States take aim at sex-ad websites, but run into resistance

Aug 07, 2013 by Jerriann Sullivan

A two-word change proposed to one of the nation's first online laws has triggered a battle between law enforcement and Internet libertarians.

On one side, top law enforcers for nearly every state are calling on Congress to change a federal act so state laws can be used against websites with ads from prostitutes and pimps.

On the other side, an Internet , the American Civil Liberties Union and others are pushing back, saying the change would restrict free speech.

The fight centers on Backpage.com, a website that posts classified ads, and the Communications Decency Act of 1996.

Nearly 50 want to add just two words - "or state" - to the act, a change that would subject websites to state laws and, critics say, place websites under a crippling tangle of regulations.

Supporters, though, including the National Association of Attorneys General, said the change is needed because have failed to take a tough stand against websites used by sex traffickers and prostitutes.

"By updating federal law, we can give prosecutors the tools they need to crack down on those who use technology to exploit children," said Florida Attorney General Pam Bondi, who announced her support of the amendment last week.

Opponents of the change, including the Washington-based Center for Democracy & Technology and the ACLU, said "the proposed amendment would jeopardize the continued growth of the entire Internet industry and the free expression rights of Internet users everywhere."

Advertising for prostitution and child-sex trafficking has flourished online thanks to websites such as Backpage, most attorneys general said in a letter to Congress.

Backpage - a website that allows paying users to post sex ads - is not the only website that criminals are using to promote prostitution, but it is the largest and the one most often used by law enforcement agencies to find offenders.

A recent report from The AIM Group, an advertising consulting firm, put Backpage's profits from sex ads at $5 million a month. Backpage did not respond to several requests for comment.

A section of the national act gives criminal authority to the federal government, but "the attorneys general believe that criminal jurisdiction needs to be extended to help combat these crimes," Bondi said.

Federal courts have interpreted a section of the act in a way that protects websites from unlawful actions based on the content of third parties.

"The current law is absolutely correct if the Internet is going to function as a neutral, uncensored mode of communication," said Lawrence Walters, a Longwood lawyer specializing in First Amendment and Internet law.

Critics contend that, by adding "or state" to the law, website owners would be forced to make sure their content does not violate any .

The Center for Democracy & Technology argues in its letter that the change would expose websites "to potential prosecution under literally thousands of criminal statutes on a state-by-state basis."

The fear of prosecution will "endanger jobs and future growth and undermine the power of the Internet to promote free expression" opponents wrote.

It is unclear what laws would be considered when prosecuting website operators, though.

"We don't know what that world looks like because Congress intervened so early on in the age of the Internet that we do not know how state prosecutors would handle these cases," said Eric Goldman, a professor at Santa Clara University School of Law.

Local law enforcement officials aren't worried about websites that have controversial comments, posts or videos, though.

"We aren't after people expressing their opinions," said Polk County Sheriff Grady Judd. "We are focusing on people overtly making a profit off of criminal activity."

In May, Judd and his detectives arrested 92 people in a sex sting - most of whom advertised their services on the popular website.

The sting led to the arrest of Montavius Rakeem Postell of Orlando, who Judd said enslaved a 15-year-old girl with an accomplice and forced her into prostitution.

"To sit there and suggest that Backpage has no criminal liability in facilitating and encouraging prostitution is absurd," Judd said. "The fix is simple: Don't allow those advertisements."

In Orange County, "100 percent of the recent prostitution cases have involved the use of Backpage," Orange County Sheriff Jerry Demings said.

Demings supports the change proposed "primarily because of the technological advances" since the law was created in 1996.

"Maybe the original creators of the website didn't have this in mind, but officials across the country have brought it to their attention, and they haven't done anything about it," Demings said.

Police in Orlando also use online classified sites to identify possible perpetrators.

"The Orlando Police Department has increased its focus on cracking down on human trafficking and welcomes any additional tools and resources to help in this fight," said Orlando Mayor Buddy Dyer.

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