? Addressing the Demand for Sex Trafficking Under California Law, 42 PEPP. L. REV. 333, 336-337 (2015). Crimes against children receive additional penalties; see 18 U.S.C. § 1591; 22 U.S.C. § 7102. 31 See 18 U.S.C. § 1591(a); 22 U.S.C. § 7102(9). See also Farley et al., supra note 20, at 1083. The statute’s terms and legislative history allow its use against sex trafficking that occurs entirely within the borders of the United States. See United States v. Marcus (Marcus I), 487 F.Supp.2d 289, 306 (E.D.N.Y. 2007) (payment for pornography makes the sex depicted in the work “commercial sex acts” under TVPA); Tamar R. Birckhead, The “Youngest Profession”: Consent, Autonomy, and Prostituted Children, 88 WASH. U.L. REV. 1055, 1079 (2011); Mattar, supra note 29, at 1264-1266 (interpreting statutory text and legislative history). 32 See United States v. Myers, 430 F. App’x 812, 815-817 (11th Cir. 2011). 33 The principal crimes defined in the original TVPA are codified at 18 U.S.C. §§ 1589-1594; see also Farley et al., supra note 20, at 1083. The TVPA of 2000 was the first time U.S. law recognized human trafficking as a distinct crime. See Mattar, supra note 29, at 1250; Heather Monasky, Note, On Comprehensive Prostitution Reform: Criminalizing the Trafficker and the Trick, but Not the Victim — Sweden’s Sexkopslagen in America, 37 WM. MITCHELL L. REV. 1989, 2021 (2011); Stephanie Silvano, Note, Fighting a Losing Battle to Win the War: Can States Combat Domestic Minor Sex Trafficking Despite CDA Preemption? 83 FORDHAM L. REV. 375, 380 (2014). 34 See Farley et al., supra note 20, at 1084. Many of these were added or expanded in the 2003 reauthorization. See Jennifer S. Nam, The Case of the Missing Case: Examing the Civil Right of Action for Human Trafficking Victims, 107 COLUM. L. REV. 1655 (2007). 35 See Monasky, supra note 33, at 2021-2024. The TVPA reflects a policy judgment at the federal level that sex trafficking victims should be distinguished from those who recruit them, offer their services, and profit from unlawful acts, an objective that often conflicts with state enforcement of prostitution statutes. See Lenora C. Babb, Note, Utah’s Misguided Approach to the Problem of Sex Trafficking: A Call for Reform, 14 J.L. FAM. STUD. 277, 294-295 (2012). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 10 emigrate to the United States,36 and instructed the State Department to monitor the effectiveness of other countries’ efforts against human trafficking.37
The 2005 reauthorization act extended criminal culpability to acts committed outside the United States;38 and the 2008 William Wilberforce Trafficking Victims Protection
Reauthorization Act criminalized conspiracy to commit human trafficking or benefitting financially from it.39 The 2008 reauthorization also added civil provisions that allow sex trafficking victims to sue individuals or corporations responsible for their victimization or who “knew or should have known” that their services were being used to facilitate sex trafficking.40 Grants to state and local governments to prosecute sex trafficking and provide victim services at the local level were added in the 2005 reauthorization.41
2. Other Federal Statutes Criminalize Aspects of Sex Trafficking
Several other federal statutes also allow criminal prosecution of sex traffickers. The primary statute used against sex trafficking before TVPA,42 the Mann Act of 1910,43
36 See Farley et al., supra note 20, at 1082. The immigration “U” visa is available to all victims of physical or mental abuse from crime, while the “T” visa is reserved for human trafficking victims willing to assist in prosecuting traffickers. 8 U.S.C. § 1101(a)(15); 22 U.S.C. § 7105. See also Melynda H. Barnhart, Sex and Slavery: An Analysis of Three Models of State Human Trafficking Legislation, 16 WM. & MARY J. WOMEN & L. 83, 97-101 (2009); Ivy Lee, An Appeal of a T Visa Denial, 14 GEO. J. ON POVERTY L. & POL’Y 455, 457 (2007); McKee, supra note 29, at 318, 322. The conditions placed on the “T” visa have led critics to question the extent of its usefulness. See Monasky, supra note 33, at 2024. 37 See McKee, supra note 33, at 315-316. Some commentators contend that the TVPA brought the United States into line with the global consensus on human trafficking expressed in the United Nations Trafficking Protocol. See Mattar, supra note 29, at 1294-1296. However, international measures have limited relevance to online sex trafficking, because the Protocol does not explicitly address the Internet and its signatories generally do not interpret it to require regulation of online trafficking. See Alexander Kalim, Comment, Addressing the Gap in International Instruments Governing Internet Child Pornography, 21 COMMLAW CONSPECTUS 428, 440-441; Kendall Vitale, Comment, Barricading the Information Superhighway to Stop the Flow of Traffic: Why International Regulation of the Internet is Necessary to Prevent Sex Trafficking, 27 AM. U. INT’L L. REV. 91, 95-96 (2012). 38 See 18 U.S.C. § 3271; Mattar, supra note 29, at 1250, 1293-1294. 39 See Mattar, supra note 29, at 1250. Congress, “inspired by his passionate words,” named the act for the architect of the Slave Trade Act of 1807, to mark the bicentennial of the first U.S. human trafficking statute. See Tiffanie N. Choate, Comment, Protecting the Lydias, Lina, and Tinas From Sex Trafficking: A Call to Eliminate Ambiguities of 18 U.S.C. § 1591, 65 OKLA. L. REV. 665, 665 (2013). 40 See Farley et al., supra note 20, at 1083-1084; McKee, supra note 29, at 319. 41 See Mattar, supra note 29, at 1264; McKee, supra note 29, at 321-322. 42 See Mattar, supra note 29, at 1250-1251. 43 18 U.S.C. §§ 2421-2424. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 11 prohibits transporting any person in interstate commerce for any unlawful sexual activity,44 including prostitution.45 A 1994 amendment to the Mann Act, the Child Sexual Abuse
Prevention Act, criminalized travel to another country to engage in sex with a minor.46 More broadly, the Travel Act,47 which prohibits interstate travel to commit any crime, has been suggested as a tool against sex trafficking.48 The International Marriage Broker Regulation
Act49 criminalizes sex trafficking under the cover of a “mail-order bride” service if the marriage broker has actual knowledge that his client intends to use a woman or girl for unlawful activity.50 Congress also has criminalized traveling to other countries to engage in unlawful sexual activities through the PROTECT Act of 2003,51 meant to address deficiencies in the Mann Act.52 The advertisements that are so crucial to sex trafficking also are made criminal by portions of the Racketeer Influenced and Corrupt Organizations Act
(RICO)53 and by state statutes against prostitution or child pornography.54
44 See 18 U.S.C. § 2424(a); United States v. Scott, 529 F.3d 1290 (10th Cir. 2008); United States v. Flavors, 15 F.App’x 491 (9th Cir. 2001). The original act required a commercial motive, but this element was eliminated by the Child Sexual Abuse and Pornography Act of 1986, Pub. L. No. 99-628; see Birckhead, supra note 31, at 1074-1075; John A. Hall, Sex Offenders and Child Sex Tourism: The Case for Passport Revocation, 18 VA. J. SOC. POL’Y & L. 153, 165-166 (2011). 45 The Mann Act has the advantage over TVPA of not requiring the prosecution to show fraud or coercion in the transport. See 18 U.S.C. § 2421; United States v. Daneman, No. 06-cr-717-AKH (S.D.N.Y. May 30, 2008); Farley et al., supra note 20, at 1085-1086. 46 See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, sec. 160001; Hall, supra note 44, at 165-166. 47 18 U.S.C. § 1952. 48 See Farley et al., supra note 20, at 1088-1089; Lawrence G. Walters, Shooting the Messenger: An Analysis of Theories of Criminal Liability Used Against Adult-Themes Online Service Providers, 23 STAN. L. & POL’Y REV. 171, 192-194 (2012). 49 Pub. L. 109-162. 50 See Suzanne H. Jackson, Marriages of Convenience: International Marriage Brokers, “Mail-Order Brides,” and Domestic Servitude, 38 U. TOL. L. REV. 895, 907 (2007); Mattar, supra note 29, at 1266. Women brought to the United States in these arrangements are especially vulnerable to becoming victims of sex trafficking. See Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 MINN. L. REV. 1625, 1653 (2007); Noga Firstenberg, Marriage and Morality: Examining the International Marriage Broker Regulation Act, 18 ASIAN AM. L.J. 83, 122-124 (2011); Victoria I. Kusel, Gender Disparity, Domestic Abuse, and the Mail-Order Bride Industry, 7 ALB. GOV’T L. REV. 166, 178 (2014); Roxanne Sims, Comment, A Comparison of Laws in the Phillipines, the U.S.A., Taiwan, and Belarus to Regulate the Mail-Order Bride Industry, 42 AKRON L. REV. 607, 608-611 (2009); Vitale, supra note 37, at 109. Like the TVPA, see supra note 29, the Act was included in the Violence Against Women Act of 1994 (see Firstenberg, supra, at 83; Kusel, supra, at 177-178). However, again like the TVPA, the IMB Regulation Act has survived constitutional review. See United States v. Maka, 237 F. App’x 225 (9th Cir. 2007); European Connections & Tours, Inc. v. Gonzales, 480 F.Supp.2d 1355 (N.D. Ga. 2007). 51 18 U.S.C. § 2423(c); see also Mattar, supra note 29, at 1298-1299. 52 See Hall, supra note 44, at 166-170. 53 See Farley et al., supra note 20, at 1087-1088; Walters, supra note 48, at 204-208. 54 See Farley et al., supra note 20, at 1085. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 12
II. Intermediaries Perform a Vital Function in Sex Trafficking
All other parties in the forced sale of sexual services are connected by the most indispensable participant in these transactions: the intermediary who provides the physical or informational connection between buyers and sellers. Severing these links would largely end the profitability of sex trafficking and many forms of prostitution. However, a unified assault against intermediaries is hindered by statutory protections for websites and other media that allow buyers and sellers to connect with one another. Until the administrator of a website on which the human sexuality of unwilling victims is sold can be placed in same legal position as the operator of a boat who uses his vessel for sex tourism55 or the owner of a business who provides a front for such an operation,56 coordinated action against intermediaries as a whole is virtually impossible.
A. Intermediaries Are Crucial to the Continued Existence of Sex Trafficking
The “traditional” type of trafficking is reliant on physical intermediaries who facilitate aspects of trafficking such as initial contact, transportation, or sale. Labor contractors and travel, model, escort, or bridal agencies are all commonly used as fronts for these.57 While these intermediaries are not necessarily involved directly in the sale of sex trafficking victims or their services, they provide an integral piece of the industry by facilitating the trafficking.
This is primarily done through recruitment of victims and the abduction and transportation of these victims once recruited. In Debbie’s case above, the men who first took her from her home served as intermediaries, who then presented her to their employer for the sale of her
55 See, e.g., Matthieu Chemin & Flaubert Mbiekop, Addressing Child Sex Tourism: The Indian Case, 38 J. EUR. POL. ECON. 169 (2015). 56 See, e.g., Arcara v. Cloud Books, 478 U.S. 697 (1986). 57 See ELENA TYURYUKANOVA, FORCED LABOUR IN THE RUSSIAN FEDERATION TODAY: IRREGULAR MIGRATION AND TRAFFICKING IN HUMAN BEINGS xii (2006). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 13 services.58 These intermediaries most frequently offer employment opportunities, often in a different country than that of the victim, and then “help” the victim travel to them. When the victims arrive, they find only abuse and violation instead of the opportunity promised.
Transnational sex trafficking persists in large part because of official corruption and ineffective law enforcement in the countries of origin for many trafficking victims,59 making it increasingly important to disrupt sex trafficking in its middle stages when it cannot be stopped at its source.
B. Mutual Relationship Between Trafficking Intermediaries and Online Media
While person to person sex trafficking persists as a major world problem, it is now being eclipsed by sex trafficking facilitated through online intermediaries, including websites such as Craigslist60 and Backpage.com.61 These websites allow advertisements for prostitution and pornography to be submitted and viewed anonymously around the world, thereby “functioning as online brothels.”62 Traffickers are also able to recruit victims through these websites by advertising opportunities for work, economic advancement, and security.63
Internet advertising “is the most important part of the business” of sex trafficking.64
1. Sex Traffickers Extensively Use Online and Mobile Media
The Internet fundamentally transformed the experience of obtaining and viewing
58 See supra note 1. 59 See Farley et al., supra note 20, at 1046; Paola Monzini, Trafficking in Women and girls and the Involvement of Organised Crime in Western and Central Europe, 11 INT’L REV. VICTIMOLOGY 73 (2004). 60 See Nathan Assel, Advertising Prostitution: Potential Criminal Liability for Craigslist, 2011 SYRACUSE SCI. & TECH L. REP. 77, 80-82 (2011). 61 See Babb, supra note 35, at 282. 62 See Farley et al., supra note 20. 63 See Dank et al. supra note 9. 64 See Farley et al., supra note 20, at 1045; see also Ryan Dalton, Note, Abolishing Child Sex Trafficking on the Internet: Imposing Criminal Culpability on Digital Facilitators, 43 U. MEM. L. REV. 1097, 1108 (2013). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 14 sexually explicit materials,65 and it similarly transformed the process of purchasing sexual services. Today, the vast majority of prostitution — the endpoint for sex trafficking66 — takes place online.67 Police in some cities estimate eighty to ninety percent of prostitution transactions are arranged through online media.68 Websites that have replaced newspaper classified ads, such as Craigslist, Backpage, ClassifiedAds.com, and Webcosmo, have been dubbed a “virtual red-light district.”69 One critic of Craigslist labeled it “the Wal-Mart of online sex trafficking.”70 An empirical study found that many respondents to sexual ads were prepared to pay for sex acts, and nearly half wanted to proceed even after repeated warnings that their sex partner would be underage.71
2. Online and Mobile Media Offer Unique Advantages for Sex Traffickers
The advantages online media provide in every area of human activity also make these media a tremendous advance over other forms of coordinated sex trafficking. Its advantages include nearly universal availability in the developed world and convenient mobility,72 access to a worldwide market from a single location,73 anonymity,74 and the ability to use
65 See Busick, supra note 30, at 345-346; Jennifer M. Kinsley, Sexual Privacy in the Internet Age: How Substantive Due Process Protects Online Obscenity, 16 VAND. J. ENT. & TECH L. 103, 128-131 (2013). 66 See Farley et al., supra note 20, at 1054-1059 (explaining that prostitution and sex trafficking generally are the same complex of crimes). 67 See Busick, supra note 30, at 345-346 (noting that “[i]n the United States, technology—specifically the Internet—is the single greatest facilitator of the commercial sex trade,” id. at 345); Farley et al., supra note 20, at 1043; Abby R. Perer, Note, Policing the Virtual Red Light District: A Legislative Solution to the Problems of Internet Prostitution and Sex Trafficking, 77 BROOKLYN L. REV. 823, 828 (2012). Sex traffickers even produce their own online magazine, Streetwalking the World. Farley et al., supra note 20, at 1046. 68 See Farley et al., supra note 20, at 1043. Online prostitution ads include both overt sexual solicitations and carefully coded references to sex acts for sale. See Annie Ross, Note, An Illegal Rub? Analyzing Craigslist’s First Amendment Right to Host Adult Services Ads, 21 B.U. PUB. INT. L.J. 405, 410 (2012). 69 Quoted in Perer, supra note 67, at 823. See also Dalton, supra note 64, at 1108; Farley et al., supra note 20, at 1077 (noting increasing sex trafficking arrests and violent crimes associated with Backpage and Craigslist); Silvano, supra note 33, at 381 (citing sources linking Backpage to 232 reports of sex trafficking in 45 states). 70 Quoted in Steve Turnham and Amber Lyon, Sold on Craigslist: Critics Say Sex Ad Crackdown Inadequate, CNN (Aug. 4, 2010, 5:25 AM), http://www.cnn.com/2010/CRIME/08/03/craigslist.sex.ads/index.html. 71 See SCHAPIRO GROUP, MEN WHO BUY SEX WITH ADOLESCENT GIRLS: A SCIENTIFIC RESEARCH STUDY 6-12 (2010). 72 See Dalton, supra note 64, at 1107-1108; Farley et al., supra note 20, at 1043; Ross, supra note 68, at 408; Vitale, supra note 37, at 106, 117-118. 73 See Dalton, supra note 64, at 1107; Farley et al., supra note 20, at 1044; Ross, supra note 68, at 408. 74 See Dalton, supra note 64, at 1108; Farley et al., supra note 20, at 1044; McKee, supra note 29, at 329; Ross, supra note 68, at 408; Vitale, supra note 37, at 106. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 15 untraceable virtual currencies such as Bitcoin.75 Online sex trafficking makes much of the problem invisible to law enforcement and the public.76 Artfully worded advertisements77 for captive victims often are difficult to separate from voluntary prostitution or sexually explicit dating ads.78
While the internet’s ease of use helps recruiters and sex predators alike, its ubiquity is a primary concern. An estimated 75% of the world’s population has access to a mobile phone.79 This allows unprecedented reach and flexibility for sex traffickers: mobile technology allows constant, real-time communication almost anywhere in the world. Because of this, traffickers can recruit victims around the world with near anonymity.80 Latonero warns that “the rise of mobile technology may fundamentally transform the trafficking landscape” due to its flexibility and pervasiveness.81 According to some studies, trafficking victims appear to have access to mobile technology like cell phones, but they rarely offer freedom. Instead, they provide another means for the traffickers to monitor and control their victims.82 By using mobile technology, they are then able to “more efficiently monitor an increasing number of victims.”83
In addition to traditional websites and classified-ad sites such as Craigslist,84 sex
75 See Farley et al., supra note 20, at 1044. 76 See Ross, supra note 68, at 413. 77 See Thomas J. Holt, Kristie R. Belvins & Joseph B. Kuhns, Examining the Displacement Practices of Johns With On-Line Data, 36 J. CRIM. JUST. 522, 522-523 (2008); Ross, supra note 68, at 410. 78 See Holt et al., supra note 77, at 522-527; Perer, supra note 67, at 828. 79 MARK LATONERO ET AL., THE RISE OF MOBILE AND THE DIFFUSION OF TECHNOLOGY-FACILITATED TRAFFICKING iv (2012). 80 Online advertising is used both to recruit potential victims, often with the promise of household or nannying jobs, and to sell their services, sometimes under the pretext of being a legitimate business. See Vitale, supra note 37, at 109-110. 81 Latonero et al., supra note 79, at iv. 82 See Jessica Elliott & Kieran McCartan, The Reality of Trafficked People’s Access to Technology, 77 J. CRIM. L. 255, 263 (2013); ELAINE MCGREGOR & MELISSA SIEGEL, SOCIAL MEDIA AND MIGRATION RESEARCH 18 (2013) 83 Agence France Presse, Sex Traffickers “Using Facebook” to Lure Victims, PHYS.ORG (Nov. 25, 2014), http://phys.org/news/2014-11-sex-traffickers-facebook-lure-victims.html. 84 See Donna M. Hughes, The Internet and Sex Industries: Partners in Global Sexual Exploitation, TECH & SOC’Y MAG. (2000), http://www.uri.edu/artsci/wms/hughes/siii.htm; James F. Quinn & Craig J. Forsyth, Describing Sexual Behavior in the Era of the Internet: A Typology for Empirical Research, 26 DEVIANT BEHAV. 191, 197 (2005). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 16 traffickers are flourishing in social networking sites,85 videoconferencing and video chat services,86 and online gaming (which allows players to talk with one another in “massively multiplayer” virtual worlds).87 Nor are traffickers content to facilitate one-off transactions: through a variety of communication media, communities of sex traffickers and sexual clients form, legitimating and normalizing one another’s unlawful sexual conduct.88
3. Most Popular Websites for Sex Traffickers Perpetuate the Problem
Under pressure from media reports and elected officials, particularly state attorneys general, Craigslist agreed in 2010 to implement measures to cut down on sex trafficking ads.89 These included prohibiting minors from using its “erotic services” section, charging for advertising in that section, requiring a phone number to verify ads, providing links to anti- trafficking sites, and promising to report suspected sex trafficking to the National Center for
Missing and Exploited Children.90 However, these token gestures are easily bypassed91 and scarcely make a dent in the flood of sex trafficking advertisements.92 Most notably, Craigslist
85 See Farley et al., supra note 20, at 1062ff. 86 See id. at 1061, 1077-1080. 87 See id. at 1046, 1067ff.; Vitale, supra note 37, at 106-109. 88 See Busick, supra note 30, at 346-347; Farley et al., supra note 20, at 1069; McKee, supra note 29, at 330; Vitale, supra note 37, at 119. Some sites even encourage clients to rate the attractiveness and performance of the prostitutes or sex trafficking victims whose services they purchased, to facilitate victim selection by future clients. See Farley et al., supra, at 1069-1070. 89 See Testimony of William Clinton Powell, director, Customer Service and Law Enforcement Relations of Craigslist, Inc., Before the U.S. House of Representatives Judiciary Comm., Subcomm. On Crime, Terrorism and Homeland Security, Hearing on Domestic Minor Sex Trafficking 2 (Sept. 15, 2010), http://judiciary.house.gov/hearings/pdf/Powell1009_15.pdf; Ashley Ingber, Note, Cyber Crime Control: Will Websites Ever Be Held Accountable for the Legal Activities They Profit From? 18 CARDOZO J.L. & GENDER 423, 424 (2012); Ross, supra note 68, at 410; Vitale, supra note 37, at 94. A significant part of the news media attention was driven by the 2009 case of the “Craigslist Killer” in Boston. See John E. D. Larkin, Criminal and Civil Liability for User Generated Content: Craigslist, A Case Study, 15 J. TECH. L. & POL’Y 86 (2010). 90 See Farley et al., supra note 20, at 1077-1078; Ingber, supra note 89, at 424; Ross, supra note 68, at 410-411; Vitale, supra note 37, at 94. 91 For example, solicitors and purchasers of sexual services simply move to other parts of the website. See Ingber, supra note 89, at 424-425. Disposable cell phones neutralize the requirement of “verification” by phone. See Farley et al., supra note 20, at 1078. Reporting suspected sex trafficking of minors to the National Center for Missing and Exploited Children does not include a commitment to report such suspicions to law enforcement. Id. Since none of these changes was required by law, Craigslist also can reverse its decisions at any time. See Perer, supra note 67, at 830. 92 See Perer, supra note 67, at 830; Ross, supra note 68, at 410-411; Vitale, supra note 37, at 94-95. Backpage has committed to measures similar to Craigslist’s and subject to the same limits on effectiveness. See Silvano, supra note 33, at 382-383. For example, Backpage employees often must guess whether the subject of a sexual ad is an adult. Id. at 383. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 17 and Backpage have refused to commit to individually screening each advertising post for solicitation of sexual acts.93
4. Function Matters More Than a Particular Company or Site
The point, however, is not that Craigslist or Backpage deserve to be singled out, for any reason other than that they are the most prominent examples of a crucial step in the process of sex trafficking. The commercial trade in sex — whether voluntary or coerced — is driven by demand.94 Sex trafficking derives its immense profitability95 from providing the crucial connection between buyers with a “demand” for sex and sellers offering themselves or others in exchange for value.96 Intermediaries not only supply a participant for sexual acts but also ensure the cooperation of others (such as hotel managers, strip club operators, or taxi drivers) to facilitate the meeting between the buyer and the victim.97 Given the degree of demand and amount of money involved, it is not surprising that, when sex trafficking becomes difficult or unprofitable through one site or communication medium, traffickers and consumers easily find their way to other platforms for connecting.98 As one trafficker put it,
“Before Craigslist, there was Yahoo Groups; before Yahoo there was AOL.”99
93 See M.A. ex rel P.K. v. Village Voice Media Holdings, 809 F.Supp.2d 1041, 1043-1044 (E.D. Mo. 2011); Farley et al., supra note 20, at 1078. 94 See Babb, supra note 35, at 295; Linda Smith & Samantha Healy Vardaman, The Problem of Demand in Combating Sex Trafficking, 81 INT’L REV. PENAL L. 607, 608-609 (2010); Vidyamali Samarasinghe, “Two to Tango”: Probing the Demand Side of Female Sex Trafficking, 16 PAK. J. WOMEN’S STUD. 33 (2009). 95 Sex trafficking is the most lucrative of the eight forms of human trafficking. Dalton, supra note 64, at 1102; Siddharth Kara, Designing More Effective Laws Against Human Trafficking, 9 NW. J. INT’L HUM. RTS. 123, 127 (2011). 96 See Dalton, supra note 64, at 1113-1114; Vitale, supra note 37, at 101-102. 97 See Dalton, supra note 64, at 1113-1114; Meredith Flowe, The International Market for Trafficking in Persons for the Purpose of Sexual Exploitation: Analyzing Current Treatment of Supply and Demand, 35 N.C. J. INT’ L. & COM. REG. 669, 677-679 (2010); Vitale, supra note 37, at 101. 98 Anti-trafficking measures by Craigslist and Backpage, supra notes 89-90 and accompanying text, resulted in rapid and significant increases in sexual advertising on other, similar sites. See Dalton, supra note 64, at 1109-1111; Erin Heil & Andrea Nichols, Hot Spot Trafficking: A Theoretical Discussion of the Potential Problems Associated With Targeted Policing and the Eradication of Sex Trafficking in the United States, 17 CONTEMP. JUST. REV. 421 (2014); Ross, supra note 68, at 414- 415; Silvano, supra note 33, at 381. Some other sites deliberately seized the opportunity to take market share in sexual ads away from Craigslist. See Perer, supra note 67, at 830. 99 Quoted by Farley et al., supra note 20, at 1061 (noting that online sex services date back to the 1970s). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 18
III. Websites Used by Sex Trafficking Intermediaries are Protected by CDA Section 230
Applying federal laws against sex trafficking or state laws against prostitution to sites such as Craigslist or Backpage, even through well-established criminal law concepts such as accomplice liability or civil remedies premised on negligence, is largely barred by Section
230 of the Communications Decency Act. Coordinated legal efforts against sex trafficking intermediaries will be prohibitively complicated so long as the intermediary who provides a website to facilitate sex trafficking occupies a different legal realm from the intermediary who provides a boat, strip club, or hotel room. Sex traffickers and their intermediaries and clients thus benefit from the forum provided by ISPs while those sites’ operators face no real accountability for ignoring criminal activity using their services.100
A. Section 230 Shields Websites From Liability for Allowing Sex Trafficking
At least since the beginning of their preventive efforts against ads for unlawful sexual services, sites such as Craigslist and Backpage have been aware that their services are used extensively to perpetrate both voluntary prostitution and the trafficking of captive human beings, including children, as sexual objects. The shortcomings of these sites’ half-measures against such ads have been amply described by their critics. More serious, however, is their refusal to act even against advertisements that law enforcement have specifically called to the attention of site administrators, either for the content of the ad or because the poster of the ad is known to be engaging in sexual crimes. Section 230 of the Communications Decency Act permits such inaction.101
100 See Farley et al., supra note 20, at 1045. 101 See Ingber, supra note 89, at 425. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 19
1. Section 230 Provides Internet Service Providers Immunity for User Content
The Supreme Court’s landmark ruling in Reno v. American Civil Liberties Union102 extended full First Amendment protection to the Internet in the course of finding unconstitutional almost all provisions of the Communications Decency Act of 1996.103 Two provisions, however, survived:104 Section 230, which shields Internet hosts from being treated as the “publisher or speaker” of content posted on their sites or through their services by third parties;105 and a portion of Section 223, which immunizes such sites from civil liability if they undertake to remove criminal or tortious content submitted by third parties but fail to detect all instances.106
Section 230’s purpose was never to encourage recklessness or willful ignorance by website operators about what content was passing through their sites.107 The statute was
Congress’ reaction108 to a 1995 New York defamation case in which Internet service provider
Prodigy was found subject to publisher liability for statements the service’s users posted on its online bulletin boards.109 Had the precedent stood, the pioneers of the early years of widespread Internet use would have faced a dilemma between almost limitless liability,110
102 521 U.S. 844 (1997). 103 See Reno, 521 U.S. at 868-870. The Act was included in the Telecommunications Act of 1996, Pub. L. No. 104-104. 104 See Ingber, supra note 89, at 427; Perer, supra note 67, at 831. 105 The provision was re-passed in 1998, see Ingber, supra note 89, at 427, and is codified at 47 U.S.C. § 230. 106 See Reno, 521 U.S. at 860-861. 107 See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122-1123 (9th Cir. 2003); Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Ross, supra note 68, at 437 (discussing legislative history and cases). 108 See H.R. Rep. No. 104-458, at 194 (1996) (Conf.Rep.); Ryan J.P. Dyer, Comment, The Communication Decency Act Gone Wild: A Case for Renewing the Presumption Against Preemption, 37 SEATTLE U.L. REV. 837, 840-841 (2014); John E.D. Larkin, Criminal and Civil Liability for User Generated Content: Craigslist, A Case Study, 15 J. TECH. L. & POL’Y 85, 104 (2010); Corey Omer, Note, Intermediary Liability for Harmful Speech: Lessons From Abroad, 28 HARV. J.L. & TECH. 289, 301-302 (2014). 109 See Stratton Oakmont, Inc. v. Prodigy Serv. Co., 1995 WL 323710, at *4 (N.Y. Sup. Ct., May 24, 1995). 110 See Chicago Lawyers’ Com. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 668 (7th Cir. 2008); Zeran, 129 F.3d at 328-333; Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 PEPP. L. REV. 427, 436 (2009); Ross, supra note 68, at 437; Noah Tischler, Note & Comment, Free Speech Under Siege: Why the Vitality of Modern Free Speech Hinges on the Survival of Section 230 of the Communications Decency Act, 24 TEMP. POL & CIV. RTS. L. REV. 277, 290 (2014). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 20 akin to holding a telephone company liable for every sentence uttered over its connections, or remaining passive in the face of distasteful, tortious, or criminal content being displayed under their mastheads.111
Sites found to be ISPs do not necessarily receive immunity for all their content.112
However, courts apply a broad interpretation of who qualifies for the ISP defense.113 At its core, the Section 230 defense from liability for third-party content is available to companies that provide the means of connecting to the Internet114 or server space to host a website.115
However, it also extends to sites that invite user content, including news organizations that allow user comments,116 dating websites,117 consumer reviews sites,118 search engines,119 stores for smartphone applications,120 social media services,121 and classified-ad sites such as
Craigslist and Backpage.122
111 See Walters, supra note 48, at 183. 112 See Ingber, supra note 89, at 434-435 (discussing Gibson v. Craigslist, Inc., No. 08-7735 (S.D.N.Y. June 15, 2009)). 113 See Barrett v. Rosenthal, 146 P.3d 510, 514, 518 (Cal. 2006); David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decent Act, 43 LOYOLA L.A. L. REV. 373, 379 (2010); Note, Badging: Section 230 Immunity in a Web 2.0 World, 123 HARV. L. REV. 981, 984 (2010). 114 See 47 U.S.C. § 230(f)(2). 115 See Ricci v. Teamsters Union Local 456, 781 F.3d 25, 27 (2nd Cir. 2015); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 762 (Tex. App. 2014). 116 See Hupp v. Freedom Communications, Inc., 221 Cal.App.4th 398, 405 (2013). 117 See Carafano, 339 F.3d at 1123-1124; Saponaro v. Grindr, LLC, 93 F.Supp.3d 319, 323 (D.N.J. 2015); Beckman v. Match.com, No. 2:13-CV-97-JCM(NJK) (D.Nev. May 29, 2013). 118 See Seaton v. TripAdvisor, LLC, 728 F.3d 592, 599 n.8 (6th Cir. 2013); Joseph v. Amazon.com, Inc., 46 F.Supp.3d 1095, 1106 (W.D. Wash. 2014); Kimzey v. Yelp, Inc., 21 F.Supp.3d 1120, 1123 (W.D. Wash. 2014); Braverman v. Yelp, Inc., 2013 N.Y. Slip Op. 31407(U) (N.Y. Sup. Ct. Feb. 27, 2013); Okeke v. Cars.com, 40 Misc.3d 582, 586-588 (N.Y.C. Civ. Ct. 2013). 119 See Google, Inc. v. Hood, 96 F.Supp.3d 584, 596-598 (S.D. Miss. 2015); Baldino’s Lock & Key Service, Inc. v. Google, Inc., 88 F.Supp.3d 543, 547 (E.D. Va. 2015), aff’d on other grounds, No. 15-1202 (4th Cir. Dec. 4, 2015); American Income Life Insurance Co. v. Google, Inc., No. 2:11-CV-4126-SLB (N.D. Ala. Sept. 8, 2014); O’Kroley v. Fastcase, Inc., No. 3:13- 0780 (M.D. Tenn. May 27, 2014); Kabbaj v. Google, Inc., No. 13-1522-RGA (D.Del. April 7, 2014); Parts.com, LLC v. Yahoo! Inc., 996 F.Supp.2d 933, 939 (S.D. Cal. 2013); Mmubango v. Google, Inc., No. 12-1300 (E.D. Pa. Feb. 22, 2013). 120 See Free Kick Master, LLC v. Apple, Inc., No. 15-cv-03403-PJH (N.D. Cal. Oct. 19, 2015). 121 See Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014); Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008); Caraccioli v. Facebook, Inc., 2016 WL 859863 (N.D. Cal. March 7, 2016). Section 230 immunity also has been extended to Facebook users for comments posted on their pages by third parties. See Restis v. American Coalition Against Nuclear Iran, Inc., 53 F.Supp.3d 705, 718 (S.D.N.Y. 2014). 122 See Does v. Backpage.com, LLC, No. 15-1724 (1st Cir. March 14, 2016); Backpage.com, LLC v. Dart, No. 15-3047 (7th Cir. Nov. 30, 2015); Chicago Lawyers’ Com. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 669-670 (7th Cir. 2008); Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 961 (N.D. Ill. 2009). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 21
2. Section 230 Provides an Affirmative Defense to Civil Liability
Section 230’s principal function continues to be providing an affirmative defense against civil liability even once the site’s operators know or should know of unlawful content passing through their servers, and even when they make no effort to remove the content.123
Courts typically apply a three-part test formulated by the Ninth Circuit to determine whether Section 230 immunity applies in a civil case.124 First, the defendant must be the
“provider or user” or an “interactive computer service”125 (i.e., an online service available for others to use). Second, the plaintiff must be seeking to treat the defendant as the publisher or speaker of the statement at issue.126 Finally, the content must have been provided by a third party, without affirmative acts or substantial involvement by the defendant.127
As often happens in an emerging area of law, a handful of early cases have had an outsized influence on the law’s subsequent development. As one commentator notes, “The first courts to apply section 230 inferred an exaggerated statutory meaning and intent to the statute’s immunity-granting provision, rarely reexamining the basis of those findings.”128
In 1997, in the first major civil case under Section 230, the Fourth Circuit articulated two central justifications for the holding that recur frequently in later cases. First, the court pointed to practical differences between websites and print publishers. Unlike a publisher with limited space, which can carefully review all the content it presents, websites that accept third-party content can accommodate limitless amounts of content and thus cannot effectively
123 See Walters, supra note 48, at 182, 185 (comparing Section 230 with 17 U.S.C. § 512(c)). 124 See Batzel v. Smith, 333 F.3d 1018, 1037 (9th Cir. 2003); Gibson v. Craigslist, Inc., No. 08-7735 (S.D.N.Y. June 15, 2009). 125 47 U.S.C. § 230(f)(2). 126 18 U.S.C. § 230(c)(1). 127 18 U.S.C. § 230(c). 128 See Dyer, supra note 108, at 846. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 22 monitor the lawfulness of every submitted post.129 Second, at a relatively early point in the
Internet’s rise to use by the general public, the court reiterated Congress’ stated purpose behind Section 230, to avoid a chilling effect for online speech.130 At least eight federal circuits have followed this reasoning, with two others indicating parenthetically that they probably would do so if presented with a relevant case.131
The Fourth Circuit also constructed two interpretations to Section 230 that would direct the trajectory of legal thinking on these statutes. First, the court read Section 230 to confer immunity from a broad range of tort claims,132 not just the defamation claims that originally prompted the statute’s creation.133 (More recent cases have read Section 230 immunity as extending even beyond tort law to apply to any civil claim other than those rooted in intellectual property.)134 A second consequential interpretation involved the key term “publisher.” The court defined the protection from publisher liability as including immunity from liability for traditional functions of a publisher, such as selecting content to publish or withhold, and even editing third-party content “while retaining its basic form and message.”135 Zeran has stood ever since for the proposition that a website operator need not completely abstain from involvement with third-party content to preserve its Section 230
129 See Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997). This justification was reiterated in Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 668-669 (7th Cir. 2008). 130 See Zeran, 129 F.3d at 330-331, 333-335; see also 47 U.S.C. § 230(b). 131 See Tischler, supra note 110, at 291-292. 132 See Zeran, 129 F.3d at 328-330. 133 See supra notes 108-111 and accompanying text. 134 See, e.g., Doe v. SexSearch.com, 502 F.Supp.2d 719, 722-724, 727 (N.D. Ohio 2007); Doe v. MySpace, 474 F.Supp.2d 843, 848-850 (W.D. Tex. 2007), aff’d, 528 F.3d 413, 418 (5th Cir. 2008); Ingber, supra note 89, at 431; Shahrzad T. Radbod, Craigslist: A Case for Criminal Liability for Online Service Providers? 25 BERKELEY TECH. L.J. 597 (2010). 135 Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 23 immunity.136
The crucial distinctions that define the extent of the Section 230 defense are illustrated by comparing two cases, both decided in 2008 and both involving websites that permitted users to apply discriminatory criteria in selecting roommates or tenants. The
Seventh Circuit, in Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v.
Craigslist, Inc., found the defendant protected by the Section 230 defense137 for third-party housing ads engaged in unlawful housing discrimination.138 However, the Ninth Circuit, sitting en banc in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, considered similar discrimination against protected classes (such as gender or religion)139 by users of a roommate search website, in violation of the Fair Housing Act, and determined that much of the service’s content was not protected by Section 230.140
Why the difference? Most crucially, the discriminatory postings in the Craigslist case were entirely created by the site’s users,141 with defendant Craigslist merely providing a forum for its users142 and making no attempt to change or filter third-party statements.143 By contrast, Roommates.com provided a questionnaire with numerous prewritten “dropdown” answers for users to choose among — some of which facilitated the discriminatory acts —
136 See, e.g., Roca Labs, Inc. v. Consumer Opinion Corp., No. 8:14-cv-2096-T-33EAJ (M.D. Fla. Oct. 21, 2015) (trimming third-party content to fit Twitter’s character limit and adding Twitter handles and links are traditional editorial functions); Advanfort Co. v. The Maritime Executive, LLC, No. 1:15-cv-220 (E.D. Va. July 28, 2015) (review and approval of a third- party article is not a “substantial contribution”); Huon v. Breaking Media, LLC, 75 F.Supp.3d 747 (N.D. Ill. 2014) (editing reader comments is a traditional editorial function); Braverman v. Yelp, Inc., 2013 N.Y. Slip Op. 31407(U) (N.Y. Sup. Ct. June 28, 2013) (removal of certain user-submitted reviews is a traditional editorial function). But see Moving and Storage, Inc. v. Panayotov, No. 12-12262-GAO (D.Mass. March 12, 2014) (review website run by moving company is not immune for deleting negative reviews of itself and positive reviews of competitors while misrepresenting the site’s independence). 137 See Chicago Lawyers, 519 F.3d at 666, 678-672. 138 See id. at 668. 139 2004 WL 3799488, at *1-*2 (C.D. Cal. Sept. 30, 2004). 140 Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1175-1176 (9th Cir. 2008) (en banc). The court reversed the contrary ruling of the district court. 141 See Chicago Lawyers, 519 F.3d at 666, 668, 671. 142 See id. at 671-672. 143 See id. at 668. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 24 which Roommates.com required users to answer before their roommate postings or searches could proceed.144 Section 230, the Ninth Circuit reasoned, provides no immunity for
“inducing third parties to express illegal preferences.”145 (The court did apply Section 230 to protect Roommates.com from liability for the “Additional Comments” portions of each submission, which were entirely written by the third-party users.)146
The court reasoned that, even though Roommates.com did not “create” content as a sole author would, it did “develop” third-party content and thereby “contribute[d] materially to the alleged illegality of the conduct.”147 This “developer” role,148 the court concluded, provided the basis for removing Section 230 immunity and treating Roommates.com as the publisher of content on its site.149
Section 230 cases continue to apply the principles elucidated in these precedents.150
In the most recent ruling, an attempt to hold Backpage civilly liable for injuries to sex trafficking victims prostituted through its service failed when the First Circuit ruled that
144 See Roommates.com, 521 F.3d at 1164-1165. 145 Id. at 1165. But see also Torati v. Hodak, 2014 N.Y. Slip Op. 31506(U) (N.Y. Sup. Ct. June 11, 2014) (soliciting criticism from third-party users does not destroy Section 230 immunity). 146 See Roommates.com, 521 F.3d at 1173-1174. 147 Id. at 1168. 148 Id. at 1165. For other applications of this basis for losing Section 230 immunity, see Diamond Ranch Academy, Inc. v. Filer, No. 2:14-CV-751-TC (D.Utah Feb. 17, 2016) (defendant who adds her own comments to third-party content and adopts third-party statements as her own is not immune from defamation claim); General Steel Domestic Sales, LLC v. Chumley, No. 14-cv-01932-REB-CBS (D.Colo. Aug. 18, 2015) (defendants are not immune for encouraging development of third-party statements by highlighting the portions of those statements that are actionable); Faegin v. LivingSocial, Inc., No. 14-cv-00418-WQH-KSC (S.D. Cal. March 16, 2015) (defendants are not immune from trademark and unfair competition claims over website that helps users create and distribute their advertising and promotional content); Ascend Health Corp. v. Wells, No. 4:12-CV-00083-BR (E.D.N.C. March 14, 2013) (publisher is not immune where she substantially altered third- party material and created content based on information from third parties); Hardin v. PDX, Inc., 227 Cal.App.4th 159 (2014) (defendant is not immune for intentionally modifying its software to distribute drug information with warnings of serious risks automatically omitted). 149 See Roommates.com, 521 F.3d at 1168. 150 See, e.g., Ricci v. Teamsters Union Local 456, 781 F.3d 25 (2nd Cir. 2015) (website host immune for allegedly defamatory union newsletter); GiveForward, Inc. v. Hodges, No. CV-15-830-WPL/KK (D.N.M. Jan. 25, 2016) (charity fundraising site immune for third-party fraud); Kimzey v. Yelp, Inc., 21 F.Supp.3d 1120 (W.D. Wash. 2014) (immunity for third-party content in search results); O’Kroley v. Fastcase, Inc., No. 3:13-0780 (M.D. Tenn. May 27, 2014) (same as Kimzey); Hinton v. Amazon.com, LLC, 72 F.Supp.3d 685 (S.D. Miss. 2014) (immunity for third-party ads selling recalled hunting equipment); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752 (Tex. App. 2014) (immunity for hosting “revenge porn” site); Hupp v. Freedom Communications, Inc., 221 Cal.App.4th 398 (2013) (news organization immune from defamation suit over reader comments); IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 25 source of liability, Backpage’s structure of classified ad listings and its policies for which users needed to pay for their postings, was a traditional editorial function that required treated
Backpage as the publisher of the sex trafficking postings.151
3. Section 230 Provides an Affirmative Defense to Most Criminal Culpability
Beyond civil liability, however, Section 230 also protects ISPs from being treated as accomplices or accessories to crimes committed using their services — even when the sites’ operators knew of the users or posts involved.152 Few cases involving criminal exposure under Section 230 have been heard, and most legal analysis in this area has depending on analogies to Section 230 civil immunity.153 However, the relevant law can be derived from careful comparison of two statutory provisions. One subsection of Section 230 permits federal criminal prosecutions:
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.154 At the same time, the word criminal is conspicuously absent from the subsection addressing state law:
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.155 Thus, Section 230 presents no barrier to criminal culpability under a federal statute, although some courts have been skeptical of attempts to shoehorn defendants’ actions into a federal
151 See Does v. Backpage.com, LLC, No. 15-1724 (1st Cir. March 14, 2016) (finding that “the complaint premises liability on the decisions that Backpage is making as a publisher with respect to third-party content”). The suit attempted to apply the TVPA’s provisions allowing civil liability for anyone who knowingly profits from sex trafficking. Id. 152 Section 230 does not require that the underlying content be lawful or eligible for First Amendment protection. See GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 759 (Tex. App. 2014) (“Plaintiffs fail to cite any authority that supports their position that only constitutionally protected content gives rise to immunity under Section 230. There is no provision in the CDA that limits its application to suits involving constitutionally protected material. Reading such an exception into the statute would undermine its purpose.” [internal citation omitted]). 153 See Walters, supra note 48, at 182, 185-186. 154 47 U.S.C. § 230(e)(1). 155 47 U.S.C. § 230(e)(3). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 26 criminal statute.156 State statutes, however, whether criminal or civil, will be subject to
Congress’ preemption authority if they attempt to impose the liability forbidden by Section
230: any legal claim whose genesis is treating an ISP as the publisher or speaker of a third- party statement.
This was the basis for using Section 230 to defeat a state prosecution of an Internet hosting company whose servers included a third-party website that displayed child pornography.157 Similarly, the Florida Supreme Court applied Section 230 to immunize AOL from criminal culpability after images used in its “chat room marketing” allegedly lured a minor into contact with an adult who perpetrated sex acts on him.158 In the most prominent case on this theme, Section 230 was found to bar a civil claim by the sheriff responsible for
Chicago that attempted to subject Craigslist to public-nuisance liability for the costs of prostitution arranged through its site.159 The heart of the claim was that Craigslist knowingly allowed sex trafficking ads to remain active on its site,160 which the federal district court found treated Craigslist as publisher of the ads.161 But the court also noted that, even if the case were presented as a state criminal prosecution, the result would be the same,162 so long as Craigslist merely provided a forum and did not create the unlawful ads itself or “induce” third parties to post them.163
Federal preemption through Section 230 also has been the basis for invalidating state
156 See Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 961 (N.D. Ill. 2009). 157 See Voicenet Communication v. Corbett, No. 04-1318, 2006 WL 2506318, at *1, *4 (E.D. Pa. Aug. 30, 2006) (comparing the language of 47 U.S.C. § 230(e)(1) with §§ 230(e)(2)-(3)). 158 See Doe v. America Online, 783 So. 2d 1010, 1011-1013, 1018 (Fla. 2001). 159 See Dart, 665 F.Supp.2d at 961. 160 Id. at 961-963. 161 Id. at 967-970. 162 Id. at 965, citing 47 U.S.C. § 230(e). 163 Dart, 665 F.Supp.2d at 968. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 27 statutes targeting sex trafficking through Craigslist, Backpage, and similar sites, passed in the wake of Boston’s “Craigslist killer” scare in 2009 and the failure of efforts the next year by state attorneys general to persuade Congress to reform Section 230.164 To date, statutes in
New Jersey,165 Tennessee,166 and Washington167 have been enjoined on Section 230 preemption grounds. Courts have repeatedly noted that Congress did not impose the “field” preemption168 that would bar all state efforts to legislate against online sex trafficking; only laws “inconsistent” with Section 230 are preempted.169 Section 230 does mean, however, that state statutes commonly used against accomplices or accessories to prostitution and other forms of sex trafficking are inapplicable to ISPs, for no reason other than that the nexus among the accomplice, the principal, and the criminal act has moved online.170
4. Section 230 Prevents Requiring ISPs to Act Against Sex Trafficking
Section 230 also effectively bars state and federal governments from requiring that sites take action.171 For example, a legal requirement that websites verify the ages of users posting content would be ineffective, because states and, in most circumstances, the federal government would be unable to impose any penalties for violating such a law.172 Similarly, government cannot require websites to monitor the content of third-party posts.173
164 See supra note 89 and accompanying text. 165 Backpage.com, LLC v. Hoffman, No. 13-cv-03952 (D.N.J. Aug. 20, 2013). 166 Backpage.com, LLC v. Cooper, 939 F.Supp.2d 805 (M.D. Tenn. 2013). 167 Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1261, 1273-1274 (W.D. Wash. 2012) 168 See, e.g., Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). 169 See, e.g., Zeran v. America Online, Inc., 958 F.Supp. 1124, 1131 (E.D. Va. 1997) (“Congress has clearly expressed an intent not to preempt the field.”), aff’d, 129 F.3d 327 (4th Cir. 1997); Leviston v. Jackson, No. 15-Civ-4563-KPF (S.D.N.Y. June 12, 2015) (Section 230 does not create exclusive federal question jurisdiction); McKenna, 881 F.Supp.2d at 1273. 170 See Dyer, supra note 108, at 851-853. 171 See, e.g., Caraccioli v. Facebook, Inc., 2016 WL 859863 (N.D. Cal. March 7, 2016) (refusing to remove a third-party Facebook page is shielded as a traditional editorial function); Okeke v. Cars.com, 40 Misc.3d 582 (N.Y.C. Civil 2013) (refusal to remove certain user-submitted reviews is a traditional editorial function). 172 See Backpage.com, LLC v. McKenna, 881 F.Supp.2d 1261, 1268-1269, 1273-1274 (W.D. Wash. 2012) (enjoining a Washington state statute to this effect as preempted by Section 230). 173 See Ingber, supra note 89, at 439-441 (discussing Dart v. Craigslist, Inc., 665 F.Supp.2d 961 (N.D. Ill. 2009)); Perer, supra note 67, at 832-833 (same). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 28
Even the many ads on sites such as Craigslist and Backpage that are flagrant solicitations of prostitution do not expose the sites to any enforceable requirement that they respond, so long as the requirement is premised on treating the site as the author or publisher of information submitted by a third party.174 This inability to require that websites act against third-party content identified as facilitating sex trafficking sets the United States apart from other advanced, Western countries.175
C. Existing Strategies to Get Around Section 230 Are Narrow or Unsuccessful
Section 230 immunity is not absolute.176 Its immense breadth, however, has meant that imposing liability on websites for anything other than directly creating content has been difficult. Although creative lawyering has been deployed on these issues, the Section 230 workarounds developed so far have not shown themselves able to consistently impose liability for website operators who ignore sex trafficking through their services.177
The plaintiff in Barnes v. Yahoo! Inc. successfully challenged an assertion of Section
230 immunity on a promissory estoppel theory after ISP employees pledged to remove third- party dating profiles falsely using the plaintiff’s personal information but then failed to do so.178 Although this approach remains viable, it provides no help in a case such as Zeran, where a plaintiff requests removal of third-party content but receives no promise of removal on which to rely.179 Additionally, the damages available probably would not be sufficient to deter a site’s operators from profitable conduct.180
174 See Ingber, supra note 89, at 439. 175 For example, Australia, Canada, the European Union, and the United Kingdom, among others, can force Internet hosts to remove or filter sex trafficking ads. See Omer, supra note 108, at 305-314; Vitale, supra note 37, at 110-112. 176 See Chicago Lawyers’ Com. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008). 177 See Perer, supra note 67, at 825. 178 570 F.3d 1096, 1098-1099 (9th Cir. 2009). 179 See id. at 1108. 180 See Perer, supra note 67, at 835, citing RESTATEMENT (SECOND) OF CONTRACTS § 90 (1981). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 29
Alternatively, some plaintiffs and commentators have urged extending the principle of the Supreme Court’s copyright ruling in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster,181 that “dual use” technologies, capable of both lawful and unlawful uses, can expose their creators to liability if the creators induced or encouraged third parties to engage in the unlawful uses.182 Bringing a sex trafficking case within the ambit of Grokster, however, requires showing purpose or intent by the defendant ISP to produce the unlawful use of its service; mere knowledge that such use often occurs is inadequate.183 Even sites that provide some prewritten content for users, but do not require its use as Roommates.com did, typically are held not be inducing unlawful third-party uses of their content.184
Some plaintiffs have attempted an indirect approach by suing the parties not protectd by Section 230, the third parties who created the content at issue, and then using the judgment against them (usually issued in default) to request a judicial order for the ISP to remove the content.185 However, from Zeran forward, decisions about whether to allow or remove content have been considered traditional editorial functions, and thus holding an ISP liable for these decisions means imposing a form of liability as a publisher, which Section 230 prohibits.186 Not surprisingly, this strategy has been unavailing in court.187
181 See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, 545 U.S. 913, 919-922, 936-937, 941 (2005). The case imposed a significant limitation on the “Betamax defense” that had protected other manufacturers of dual-use devices whose third-party purchasers used them unlawfully. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442, 456 (1984). 182 See Universal Comm. Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 415, 421 (1st Cir. 2007); Zac Locke, Asking for It: A Grokster-Based Approach to Internet Sites That Distribute Offensive Content, 18 SETON HALL J. SPORTS & ENT. L. 151, 155- 156 (2008). The finding of partial liability in Roommates.com bolsters this argument; see supra notes 144-149 and accompanying text. However, that case and others like it are not truly about defeating Section 230 immunity and more about showing that the publisher’s conduct does not fall within Section 230 to begin with. 183 See Universal Communication, 478 F.3d at 421 (quoting Grokster). 184 See Doe II v. MySpace, Inc., 96 Cal.Rptr.3d 148, 158 (Cal. App. 2009) (citing Roommates.com). 185 See Blockowicz v. Williams, 675 F.Supp.2d 912, 913 (N.D. Ill. 2009). 186 See supra notes 135-136 and accompanying text. 187 See Blockowicz, 675 F.Supp.2d at 913. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 30
D. Other Proposed Solutions Are Unlikely to Succeed
The most commonly proposed solution to the harms created or left unresolvable by broad Section 230 immunity is to call on Congress to revise the statute,188 perhaps by removing immunity altogether in criminal cases.189 However, relying on the vicissitudes of the political process to craft an effective solution is a questionable, if not utopian, approach to the problem,190 especially since sex trafficking has not been a consistent policy priority for the legislative or executive branches of the federal government.191
As several states have learned, Section 230 preempts any statute that limits a website operator’s discretion over what content to permit, and advocates of these approaches at the federal level have struggled to explain how they will avoid First Amendment violations.192
Other proposals have called for international regulation to address sex trafficking193 — perhaps a useful step but hardly an effective solution in light of the jurisdictional problems involved194 and the lack of any central point from which to regulate online media.195 In any event, global action against sex trafficking will require a leading role for the United States to be effective,196 pointing again the the importance of a unified, coherent domestic policy.
188 See, e.g., Dyer, supra note 108, at 861-862; Perer, supra note 67, at 825; Silvano, supra note 33, at 379. 189 This is the solution state attorneys general have advocated to Congress. See Farley et al., supra note 20, at 1085; Tischler, supra note 110, at 277-278. 190 See, e.g., Elizabeth Bewley, A New Form of “Ideological Capture”: Abortion Politics and the Trafficking Victims Protection Act, 8 HARV. L. & POL’Y REV. 229 (2014) (contending that sex trafficking has been caught up in abortion politics); Erin O’Brien, Prostitution Ideology and Trafficking Policy: The Impact of Political Approaches to Domestic Sex Work on Human Trafficking Policy in Australia and the United States, 36 J. WOMEN, POL. & POL’Y 191 (2015) (contending that sex trafficking has been caught up in prostitution politics); Alicia W. Peters, “Things That Involve Sex Are Just Different”: U.S. Anti-Trafficking Law and Policy on the Books, in Their Minds, and in Action, 86 ANTH. Q. 221 (2013) (contending that sex trafficking policy is manipulated by assumptions about sex and gender); Ronald Weitzer, The Social Construction of Sex Trafficking Ideology and Institutionalization of a Moral Crusade, 35 POL. & SOC’Y 447 (2007) (contending that sex trafficking policy has become dangerously politicized). 191 See Farley et al., supra note 20, at 1091; Hall, supra note 44, at 173-174. Birckhead, supra note 31, at 1078, argues that the TVPA also embodies a disconnect between American and international policy toward human trafficking. 192 See, e.g., Omer, supra note 108, at 318-320; Perer, supra note 67, at 854-858. 193 See, e.g., Vitale, supra note 37, at 127. 194 See Kalim, supra note 37, at 451. 195 See Ross, supra note 68, at 407-408. 196 See Vitale, supra note 37, at 121-122. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 31
V. Landowner Liability Can Avoid Section 230 Immunity in Some Sex Trafficking Cases
Our argument thus far has established three major points about barriers to addressing the harms of sex trafficking: intermediaries are key to facilitating those evils; a unified strategy against all intermediaries (online or offline, transnational or domestic, profiting directly or indirectly) is the most effective way to prevent the ultimate perpetrators from connecting with their victims; and Section 230 is the most significant obstacle to placing the most popular intermediaries, websites that specialize in interactive third-party postings, into the same legal position as other forms of intermediaries. In this section, we propose that ISPs can be subjected to civil and criminal liability for third-party sex trafficking on their sites, even if Section 230 remains intact, if two points are accepted. First, the relationship of an ISP to its websites and other services is legally analogous to the authority a private owner of real property has over his or her land. Second, ISPs as property owners are liable for injuries caused by foreseeable crimes originating from their property, even though they are not liable for the speech by which the perpetrators execute those crimes.
A. Real Property is an Appropriate Analogy for Ownership of Online “Places”
Policy-makers at all levels of government have long used analogies to the past to confront new situations.197 No less than the political branches of government, courts in recent years have used analogies to wrestle with new issues involving online media.198 The
197 YUEN FOONG KHONG, ANALOGIES AT WAR 3 (1992) (“The way they have invoked historical parallels when confronted with a domestic or foreign policy problem has ranged from the implausible to the prescient.”). Professor Khong contends analogies perform six essential “diagnostic functions” in making a decision. Id. at 20-21. See also Stephanie A. Gore, “A Rose By Any Other Name”: Judicial Use of Metaphors for New Technologies, 2003 U. ILL. J.L. TECH. & POL’Y 403, 404-406, 413-414 (2003); Dan Hunter, Cyberspace As Place and the Tragedy of the Digital Anticommons, 91 CALIF. L. REV. 439, 458- 462 (2003). 198 Susan M. Ballantine, Note, Computer Network Trespasses: Solving New Problems With Old Solutions, 57 WASH. & LEE L. REV. 209, 222 (2000); Gore, supra note 197, at 408-409, 415-424; Hunter, supra note 197, at 447-452, 473-475; Mark A. Lemley, Place and Cyberspace, 91 CALIF. L. REV. 521, 526-532 (2003); Maureen A. O’Rourke, Property Rights and Competition on the Internet: In Search of an Appropriate Analogy, 16 BERKELEY TECH. L.J. 561, 580 (2001). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 32
Supreme Court, in its first substantive Internet decision, described the technology by analogy:
The Web is thus comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services. From the publishers’ point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers.199 Other courts have similarly used analogies from the brick-and-mortar world to determine the relevant law in an online case.200 The heart of reasoning by analogy was summarized in an online contract case: “The scenario presented here is different [from precedents] because of the medium used, electronic versus printed; but, in any sense that matters, there is no significant distinction.”201
We need not repeat all the arguments of the many commentators who have demonstrated with breadth and perceptiveness that real property ownership is the most appropriate metaphor when discussing the access and use of a website rather than ownership of its content,202 nor the courts that have applied the incidents of real property ownership to resolve online disputes (even while purporting to use chattel principles).203
199 Reno v. American Civil Liberties Union, 521 U.S. 844, 853 (1997). 200 See, e.g., Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991) (analogizing online and printed contracts); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1451 (7th Cir. 1996) (analogizing online content to insurance binders, printed tickets for flights or concerts, and product warranties); Ticketmaster Corp. v. Tickets.com, Inc., 2000 WL 525390, *2 (C.D. Cal. 2000) (analogizing a hyperlink to a library card catalog), aff’d 2001 WL 51509 (9th Cir. 2001); Caspi v. Microsoft Network, LLC, 732 A.2d 528 (N.J. Super. 1999) (analogizing online and printed contracts). But see Specht v. Netscape Comm. Corp., 306 F.3d 17, 31 (2nd Cir. 2002) (finding substantial differences between online content and “the world of paper transactions”). 201 Caspi, 732 A.2d at 532. 202 See, e.g., Ballantine, supra note 198, at 250; Frank H. Easterbrook, Intellectual Property is Still Property, 13 HARV. J. L. & PUB. POL’Y. 108 (1991); Richard A. Epstein, Intellectual Property: Old Boundaries and New Frontiers, 76 IND. L. J. 804, 818-821 (2001); I. Trotter Hardy, The Ancient Doctrine of Trespass to Web Sites, 1996 J. ONLINE L. art. 7, at *17-*18, *23 (1996); Richard Warner, Virtual Borders: Trespass to Chattels on the Internet, 47 VILL. L. REV. 117 (2002). 203 See, e.g., Ticketmaster Corp. v. Tickets.com, Inc., No. CV99-7654 (C.D. Cal. Aug. 10, 2000) (“If the electronic impulses can do damage to the computer or to its function in a comparable way to taking a hammer to a piece of machinery, then it is no stretch to recognize that damage as trespass to chattels and provide a legal remedy for it.”); Register.com, Inc. v. Verio, Inc., 126 F.Supp.2d 238, 243, 250 (S.D.N.Y. 2000), aff’d, 356 F.3d 393 (2nd Cir. 2004); eBay, Inc. v. Bidder’s Edge, Inc., 100 F.Supp.2d 1058, 1065-1067 (N.D. Cal. 2000); CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015, 1021- 1023 (1997) (citing Thrifty-Tel, Inc. v. Bezenek, 54 Cal.Rptr.2d 468, 473-474 (Cal.App. 1996); Intel Corp. Inc. v. Hamidi, 30 Cal.4th 1342, 1361 (2003); Shyamkrishna Balganesh, Common Law Property Metaphors on the Internet: The Real Problem With the Doctrine of Cybertrespass, 12 MICH. TELECOMM. TECH. L. REV. 265, 326 (2006); Edward W. Chang, Bidding on Trespass: eBay, Inc. v. Bidder’s Edge, Inc., and the Abuse of Trespass Theory in Cyberspace Law, 29 AIPLA Q.J. 445, 459 (2001). For discussion of why these cases rest more on principles of realty than personalty, see Gore, supra note 197, at 450; Richard G. Kunkel, Protecting Consumers From Spyware: A Proposed Consumer Digital Trespass Act, 28 J. MARSHALL J. COMPUTER & INFO L. 185, 194 (2010). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 33
We will, however, summarize three general considerations that point toward ownership rights in real property as the appropriate analogy when considering the ISPs most likely to be used for sex trafficking communications.
1. A Utility Justification: A Real Property Analogy Recognizes the Interactive
Function of Websites as Separate From Their Informational Content
Attempts to apply common-law property concepts to the Internet have revived awareness of the inherent slipperiness in the notion of “property.”204 For the past century,
American law has treated ownership of land and buildings as at least the sum of its components, a “bundle of rights,” each capable of being independently held, sold, leased, or donated as the owner wishes.205 “Property” thus becomes not the object or land itself but rather the extent of what the owner can lawfully do with it,206 and a legal case then is not about an abstract philosophy of ownership but rather a specific right to authorize or prevent a given use of the land.207 Similarly, courts have repeatedly noted that the appropriate analogy in online disputes depends greatly on what offline function the
Internet replaces in the current case.208 As one federal district court observed, “The
Internet can be described by a number of different metaphors, all fitting for different feature and services that it provides.”209
Our emphasis here, as in any analogy in law, is not that some inherent characteristic of websites makes them comparable to land, but rather that they serve
204 See Balganesh, supra note 203, at 307-309 205 See J. E. Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. REV. 711 (1996). 206 See 63C AM. JUR. 2D Property §§ 9, 12 (2016); Ballantine, supra note 198, at 254. 207 See Borland v. Sanders Lead Co., Inc., 369 So.2d 523 (Ala. 1979) (intrusion on land creates a trespass not in reference to the land but because it interferes with the owner’s interest in exclusive possession); Mitchell v. Baltimore Sun Co., 883 A.2d 1008 (Md. App. 2005) (same), cert. denied, 889 A.2d 418 (Md. 2006). 208 See generally Gore, supra note 197, at 422-431. 209 EDIAS Software Int’l, LLC v. BASIS Int’l Ltd., 947 S.Supp. 413, 419 (D.Ariz. 1996). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 34 social functions in which the operator has a cognizable legal interest, just as landowners have recognized interests in what they are allowed to do or authorize with their property even against others’ wishes. A website devoted to social media or classified ads, especially, is not merely content but also the locus where contact and communication among users are established. Knowing a product or service is for sale (or requested) is valuable, but additional value is added by having an immediate means to communicate with the prospective seller or buyer and agree to a transaction. Thus, what we might call the transactional function of a website is distinct from its informational function, in the same way a brick-and-mortar store is distinct from the advertisements that bring customers to its location or the individual products on its shelves.
Professor O’Rourke suggests a similar distinction between a website as content and a website as a location.210 In her example, if a burglar breaks into a building (real property) to steal manuscript pages and copy them, the crime of breaking and entering is prosecutable even if copying the manuscript is not copyright infringement.211 “Once a court adopts this analogy [of real property],” Professor O’Rourke writes, “the focus shifts away from considering what a visitor may do with the information retrieved, and towards determining who may permissibly access the site.”212 Recognizing this distinction also allows us to lay aside most of the concerns about property analogies for online media, which tend to be rooted in criticism of “cybertrespass” as an extension of the law of trespass to chattels and address Internet content rather than the role of a website as a
210 See O’Rourke, supra note 198, at 581-582, 586-587 (describing two competing analogies courts use, a website as a book in a library and a website as a real-property location). 211 Id. at 580-581. 212 O’Rourke, supra note 198, at 587 (discussing incidents of real property ownership, including the right to exclude). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 35 replacing the social functions of real-world locations.213
2. A Pragmatic Justification: Users Think of the Internet in Spatial Terms
If we accept that the law must accommodate the lived reality of those expected to
obey it, then it is worth noting that ordinary people already think of online locations in
“space” terms.214 Professor Hunter offers a litany of examples of spatial nouns and verbs
commonly used to describe online activities.215 As Professor Hardy has noted, accessing
any information online allows users to “travel” by means of electronic impulses to
content located on servers in far-flung physical places.216 Individual servers or
computers can be moved, but the “place” (the URL, or website “address”) must remain
fixed,217 and its movement is as disruptive as a physical business relocating. The
widespread expectation that website locations are as immovable as buildings was
illustrated by public and media reactions in 2015 when Google briefly lost ownership of
its flagship google.com domain.218
3. An Equitable Justification: ISPs Avail Themselves of Property Ownership
213 See, e.g., Balganesh, supra note 203, at 331; James Boyle, The Second Enclosure Movement and the Enclosure of the Public Domain, 66 L. & CONTEMP. PROBS. 33 (2003); Steve Fischer, When Animals Attack: Spiders and Internet Trespass, 2 MINN. INTELL. PROP. REV. 139 (2001); Gore, supra note 197, at 451-454; Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition From Marx to Markets, 111 HARV. L. REV. 621 (1998); Lawrence Lessig, The Architecture of Innovation, 51 DUKE L. J. 1783 (2002). The concern is that extensive property rights would impose high costs on jumping from one website to another. See Patricia L. Bellia, Defending Cyberproperty, 79 N.Y.U. L. REV. 2164, 2170- 2171, 2180-2181 (2004); Dan L. Burk, The Trouble With Trespass, 4 J. SMALL & EMERGING BUS. L. 27, 53 (2000); Steven Kam, Note, Intel Corp. v. Hamidi: Trespass to Chattels and a Doctrine of Cyber-Nuisance, 19 BERKELEY TECH. L. J. 427, 448-452 (2004); R. Clifton Merrell, Note, Trespass to Chattels in the Age of the Internet, 80 WASH. U. L. Q. 675, 687-697 (2002); Laura Quilter, The Continuing Expansion of Cyberspace Trespass to Chattels, 17 BERKELEY TECH. L. J. 421 (2002). 214 See Hunter, supra note 197, at 453, 457-458. 215 Id. at 453, 460-461. 216 See Hardy, supra note 202, at *2. He notes this in contending that the traditional definition of “trespass” to real property is applicable to websites, where users “enter” and “remain.” Id. at *9 (discussing RESTATEMENT (SECOND) OF TORTS § 158). 217 See Kunkel, supra note 203, at 198-199. See also 63C AM. JUR. 2D Property § 11 (2016) (noting that real property by definition includes “such things as are permanent, fixed, and immovable”). 218 See, e.g., Arjun Kharpal, Man Buys Google.com for $12 for 1 Minute, Gets Reward, CNBC (Oct. 13, 2015, 6:43 AM), http://www.cnbc.com/2015/10/13/man-buys-google-domain-for-12-dollars-for-1-minute-gets-reward-gives-to-charity.html; Meg Wagner, Great “Googley” Moogly Payoff, N.Y. DAILY NEWS, Jan. 31, 2016, at 40; Yanan Wang, For a Minute, This “Fanboy” Ruled Google’s Domain, WASH. POST, Oct. 14, 2015, at A2. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 36
Rights and Thus Also Should Bear Its Liabilities
Because property is synonymous with the “bundle” of rights that constitute it,219 the presence of a property interest is identifiable wherever one is seen as legitimate in exercising the rights of ownership.220 Website operators, including those that qualify as
ISPs, do this routinely.221 The most central property right, the authority to exclude others,222 is shown in the terms of service that accompany most sites, the requirement on many sites that users pay to access features or license content, and the practice of
“banning” users or removing their content when they violate the site operator’s rules.223
The extent to which vast numbers of Internet users comply with such commands and even rely on them to protect their own, third-party content demonstrates that these claims of authority are largely viewed as legitimate.224 Indeed, given that websites must be connected to the world to be useful, a legal ability to exclude trespassers,225 as the owner of real property would, is the only way to preserve their integrity.226 Website operators also claim the benefits of other incidents of real property ownership, such as possession and control (the owner decides what the site will be used for and what content will appear), use and enjoyment (the owner keeps any money, know-how, goodwill, or other valuables submitted through the site), and disposal (in addition to selling its computer
219 See supra notes 204-206 and accompanying text. 220 On the element of legitimacy in a claim of real property ownership, see G. S. Rasmussen & Associates v. Kalitta Flying Service, Inc., 958 F.2d 896, 903 (9th Cir. 1992). 221 See Balganesh, supra note 203, at 266-267. 222 Id. at 310-312 (calling the right to exclude “the common minimum” among all conceptualizations of profit). 223 See Hunter, supra note 197, at 504-507. 224 See, e.g., Alex Hern, I Read All the Small Print on the Internet and It Made Me Want to Die, GUARDIAN (London) (June 15, 2015, 6:56 AM), http://www.theguardian.com/technology/2015/jun/15/i-read-all-the-small-print-on-the-internet (reporting observations from one week not using any website or online service until reading its entire terms of use). 225 See O’Rourke, supra note 198, at 613-614 (explaining trespass as a viable framework for analogizing online unauthorized-access cases to traditional property law). 226 Id. at 592, quoting Brief of Amici Curiae Reed Elsevier et al., at 7, in eBay, Inc. v. Bidder’s Edge, Inc., 100 F.Supp.2d 1058 (N.D. Cal. 2000). See also Kunkel, supra note 203, at 200. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 37 equipment, the owner of a website may sell the domain address itself).227 It would be the picture of injustice to allow websites to claim the benefits of real property ownership with none of the corresponding legal duties.
It is no doubt true that a poorly chosen or misapplied analogy can mislead rather than enlighten those who use it, including courts.228 However, courts in online-law cases have generally been perceptive and flexible in recognizing the limits and imperfections in their analogies and acknowledging differences between the physical and online worlds.229
Merely accepting the real property metaphor does not require any universal legal conclusions.230 An analogy in law does not require saying “A is B” but rather “for purposes of law, it is just and useful to treat A as if it were B.”
B. Ownership of Real Property Imputes a Duty Against Foreseeable Crimes
In general, a property owner has no civil liability to invitees or others rightfully on the property for injuries caused by a third party’s crimes.231 However, when a property owner knows or should know crimes are likely to occur that would endanger invitees or others lawfully on the property,232 a duty is imputed to the owner to exercise ordinary care to protect others on the property from injuries stemming from the anticipated crimes.233
227 See 63C AM. JUR. 2D Property § 27 (describing the incidents of real property ownership). 228 As Justice Cardozo put it, “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” Berky v. Third Ave. Ry. Co., 155 N.E. 58, 61 (N.Y. 1929). See also Lemley, supra note 198, at 542 (urging courts and commentators not to “reify” the real-property analogy). 229 See David Hricik, Reading Too Much Into Nothing: The Metaphor of Place and the Internet, 55 MERCER L. REV. 859, 862-863 (2004); David McGowan, The Trespass Trouble and the Metaphor Muddle, 1 J.L. ECON. & POL’Y 109, 113, 125 (2005). 230 See Hunter, supra note 197, at 452 231 See, e.g., Williams v. Cunningham Drug Stores, Inc., 418 N.W.2d 381, 502 (Mich. 1988); Scalice v. Kullen, 710 N.Y.S.2d 632, 632 (App. Div., 2nd Dep’t 2000); Ralls v. Noble Roman’s Inc., 491 N.E.2d 205, 209-210 (Ind. App. 1986); Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60, 65 (Tex. App. 1983). 232 See RESTATEMENT (SECOND) OF TORTS § 344, comment f (property owner “is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur”). See also Flood v. Southland Corp., 616 N.E.2d 1068 (Mass. 1993); Abernethy v. Spartan Food Systems, Inc., 404 S.E.2d 710, 712 (N.C. App. 1991). 233 See Flood, 616 N.E.2d at 1075-1076. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 38
The “circumstances” that should put a property owner on notice of the likelihood of crime include creating a climate that attracts criminals or is conducive to committing crimes, or a pattern of previous similar crimes.234 However, owners are not necessarily entitled to
“one free crime” before the duty to protect invitees attaches;235 the duty arises out of all circumstances surrounding the property and known to the owner.236 Whenever the duty arises, failure to exercise ordinary care to protect invitees from reasonably foreseeable crimes creates a cause of action for negligence by an invitee injured by such a crime.237
Real property owners held liable for injuries caused by crimes on their property include a landlord who knew of a tenant’s pattern of threats against fellow tenants prior to a fatal shooting by that tenant;238 a bar manager who left a customer alone with an employee who was intoxicated and angry with the customer and then assaulted him;239 a restaurant owner who did not call police or warn entering customers when trespassers who had become violent left but followed through on their threat to return with weapons;240 and the operators of a farmer’s market who knew of violent hostility between two vendors but did not take reasonable care to prevent a shootout between them that injured a third party.241
234 Common tests for a crime’s foreseeability include the foreseeability of the “specific harm” the plaintiff suffered, the occurrence of “prior similar incidents,” and the “totality of the circumstances.” See L.A.C. v. Ward Parkway Shopping Center Co., 75 S.W.3d 247, 256 (Mo. 2002). For applications, see, e.g., Liszewski v. Target Corp., 374 F.3d 597, 600 (8th Cir. 2004); Grisham v. Wal-Mart Stores, Inc., 929 F.Supp. 1054, 1058 (E.D. Ky. 1995), aff’d, 89 F.3d 833 (6th Cir. 1996); Shortt v. Richlands Mall Associates, 781 F.Supp. 454, 458-459 (W.D. Va. 1991); Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991); Bailey v. Bruno’s, Inc., 561 So.2d 509, 511 (Ala. 1990); Wright v. Webb, 362 S.E.2d 919, 920 (Va. 1987); Martinko v. H-N-W Associates, 393 N.W.2d 320, 322 (Iowa 1986); Wood v. Centermark Properties, Inc., 984 S.W.2d 517, 524 (Mo. App. 1998) (opinion reinstated 1999); Reidy v. Burger King Corp., 673 N.Y.S.2d 441 (App. Div. 1998). 235 Martinko, 393 N.W.2d at 322. 236 See Ann M. v. Pacific Plaza Shopping Center, 863 P.2d 207 (Cal. 1993). 237 See Waldon v. Housing Authority of Paducah, 854 S.W.2d 777, 779 (Ky. App. 1991) (“Even an intervening criminal act does not relieve one for his liability for his or her negligent acts or omissions, where the criminal act is a reasonably foreseeable consequence of the defendant’s negligent act.”). See also Nail v. Jefferson County Truck Growers Ass’n, 542 So.2d 1208, 1212 (Ala. 1989); Williams v. Cunningham Drug Stores, Inc., 418 N.W.2d 381, 500 (Mich. 1988); Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La. 1984); Miller v. B.H.B. Enterprises, 568 S.E.2d 219, 226 (N.C. App. 2002). 238 See Waldon, 854 S.W.2d at 779. 239 See Miller, 568 S.E.2d at 226. 240 See Abernethy, 404 S.E.2d at 713. 241 See Nail, 542 So.2d at 1212. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 39
C. ISPs as Property Owners Can Be Subject to Civil Liability for Sex Trafficking
As Roommates.com and subsequent cases have made clear, the determination that an online site or service is acting as an ISP does not provide blanket civil immunity; it means only that the ISP may not be treated as the publisher or speaker of content on its site.242 This has allowed ISPs to be stripped of Section 230 immunity in three kinds of civil cases: where the ISP created or participated in creating the content at issue,243 where the ISP induced others to create tortious content,244 or where the ISP voluntarily undertook a duty of removing or redressing the content and failed to do so (promissory estoppel).245 The common theme in these cases is that the source of liability, the genesis of a breached duty, was not found merely in the content moving through the ISP. Civil liability for an ISP appears to require knowledge of the tortious content plus some duty that does not arise from the third- party content itself, knowledge of the substance of that content, or decisions about publishing or removing content that are akin to traditional editorial functions.
Once such a duty is established, however, the cases also show that the tortious or otherwise unlawful nature of the complained-of content is relevant to determining whether the ISP failed to uphold that duty. Thus, for example, in Barnes, considering the nature of the
242 See Barnes v. Yahoo! Inc., 570 F.3d 1096, 1100, 1107-1109 (9th Cir. 2009); Opperman v. Path, Inc., 87 F.Supp.3d 1018, 1042 (N.D. Cal. 2014); Jeffrey R. Doty, Inducement or Solicitation? Competing Interpretations of the “Underlying Illegality” Test in the Wake of Roommates.com, 6 WASH. J.L. TECH. & ARTS 125, 129-132 (2010); Dyer, supra note 108, at 845; Eric Weslander, Murky “Development”: How the Ninth Circuit Exposed Ambiguity Within the Communications Decency Act, and Why Internet Publishers Should Worry, 48 WASHBURN L.J. 67, 290-297 (2008). 243 See, e.g., Diamond Ranch Academy, Inc. v. Filer, No. 2:14-CV-751-TC (D.Utah Feb. 17, 2016); Perkins v. LinkedIn Corp., 53 F.Supp.3d 1122 (N.D. Cal. 2014); Malibu Media, LLC v. Does, No. 2:13-CV-135-RLM-JEM (N.D. Ind. March 17, 2014); Moving and Storage, Inc. v. Panayotov, No. 12-12262-GAO (D.Mass. March 12, 2014); Ascend Health Corp. v. Wells, No. 4:12-CV-00083-BR (E.D.N.C. March 14, 2013); Hardin v. PDX, Inc., 227 Cal.App.4th 159 (2014); NPS, LLC v. StubHub, Inc., No. 06-4874-BLS1 (Mass. Super. Ct. Jan. 26, 2009). 244 See, e.g., J.S. v. Village Voice Media Holdings, LLC, No. 90510-0 (Wash. Sept. 3, 2015) (Backpage would lose its Section 230 immunity if plaintiffs could demonstrate it designed its third-party posting rules to induce posting of sex trafficking ads); General Steel Domestic Sales, LLC v. Chumley, No. 14-cv-01932-REB-CBS (D.Colo. Aug. 18, 2015); Opperman, 87 F.Supp.3d at 1044-1045. 245 See Barnes, 570 F.3d at 1107-1109. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 40 content to establish that it was wrongful and was the cause of Barnes’ legal injury was held not to conflict with Section 230, because Yahoo’s duty to Barnes originated in promissory estoppel, not the tortiousness of the content itself.246
The principle also holds true in non-negligence cases. In Demetriades v. Yelp, Inc., the plaintiff brought a false-advertising claim under state statutes, alleging that he purchased advertising on Yelp’s website based largely on the defendant’s claim that it “uses a filter to give consumers the most trusted reviews.”247 However, he further alleged, the actual presentation of reviews in the site’s various features demonstrated that the filter did not effectively distinguish between suspicious reviews and those that appeared to come from actual customers,248 injuring him both as an advertiser and as the owner of several restaurants being reviewed.249 Here again, the content of the underlying third-party postings was allowed as evidence of Yelp’s breach of its obligations to the plaintiff advertiser. Yet the California
Court of Appeal held that Section 230 did not apply, because the origin of the defendant’s duties was its own statements regarding the accuracy of its filter, and hence the value to a potential advertiser of the filtered third-party content.250
Thus, the overarching rule seems to be that an interactive computer service may be held civilly liable for the content of third-party postings it had no role in creating, developing, or inducing others to create, so long as the basis for liability is not the fact that the postings were set before the public in the first place, or the decisions and procedures that allowed such publication to occur. Further, it seems that introducing the unique content of particular
246 See id. at 1107. 247 Demetriades v. Yelp, Inc., 228 Cal.App.4th 294, 300 (2014). 248 Id. at 301. 249 Id. at 301-302. 250 See id. at 313. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 41 postings — that is, the fact that a posting made a certain statement about a particular subject and not a different statement about some other subject — against the ISP does not amount to publisher liability if the content is used to establish breach of a duty or that the third-party content caused a plaintiff’s injuries (or the equivalent concepts in non-negligence or non-tort civil actions). Section 230 immunity, then, applies only where the substance of the third-party content is relied on to prove both the existence of a duty and the injury-causing breach.
1. An ISP Owes Its Users a Duty of Ordinary Care Against Foreseeable Crimes
If an ISP’s website is analogous to real property, and its users “enter” and “remain” on the property by connecting electronically, it follows logically that a user who complies with the site operator’s terms of use and thus is a lawfully present invitee during the entire visit to the site251 would have a cause of action for injuries suffered because of the ISP’s failure to take reasonable preventive measures against foreseeable crimes on or originating from the
ISP’s property. Beyond mere analogy by similarity, the rationales behind landowner liability for foreseeable crimes apply in the case of an ISP and its user invitees. First, like shoppers in a brick-and-mortar store, ISP users have limited ability to implement their own security measures, since they do not control the site infrastructure or have a say in what information is provided to them about fellow users. They therefore must entrust themselves in a large degree to whatever safety measures the property owner has in place.252 Second, having been invited onto the property for the purpose of engaging with the property owner’s business, ISP users
251 See, e.g., Abernethy v. Spartan Food Systems, Inc., 404 S.E.2d 710, 711 (N.C. App. 1991) (“It is well established that an individual who enters the premises of a store as a customer during business hours holds the status of a business invitee for purposes of establishing the duty owed to the individual by the owner of the premises.”). 252 See, e.g., Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991); Williams v. Cunningham Drug Stores, Inc., 418 N.W.2d 381, 499 (Mich. 1988); Wood v. Centermark Properties, Inc., 984 S.W.2d 517, 524 (Mo. App. 1998) (opinion reinstated 1999). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 42 reasonably expect that, even if the ISP does not actively monitor content for probable crimes, it will at least warn users when it has specific information about a danger to them.253
Section 230 still would protect an ISP from a duty to monitor all postings, though the
ISP would be liable for any employee knowledge that could be imputed to it. Mere knowledge of postings’ content would not by itself impose liability for that content, just as the property owners in brick-and-mortar cases are not held to be publishers or speakers of threats made against their business or customers but still are held liable for breaching a duty regarding that knowledge. Additionally, a landowner’s duty regarding foreseeable crimes is based on its knowledge of any relevant circumstances, including past crimes and the dangers of its location. Thus, knowledge of the likelihood of crimes can comes from outside sources or from circumstantial evidence other than the content of third-party postings. The strongest case for the ISP’s knowledge and resulting duty to act would be if law enforcement (or, potentially, a credible private party) had provided detailed, specific information about the danger posed by a particular user.
Whether a crime is foreseeable will be a central point of contention.254 A plaintiff who is lured into an ambush via third-party postings through the ISP, but first breaks his ankle on the would-be perpetrator’s poorly maintained sidewalk, would not be able sustain a
253 This was substantially the reasoning the Ninth Circuit used in its withdrawn but not superseded opinion in Doe No. 14 v. Internet Brands, Inc., 767 F.3d 894 (9th Cir. 2014), withdrawn 778 F.3d 1095, 1096 (9th Cir. 2015), reargued April 8, 2015: Jane Doe also does not claim to have been lured by any posting that Internet Brands failed to remove. Instead, Jane Doe attempts to hold Internet Brands liable for failing to warn her about how third parties targeted and lured victims through Model Mayhem. The duty to warn allegedly imposed by California law would not require Internet Brands to remove any user content or otherwise affect how it publishes such content. Any obligation to warn could have been satisfied without changes to the content posted by the website’s users. Id. at 898. As of late March 2016, a search of federal court records found no further filings in the case. 254 See Martinko v. H-N-W Associates, 393 N.W.2d 320, 321 (Iowa 1986) (“The nub of this section [of the Restatement] is foreseeability”); Miller v. B.H.B. Enterprises, 568 S.E.2d 219, 225-226 (N.C. App. 2002) (“[W]hether a proprietor has a duty to safeguard his invitees from injuries caused by the criminal acts of third persons is a question of foreseeability.”). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 43 claim against the ISP. However, if the plot against the plaintiff is carried out as planned, the
ISP can be held liable, even if it did not know the details of what the perpetrators planned to do. As the Eighth Circuit has stated:
Foreseeability does not require identical crimes in identical locations. Rather, an offense is reasonably foreseeable and a duty arises under circumstances where prior reports of criminal activity or other similar acts on or near the site are sufficient in number, sufficiently similar to, and sufficiently close in time to the immediate offense to place a business on notice of the need to protect its invitees from that general type of risk.255 Thus, for example, in Flood v. Southland Corp., the fact that young men had gathered outside a store, were using narcotics, and had displayed knives was held sufficient to impute to the property owner knowledge that a stabbing was likely and a duty to take preventive measures, even though the perpetrator, victim, and precise manner or degree of injury were not foreseeable.256
Once a duty is established, the reasonable preventive measures an ISP can be required to take may not include removing third-party postings, because decisions about removing such content are traditional editorial functions.257 However, a number of other potential measures are available, such as notifying law enforcement, warning a user of a particular danger, providing information to all users about ongoing crimes and their signs and dangers,258 or making tools available to help users determine the real-world ideas of those they do business with.
Although some cases have found that a duty to warn users amounts to publisher liability, those cases involved a putative duty that arose from nothing more than the substance
255 Liszewski v. Target Corp., 374 F.3d 597, 599 (8th Cir. 2004) (internal quotes and citations omitted). 256 See Flood v. Southland Corp., 616 N.E.2d 1068 (Mass. 1993). 257 See Barnes v. Yahoo! Inc., 570 F.3d 1096, 1103 (9th Cir. 2009): “[R]emoving content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.” See also Chicago Lawyers’ Com. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008). 258 See, e.g., O’Hara v. Western Seven Trees Corp., 75 Cal.App.3d 798, 802 (1977) (landlord’s breach of duty against foreseeable crimes included failure to share information about a serial rapist, including a composite sketch, with tenants). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 44 of third-party submitted content.259 The Ninth Circuit upheld a duty-to-warn argument where the defendant’s alleged knowledge of a “rape scheme” was not linked to a failure to remove third-party content but rather to a knowing failure to warn users that such conspiracies were common on the site.260 On a theory of a landowner’s premises liability, an ISP’s knowledge of unlawful content might be relevant to proving the breach of the duty but has no bearing on the duty itself. Thus, an ISP is not being subjected to publisher liability if its duty to warn (or to contact law enforcement) arises not from any responsibility for the content itself or the fact that the content was published, but rather as the owner of the website from which foreseeable crimes are originating, no matter what the source of the knowledge that has made such crimes foreseeable.
2. An ISP’s Liability Includes Foreseeable Offline Injuries From Crimes Begun
Online
Even if an ISP can be held liable for foreseeable crimes committed entirely on its virtual property (e.g., fraud, extortion, terroristic threats), can the owner of a virtual “place” be held liable for crimes that by their nature must occur in the offline world? Yes, under the principle that a landowner’s duty to take reasonable measures against foreseeable crimes extends beyond property line.261 So long as the duty of ordinary care is breached on the landowner’s property, any foreseeable crimes that result become sources of liability. Thus, for example, in several cases, property owners who allowed guns to be stored on their
259 See, e.g., Doe v. MySpace, Inc., 474 F.Supp.2d 843, 849 (W.D. Tex. 2007); Doe v. SexSearch.com, 502 F.Supp. 719, 727 (N.D. Ohio 2007). In the most recent failed duty-to-warn argument, the plaintiff could show no breach by a dating website other than its failure to give a generic warning that users’ profiles might contain false information. See Beckman v. Match.com, No. 2:13-CV-97 JCM (NJK) (D.Nev. May 29, 2013). 260 See Doe No. 14 v. Internet Brands, Inc., 767 F.3d 894, 896 (9th Cir. 2014), withdrawn 778 F.3d 1095, 1096 (9th Cir. 2015), reargued April 8, 2015. 261 See RESTATEMENT (SECOND) OF TORTS §§ 364, 371; De Ryss v. New York Cent. Rail. Co., 9 N.E.2d 788 (N.Y. 1937). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 45 properties were held liable when invitees whose access to those weapons was foreseeable used them in crimes committed elsewhere.262
Precise definition of every part of the plaintiff’s case will be essential. The defendant is chargeable not with knowledge of the content of third-party postings but rather with knowledge of the likelihood of crimes similar to those that injured the plaintiff. The duty is not a duty to monitor or remove third-party content but rather a duty to take any other reasonable measures to prevent foreseeable crimes. Foreseeability must be specific and individualized to the case: either this perpetrator’s criminality or this plaintiff’s victimization must have been foreseeable, even if the details were not. (Foreseeability based solely on a type of crime, unless it is exactingly specific, probably will be held equivalent to imposing publisher liability based on the content of third-party postings.)
D. An ISP Can Be Complicit in the Result of Crimes Committed Via Its Property
As Professor Walter has noted, the less-developed law of criminal immunity under
Section 230 has largely been surmised from analogies to the more common civil cases.
Section 230 by its terms does not bar federal criminal culpability, although it does foreclose civil liability for violating federal criminal statutes.263 However, given that the vast majority of sex trafficking becomes visible to law enforcement through ordinary prostitution arrests, it would be advantageous for state and local prosecutors, not just the federal level, to be empowered to bring cases against online intermediaries in sex trafficking.264 As with civil liability, this would contribute to placing all sex trafficking intermediaries in the same legal
262 See Jupin v. Kask, 447 Mass. 141, 151-154 (Mass. 2006); Volpe v. Gallagher, 821 A.2d 699 (R.I. 2003). 263 See Doe v. Bates, No. 5:05-CV-91-DF-CMC, 2006 WL 3813758, at *3, *5 (E.D. Tex. Dec. 27, 2006). 264 See Andrew Hall, The Uniform Act on Prevention of and Remedies for Human Trafficking, 56 ARIZ. L. REV. 853 (2014) (contending that efforts against human trafficking must succeed at the state level or not at all). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 46 position, simplify the knowledge and strategies needed to obtain convictions, and eliminate much of the confusion that has hindered state and local prosecutors from charging sex trafficking offenses.265
State criminal prosecutions of ISPs are permitted under Section 230 so long as they are “consistent” with ISP immunity.266 ISPs have been held culpable in third parties’ criminal content where the ISP explicitly solicited the content,267 induced third parties to create it,268 or helped to “develop” third-party content in ways that “contributed materially to the alleged illegality of the conduct.”269 However, Section 230 immunizes ISPs from criminal charges commonly brought against intermediaries in sex trafficking, such as solicitation or conspiracy, because those charges require treating ISPs as the speakers of solicitations on their sites or, in the case of conspiracy, proving a shared criminal objective with third-party posters and an overt act toward achieving that objective. Professor Walters summarizes the difficulties in prosecuting ISPs as lack of duty, lack of knowledge, and lack of intent. Lack of a duty to monitor third-party content, he contends, prevents ISPs from acquiring knowledge of criminal activity associated with that content, and a lack of knowledge then prevents the
ISP from forming the intent required for criminal culpability.270
However, the fact that ISPs cannot be required to monitor postings need not prevent them from acquiring knowledge about that content in other ways. Thus, it remains possible to hold ISPs accountable for sex trafficking postings of which they have knowledge, without
265 See Farley et al., supra note 20, at 1044, 1065-1066, 1086. 266 See supra notes 155 and 169 and accompanying text. 267 See Dyer, supra note 108, at 845 (citing cases). 268 See People v. Gourlay, 2009 WL 529216, at *1 (Mich. App. 2009); NPS, LLC v. StubHub, Inc., 2009 WL 995483, at *3, *12-*13 (Mass. Super. Ct. Jan. 26, 2009). 269 See Dyer, supra note 108, at 845. The vague boundaries of “contributing materially” have created uncertainty around Section 230’s protection against criminal culpability. See Doty, supra note 242, at 126; Locke, supra note 182, at 151. 270 See Walters, supra note 48, at 190. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 47 imposing a duty to monitor. Moreover, not all theories of accomplice liability require proving intent. One promising approach would involve applying a “complicity in the result” statute similar to that in place in Kentucky.
1. Kentucky’s Complicity Statute Allows Criminal Culpability Without Intent
Kentucky’s criminal complicity statute271 essentially enacts principles of accomplice liability contained in the Model Penal Code.272 However, Kentucky seems to have produced a body of case law not found in other jurisdictions on imposing accomplice liability without the intent that the principal actor succeed in a criminal objective.
Kentucky’s statute provides two bases for accomplice culpability. One is a traditional accomplice statute requiring a principal whose actions themselves are criminal; the intent to facilitate the criminal conduct; and an act of solicitation, conspiracy, or some other form of assistance in committing the crime.273
The other half of the statute provides for culpability when the result of a course of conduct will be criminal and the defendant assists the principal in achieving the result.274 The
“complicity to the result” does not require intent, but instead is satisfied by “the kind of culpability with respect to the result that is sufficient for the commission of the offense.”275
Thus, culpability for complicity to the result attaches when the result of the principal’s action, including unintended results, is a crime276 and the accomplice to those actions had the required mens rea (wantonness, aggravated wantonness, or recklessness) for the underlying
271 KY. REV. STAT. § 502.020. 272 Compare KY. REV. STAT. § 502.020(1) (complicity in the act) with Model Penal Code § 2.06(3)(a) (1962); compare KY. REV. STAT. § 502.020(2) (complicity in the result) with Model Penal Code § 2.06(4). 273 KY. REV. STAT. § 502.020(1) 274 KY. REV. STAT. § 502.020(2). 275 Id. 276 See Crockett v. Cumberland College, 316 F.3d 571, 581 (6th Cir. 2003) (applying Kentucky state law). IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 48 crime.277
To be guilty of complicity in the result, a defendant must either participate actively in the principal’s achievement of the criminal result, or breach a legal duty to prevent the principal’s actions, with the required state of mind but without the intent that the principal succeed in the crime.278 The principal’s state of mind is irrelevant; complicity in the result requires proof that the accomplice had whatever mens rea would be required for the underlying crime, not that the accomplice and the principal shared that state of mind.279
Thus, for example, a mother who acquiesced as her live-in boyfriend inflicted a series of abusive “discipline” techniques was found complicit in the result of the child’s death, because ignoring the child’s injuries reflected the same mental state of aggravated wantonness that would be required if she were charged with inflicting the injuries herself.280
2. ISPs Can Be Complicit in the Result on a Mens Rea as Low as Recklessness
Kentucky’s statute on complicity in the result allows a conviction on a mental state as low as recklessness if recklessness would suffice for conviction of the underlying crime. This is true even if the principal commit the crime intentionally, negligently, or any state of mind in between. Examples of crimes requiring only recklessness for conviction include manslaughter,281 assault,282 and reckless endangerment.283 Homicide and assault also are the premier examples of “result” crimes that depend on completion of the criminal objective (i.e.,
277 See Tharp v. Commonwealth, 40 S.W.2d 356, 360-361 (Ky. 2000). 278 See id. at 361. 279 See Harper v. Commonwealth, 43 S.W.3d 261, 267 (Ky. 2001). 280 See Peacher v. Commonwealth, 391 S.W.2d 821, 854-855 (Ky. 2013). The mother’s duty to act in defense of her child was established by statute. 281 MODEL PENAL CODE § 210.3(1)(a). 282 MODEL PENAL CODE § 211.1(1)(a). 283 MODEL PENAL CODE § 211.2. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 49 death or injury).284
Because “actively participating” in any endeavour with third-party content creators would remove an ISP’s Section 230 immunity,285 regardless of the underlying crime or the
ISP’s knowledge of it, the most significant utility of a complicity in the result statute will be allowing criminal culpability based on failure to uphold a duty to take appropriate action to prevent the principal actor’s crime. The property owner’s duty to act against foreseeable crimes to invitees286 thus could open an ISP to criminal culpability if its breach of that duty rose to the level of recklessness.
While an ISP still could not be required to monitor its third-party content, knowledge it did acquire — for example, from law enforcement — could be used to establish awareness of a substantial risk to someone within the ISP’s zone of duty. The recklessness inherent in disregarding that risk would make the ISP complicit in the result of the principal actor’s crime, even if the principal committed the crime by accident. As discussed earlier with regard to civil claims, the reckless disregard of a substantial risk could not be shown by the ISP’s failure to remove content, since this would violate the heart of Section 230. Any other reckless disregard, however, such as failing to warn a site user or third party, or a refusal to cooperate with law enforcement, would be unrelated to the ISP’s role as a publisher.
VI. Conclusion
In the First Amendment context, it is well-established law that the special rights of publishers do not extend to every act or transaction by those who happen also to be engaged
284 See Young v. Commonwealth, 426 S.W.3d 577, 581 (Ky. 2014). 285 See, e.g., Federal Trade Comm’n v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009); Xcentric Ventures, LLC v. Smith, No. C 15-4008-MWB (N.D. Iowa Sept. 4, 2015); People v. Gourlay, 2009 WL 529216, at *5 (Mich. App. 2009). 286 See supra notes 231-241 and accompanying text. IMMUNITY UNDER SECTION 230 IN SEX TRAFFICKING CASES 50 in publishing.287 We argue for the implications of a similar principle here. An ISP’s Section
230 immunity from publisher liability does not mean that every act or omission by that ISP is the act of a publisher. By recognizing the ways ISPs act in roles other than that of publishers to carry out their publishing business, civil plaintiffs and state and local prosecutors can hold
ISPs accountable for their role in facilitating sex trafficking.
The evils of sex trafficking cannot be mitigated effectively without targeting the intermediaries who connect buyers and sellers and thus make large-scale trafficking possible and profitable. Today, digital intermediaries are even more pernicious than those who sell human beings on shadowy streetcorners or through illicit tourism. The ideal solution would be for Congress to exercise the same legislative authority that enacted Section 230 to revise or repeal it. Absent a showing that political realities will permit this, however, we have suggested avenues premised on the status of ISPs not as content hosts but as property owners.
Having acquired the privileges of property ownership, they should and can be held to the same liability as any others who recklessly allow their property to be used for criminal acts.
287 See, e.g., Associated Press v. Nat’l Labor Rel. Board, 301 U.S. 103 (1937) (publishers subject to labor laws); Associated Press v. United States, 326 U.S. 1 (1945) (antitrust laws); Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury subpoenas); Citizen Publ. Co. v. United States, 394 U.S. 131 (1969) (antitrust laws); Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (contract law); Leathers v. Medlock, 499 U.S. 439, 447 (1991) (general taxes); Minneapolis Star and Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 581 (1983) (general taxes); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946) (labor laws); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576-79 (1977) (copyright laws).