July 29, 2013 at 8:52 PM ET
Search for "Backpage.com" on the FBI's main website and up pops eight whole pages of press releases and public announcements naming the classified advertising site as a tool for sex criminals, particularly those selling children, sex and prostitution. And in fact, Backpage was named as one of the sources law enforcement used to help gather evidence needed to coordinate a 70-city raid last weekend that resulted in the rescue of 105 teenagers and the arrest of 159 pimps.
"The fact that they were able to rescue that many children and arrest that many pimps is fantastic," Liz McDougall, counsel for Backpage told NBC News Monday. "We are glad to be a partner with and support law enforcement to make these arrests, and make them in time to rescue these children."
A partner with law enforcement? While Backpage may be the current Craigslist for prostitution ads in the United States, McDougall says the site gladly cooperates with police when they want information about those who place the ads, including the IP, or Internet protocol, address from where the ads originated.
But a new effort by the National Association of Attorneys General wants to change federal law so that Internet service providers and websites like Backpage could be prosecuted by state and local governments for promoting prostitution and child sex trafficking, simply by running such ads.
It's a double-edged sword, some might say: Shutting down online ad venues for criminals and sexual traffickers seems like a good "nowhere to run" idea, but law enforcement looks to such sites to find information about the criminals they're chasing. And some argue that if you shut down one such "offending" site, another pops up anyway. Besides, there's a bigger issue at the heart of this: The same laws that protect the unsavory ads online also protect most Internet providers from liabilities of all kinds.
Backpage is specifically named in a letter from the attorneys' general group, sent last week to members of Congress, seeking an amendment to the Communications Decency Act of 1996:
Every day, children in the United States are sold for sex. In instance after instance, State and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com. The involvement of these advertising companies is not incidental — these companies have constructed their business models around income gained from participants in the sex trade.
Federal enforcement by itself has "proven insufficient to stem the growth of Internet-facilitated child trafficking," says the group, with the letter signed by 49 state and territorial attorneys general. "Those on the front lines of the battle against the sexual exploitation of children — state and local law enforcement — must be granted the authority to investigate and prosecute those who facilitate these horrible crimes."
It's an effort applauded by the National Center for Missing & Exploited Children, which works with law enforcement on sex trafficking cases.
"Classified-ad websites have made child sex trafficking an easy and profitable business enterprise for pimps," said John Ryan, the center's CEO, in a recent statement. "NCMEC urges all policymakers to explore every avenue available to bring to justice those who profit from the sexual exploitation of children."
Perhaps you're wondering why so many name Backpage and not Craigslist. In 2010, Craigslist, under pressure from more than a dozen individual states' attorney generals, voluntarily banned ads for adult services from the site. When that happened, much of the business moved to Backpage.com. (Village Voice Media, which owns the Village Voice, among other publications, also owned Backpage.com until last fall, when it became a separate company.)
Whether or not Backpage follows suit and ditches adult services, experts argue that the law itself should not be changed in order to make this happen.
Mark Rasch, former head of the Department of Justice's Computer Crimes Unit, and now an independent consultant, told NBC News he is against the proposed change, which would restrict free speech, now a key protection under Section 230 of the Communications Decency Act. He also says it's the "wrong way" to go after those in the child sex trade.
"Sex traffickers use the Internet to sell their wares, use the telephone lines to communicate with customers, use the banking and credit card system to obtain payment for sex services, use highways and local roads to transport minors for sex, use cars and other vehicles for the same purpose," he wrote in a recent blog post. "They use the same infrastructure established to sell toothpaste to sell illicit sex with minors. They need to be arrested and prosecuted for these crimes."
But third parties that might be accused of making those crimes possible — whether it's ISPs or gas stations — shouldn't be held criminally liable "for their own participation," he argues. An amendment to the law like this one means that "EBay could be held liable if someone purchased a knife online and then used that knife to kill someone, if a state passed a law making the advertisement of knives that are used for such purposes a crime."
Matthew Zimmerman, senior staff attorney for the Electronic Frontier Foundation, a digital civil liberties organization, told NBC News that with the "proliferation of user-generated speech online over the past decade," the proposed amendment would be "extraordinarily harmful."
The EFF successfully defended the non-profit Internet Archive in a suit against the state of Washington, which in 2012 passed a law that essentially made it a crime to "knowingly" publish or display any ad for a commercial sex act, including the depiction of a minor. The EFF said that the new state law meant that Internet Archive and Backpage.com, represented by its own counsel, were considered publishers, contrary to the provisions of the Communications Decency Act. A federal court agreed, and blocked the law.
Zimmerman says it's not only "lawful speech" that would be hurt by letting states prosecute service providers and websites. "This could also lead to the loss of critical tools that law enforcement could use to investigate these and other crimes," he told NBC News.
McDougall of Backpage agrees. The arrests over the weekend are "something that wouldn't be possible if you didn't have a domestic, cooperative website involved," she said. "That's why it's important to not drive this content to offshore websites, which won't cooperate and don't have to cooperate with U.S. law enforcement. It would make law enforcement's job exponentially more difficult."
Still, there are many who'd argue that giving child traffickers one less avenue would be a win for the good guys. It's not known yet what, if any, action Congress will take on changing the Communications Decency Act. The issue is sure to be debated in the months to come.
Update: An earlier version of this story incorrectly said EFF represented both Internet Archive and Backpage.com in the state of Washington lawsuit..