Section 230 of the Communications Decency Act (CDA) generally grants broad immunity to Internet Service Providers (ISPs) with respect to third-party content posted on the ISP sites. The legislative history behind CDA Section 230 makes plain that Congress intended for the Internet to flourish for businesses and the US economy, and that intent would be thwarted if ISPs had the onerous duty to police and somehow regulate information and communications posted on their sites by others the ISPs do not control.
Nevertheless, there have been efforts in legal cases to chip away at the broad immunity afforded to ISPs by CDA Section 230. One such effort is the recent legal case Jane Doe No. 1 v. Backpage.com, LLC.
This case was filed in federal court in Boston in 2014 by several young women who accused Backpage.com of having facilitated their forced prostitution. How? The allegation was that this happened via classified advertisements posted within the “escorts” section of the Backpage.com site. The plaintiffs alleged that they were “repeatedly forced as minors to engage in illegal commercial sex transactions” in Massachusetts and Rhode Island when they were as young as the age of 15 by pimps who advertised on Backpage.com, according to a Reuters article.
The case made its was up to the the United States Court of Appeals for the First Circuit. The First Circuit sided with Backpage.com, agreeing that the ISP was immune from liability under CDA Section 230 as to the classified advertisements posted by others on its site.
Undeterred, the young women plaintiffs, then sought review by the United States Supreme Court. They took the position, according to Reuters, that in this context CDA Section 230 improperly is relied upon to prevent enforcement of federal and state statues designed to thwart human trafficking, and that Section 230 even could be used to get in the way of attempts to stop racketeering and terrorism. The plaintiffs also argued that that Backpage.com is profiting from all of this, and thus should be responsible for this type of content on its site.
Nevertheless, the United States Supreme Court very recently declined to review the case, leaving intact the decision by the First Circuit in favor of Backpage.com under CDA Section 230. Had the Supreme Court accepted the case and then later ruled in favor of the young women and against Backpage.com, the ruling could have had potentially broad implications for ISPs. But, that did not happen, and this particular attack against Section 230 immunity for ISPs did not succeed.
Still, it is worth noting that Backpage.com has been in the cross-hairs of the United States Senate and has faced various civil lawsuits relating to alleged facilitation of sex trafficking, and in particular with respect to children, according to the recent Reuters article.
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.