Portman, McCaskill Urge Changes to Online Liability Law

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By Alexis Kramer

Ohio Republican Sen. Rob Portman and Missouri Democratic Sen. Claire McCaskill will urge fellow lawmakers to revisit the Communications Decency Act, a federal law that shields online publishers from liability for third-party content, Portman said Jan. 10.

Small changes are needed to the relevant part of the law to “bring it up to speed to what’s happened now,” Portman, chairman of the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations, told reporters after a hearing on online classified site Backpage.com LLC’s alleged facilitation of sex trafficking.

Critics argue the law grants overly broad protection to online content providers, making it difficult for individuals to seek relief for harms allegedly suffered as a result of content found online. But supporters say the law’s broad protection is necessary to encourage the free flow of information over the internet. The lawmakers’ remarks came one day after the U.S. Supreme Court declined to review a decision that Section 230 of the law protected Backpage.com from liability for claims that it enables sex trafficking ( Doe v. Backpage.com LLC, U.S., No. 16-276, cert. petition denied 1/9/17 ).

Backpage.com has relied on Section 230 as a defense in a number of similar court cases. Backpage has argued that it doesn’t develop the content on its site, and that its process for posting ads amounts to traditional publisher functions protected under the law.

The subcommittee issued a report Jan. 9 saying Backpage systematically deleted hundreds of words and phrases indicative of sex trafficking from third-party ads, prior to their publication, so the ads would not be detected as illegal.

McCaskill, the subcommittee’s ranking member, told reporters that the positions Backpage has taken in court are “in direct opposition” to the panel’s findings. “We want to be careful about how we would edit 230 because clearly we do respect the First Amendment, but we’re looking at how we can get at the kind of activity where this kind of misrepresentation is going on,” McCaskill said.

Pleading the Fifth

Backpage CEO Carl Ferrer, former owners Michael Lacey and James Larkin, and general counsel Liz McDougall declined to answer questions during the hearing, invoking the Fifth Amendment privilege against self-incrimination.

Portman accused Backpage of fraudulently relying on Section 230 to escape liability from claims that it facilitated sex trafficking. “Your reliance on Section 230 has not been accurate,” Portman told Ferrer during the hearing. “It’s been a fraud on the courts, on the victims and on the public.”

Portman asked McDougall whether she believed the company is protected under Section 230. Portman asked Ferrer whether deleting certain words in the ads “magically changed” the age of girls who were the subject of advertisements on the site. McCaskill asked Lacey whether he would acknowledge that child sex trafficking is a serious problem on Backpage.

Although the Backpage witnesses didn’t answer those questions at the hearing, the company responded to the subcommittee’s Jan. 9 report by shutting down its adult ads hours after the report’s release. Backpage said in a Jan. 9 press release that it removed the adult section as a result of “unconstitutional government censorship.”

“That’s not censorship,” Portman countered at the hearing. “That’s validation of the findings of the report.”

Subcommittee Report

The subcommittee report found that Backpage knowingly concealed illegal sex trafficking ads by systematically deleting incriminating terms. Backpage automatically and manually deleted the terms from submitted ads before publishing them to the site, the report said, but deleting the terms didn’t change the true nature of the ads or the real ages of the people advertised, according to the report. By 2010, Backpage was editing 70 to 80 percent of adult ads, the report said.

The report “conclusively shows that Backpage has been more deeply complicit in online sex trafficking than anyone imagined,” Portman said.

According to the report, Backpage knew that it was facilitating sex trafficking but refused to act swiftly in response to complaints. An internal company e-mail suggests that Backpage may be limiting the number of reports it sends to the National Center for Missing and Exploited Children each month, the report said.

Ferrer, Lacey and Larkin are scheduled to appear Jan. 11 in the California Superior Court on criminal pimping and money laundering charges.

To contact the reporter on this story: Alexis Kramer in Washington at aKramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

Full text of the subcommittee report is available at http://src.bna.com/lji.

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