SEATTLE (CN) - Washington State is dropping its defense of a law against online sex trafficking after Internet providers and civil liberties groups challenged it as unconstitutional.
In response to a sting operation that found child prostitutes being advertised on Backpage.com, the Washington state Senate enacted Senate Bill 6251, which was to take effect in June.
Backpage.com, a Village Voice website, hosts ads for adult escort services.
The state law would make it a felony to advertise commercial sexual abuse of a minor either "directly or indirectly."
Backpage sued to block the law. The Internet Archive joined
the challenge and filed a separate complaint.
"Although its ostensible motivation - to prevent the sex trafficking of children - is laudable, the law is not," Backpage claimed in its federal lawsuit
"Because of its expansive language, the law applies not only to online classified ad services like Backpage.com, but also to any website that allows third parties to post content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, internet service providers, and more," the complaint stated."
The only defense against prosecution was for a defendant (i.e., a website) to obtain official identification proving that a person depicted in an ad is 18 or older.
"This means that every service provider - no matter where headquartered or operated - must review each and every
piece of third-party content posted on or through its service to determine whether it is an 'implicit' ad for a commercial sex act in Washington, and whether it includes a depiction of a person, and, if so, must obtain and maintain a record of the person's ID," the complaint states. "These obligations would bring the practice of hosting third-party content to a grinding halt."
U.S. District Judge Ricardo Martinez agreed with Backpage and the Internet Archive, and granted them a 2-week restraining order.
After hearing arguments in July, Martinez found the websites were likely to succeed on their claim that the law violates the First Amendment, by imposing strict liability on them, and that the law is vague and overbroad.
"The pimp that publishes the advertisement certainly 'knows' whether his offer is for sex, whether explicitly or implicitly," Martinez wrote. "However, what does it mean for the website operator to 'know' that an advertisement 'implicitly' offers sex? In Washington, 'a person acts knowingly or with knowledge when ... he or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense.' However, where an online service provider publishes advertisements that employ coded language, a reasonable person could believe that facts exist that do not in fact exist: an advertisement for escort services may be just that."
Martinez said the most problematic aspect of the law is that it would likely chill protected speech.
The plaintiffs presented evidence that escort ads have begun to appear on social networking sites such as Facebook, since Craigslist removed its "adult" category.
"Whether or not Facebook already 'knows' that it is publishing such ads, if SB 6251 is enforced, Facebook will have a strong incentive to either ex-ante monitor content that is posted to its website or require blanket age verification before photos are uploaded to its site," Martinez wrote. "This kind of restriction could cause dangerous chilling effects across the Internet."
Washington officials said on Thursday they will drop the defense of the law.
The parties filed stipulations in court, and Martinez's permanent injunction will take effect when he signs the order.
"Threatening to throw service providers in jail for what their users say or do is misguided, incredibly harmful to online free expression generally, and violates federal law," said Electronic Frontier Foundation attorney Matt Zimmerman, who represented the Internet Archive.
"We are grateful that the state of Washington has agreed that this statute cannot and will not be enforced against the Internet Archive or anyone else."
Attorney General Rob McKenna said he disagrees with the ruling. He told the Seattle Weekly that the federal Communications Decency Act creates a loophole that allows for child prostitutes to be solicited online.
"We do not believe that advertisements for a service illegal in every state - prostitution - are protected by the Constitution," McKenna said. "That part of his decision would likely be overturned upon appeal. But unless Congress acts to revise the section 230 of the Communications Decency Act, an appeal will be extremely challenging and costly. It is unfortunate that because of this ruling, Backpage will continue to profit from sex ads for kids and others."