Jane Doe No. 1 was advertised on the website Backpage.com by people seeking to traffic and sell her to men for sex. She was raped more than one thousand times over the course of eighteen months so that others could profit. She was fifteen years old.
Her ordeal came to the attention of John Montgomery ’75, and in 2014, with a pro bono team from his law firm Ropes & Gray, he filed suit on her behalf against Backpage in the federal district court of Massachusetts. But Jane Doe No. 1, et al., v. Backpage.com, LLC, et al., never even reached the discovery phase. It was dismissed by the district court under an expansive interpretation of Section 230 of the Communications Decency Act (CDA). The dismissal was upheld by the First Circuit Court of Appeals. In 2017, the US Supreme Court denied the appeal, leaving the dismissal in place.
“We thought we were presenting the courts with a pathway out of a bit of a trap they had created for themselves,” Montgomery says about the lawsuit. But litigation is always a gamble, so he and his team were counting on something else, too: “We thought there was a reasonable chance that the case would attract attention that would shine a light on the problem,” he says. “Perhaps that light would come to the attention of the media and of Congress. I think both of those things have happened here.”
He’s right. His work is credited with sparking a Senate investigation and inspiring the human-trafficking documentary I am Jane Doe, which was released in 2017. Meanwhile, Montgomery is not letting up. On June 12, he filed another suit, Jane Doe No 1, Jane Doe No. 2, and Jane No. 3 v. Backpage.com, Carl Ferrer, Michael Lacey, and James Larkin, in the District of Massachusetts and is considering an action in the Southern District of New York.
As Montgomery implies, to bend the arc of the moral universe toward justice takes a methodical legal strategy, public support, and statutory reform. In the quest to shut down the online child-trafficking marketplace, Montgomery and another BC Law alum, Penny Venetis ’89, are using impact litigation to chip away at the legal bulwark of Section 230, he on behalf of victims, she on behalf of social service agencies attempting to repair the damage done to victims. Debra Brown Steinberg ’79, meanwhile, founded VS.: Confronting Modern Slavery in America, a group that builds coalitions to combat human trafficking.
(In a development revealed in the Washington Post on July 11, extensive new evidence has emerged indicating that Backpage, despite its denials, has been controlling sex-related ads for some time. This evidence could remove the protections it’s been enjoying under the Communications Decency Act. See the Post story here.)
Upwards of 100,000 children are thought to be sex-trafficked in the US each year. These children are Americans, not, as some assume, foreign-born. They come from all backgrounds and everywhere on the socio-economic ladder, from the suburbs, where it’s a growing phenomenon, to neighborhoods, rich and poor, where they’ve experienced homelessness, domestic violence, or parental drug and alcohol abuse.
Once caught in the trafficking network, the children are often forced into addiction by their exploiters to ensure their compliance. The average age of first exploitation is twelve or thirteen. Most of these trafficked children are marketed through the internet, and the vast majority of them are advertised on Backpage, the Craigslist-like, classified advertising website owned by James Larkin (Backpage co-founder), and Michael Lacey and Carl Ferrer (Backpage co-founder and original CEO, respectively). Larkin and Lacey are also former owners of The Village Voice.
Backpage got its start in 2010 when Craigslist, in response to public pressure, shut down its adult advertising section. Backpage rushed to fill the vacuum, eventually nearly monopolizing the online sex trafficking market. From 2010 to 2015, the National Center for Missing & Exploited Children (NCMEC) saw an 846 percent increase in reports of child sex trafficking, primarily related to the increased use of the internet for selling children. Seventy-three percent of the reports NCMEC received from the public involve Backpage.
Backpage has proven to be a lucrative endeavor.
The company took in 80 percent of all online commercial sex advertising revenue in 2013. Between 2010 and 2014, Backpage’s gross revenues more than quadrupled, from $29 million to $135 million—growth that is attributable to its “adult” advertising section. A sale of Backpage in 2014 valued the company at $600 million. According to a Senate investigation report, the sale was a sham, made through foreign shell companies, with Ferrer listed as the owner, and with Lacey and Larkin holding “near-total debt equity,” profiting “in the form of loan repayments,” and exerting “control over Backpage’s operations and financial affairs pursuant to loan agreements that financed the sale.”
Shielding Backpage from accountability for child sex trafficking is Section 230 of the CDA, the 1996 law that protects website publishers from liability for the postings of others. “The idea was like a carrot and a stick,” explains BC Law Associate Professor Daniel Lyons, who teaches cyberlaw. “Congress restricted online pornography and other indecent material, and as a condition of that, offered immunity to intermediaries for publishing, or removing, material posted by users. But then courts struck down the anti-pornography part. The stick was eliminated and all that was left was the carrot.”
The carrot in this case served other purposes as well. In the off-line world, newspapers are liable for defamatory content. But the thinking was that it would be costly and onerous, and would have a chilling effect on speech, if, for example, Facebook had to vet every post of every user in advance of publication. “If internet-based companies were liable for material that their users post, it would be too expensive to review every post before publishing, and so they simply would not offer interactive services,” Lyons explains. So the CDA carved out an exception for online media. “We wouldn’t have services like Facebook, Instagram, or YouTube [without the CDA], so, for the most part, the Communications Decency Act is an important piece of law that helped create the internet as we know it.”
The downside is that companies like Backpage take advantage of Section 230, and they are assisted by nearly two decades of judicial interpretation. Montgomery thought that the theory on which he was basing his case might lead the court to a different conclusion, one favorable to the victims rather than to Backpage. His theory relied on federal and state anti-trafficking laws that, as he expressed in the complaint, “allow victims to pursue a private action against individuals and entities, like Backpage…that participate in and benefit from unlawful commercial sex ventures.”
In essence, Montgomery was telling the court, you don’t have to get stuck on the fact that these advertisements were posted by third-parties on Backpage’s website. What matters is that Backpage participates in and benefits from these ads—in violation of anti-trafficking laws. The First Circuit apparently didn’t see it that way. “The court concluded, at least on the basis of what is alleged in our complaint, that the provision of the [Section 230 of the Communications Decency Act] that protects a publishing activity was so broad that it superseded trafficking statutes,” Montgomery says. In essence, the court decided that the immunity of Section 230 extends even to a website publisher’s intentional criminal misconduct.
“The harm goes beyond trafficking victims. There are many, many people impacted by this. Taxpayers are impacted by this, and society is impacted by sex trafficking.” —Penny Venetis of Legal Momentum: The Women’s Legal Defense and Education Fund
The First Circuit is not alone in finding that Section 230 shields Backpage. Federal district courts in Missouri, Washington, Tennessee, and New Jersey have concluded the same. (An exception is the Supreme Court of the state of Washington in a case brought by three minor girls. That court decided that their lawsuit brought forward sufficient facts to call into question Backpage’s entitlement to Section 230 immunity.)
“In construing the statute in other contexts over a fifteen- to eighteen-year period, the courts created a set of principles for interpreting the statute that effectively broadened the statute beyond what Congress would have intended,” says Montgomery. “Both the district court and the court of appeals explicitly said, in effect, this is a bit of a mess, but it is a mess for Congress to fix.”
As Montgomery’s case wended its way through the courts, Congress did, indeed, start showing interest. In fact, Montgomery’s work is credited with raising public awareness of online child sex trafficking, and with sparking a thoroughgoing Senate investigation into Backpage. In January 2017, hours after the Supreme Court denied cert in Jane Doe No. 1, a subcommittee of the Senate Committee on Homeland Security and Governmental Affairs issued a damning report, twenty months in the making, that documents how Backpage knowingly and actively facilitates online sex trafficking. The Senate subcommittee wrangled information from Backpage that Montgomery was unable to obtain through his lawsuit (because it was dismissed)—but only after holding Backpage in contempt of Congress and being forced by Backpage’s obstruction to litigate its subpoena all the way to the Supreme Court.
The upshot? The Senate subcommittee found that Backpage, far from being an unwitting publisher of sex trafficking ads posted by others, deliberately edits ads and coaches its customers on how to write their ads so that any evidence of criminality is concealed. (While Backpage claimed to have shut down its “adult ad” section, in truth, these ads, including ads to traffic children, simply migrated to the Backpage “dating” section.)
Armed, courtesy of the Senate subcommittee report, with factual insights into the operations of Backpage, Penny Venetis has brought another novel theory to the fight. With a team of lawyers, she is suing not only on behalf of exploited children, but also on behalf of social service agencies. Venetis is executive vice president and legal director of Legal Momentum: The Women’s Legal Defense and Education Fund, which was founded in 1970 by NOW (the National Organization for Women) as a legal advocacy organization for women. Venetis says, “People who are trafficked have been raped countless times a day. Social service providers have to deal with very broken people.”
Taking care of those people drains the agencies of precious resources, Venetis’s lawsuit claims. “We are the first to plan a lawsuit on behalf of social service providers—and the harm goes beyond trafficking victims,” Venetis says. “There are many, many people impacted by this. Taxpayers are impacted by this, and society is impacted by sex trafficking.” The lawsuits on behalf of social service agencies were filed in February 2017 in the federal district courts of Arizona and Florida. In a real coup, Venetis and her team persuaded the celebrated litigator David Boies to serve as lead trial counsel. Boies is known for representing Vice President Al Gore in Bush v. Gore and for participating in the legal fight for marriage equality. Boies, Venetis says, “really cares about social justice. He can work on anything he wants to, and he chose to work on this issue.”
Sex trafficking through the internet is particularly insidious. Some experts caution that even if Backpage is eventually hounded out of the business, there will be something else online to take its place—unless sex trafficking on the internet can be made prohibitively costly. Debra Brown Steinberg has been working on the issue of human sex trafficking since 2013 when she founded and managed the organization VS.: Confronting Modern Slavery in America, a pro bono project of her firm Cadwalader, Wickersham & Taft, where she was a partner.
VS. was created in consultation with Cadwalader’s women’s leadership initiative. “We decided that we wanted to look at human trafficking in America,” Steinberg says. Their research revealed many disparate organizations doing good work but with few resources and little collaboration. “They were doing some really exciting work on shoestring budgets,” Steinberg says, “so, we decided to do a pro bono website, the purpose of which was to focus on domestic trafficking and to identify and promote model programs and legislative reform that targeted the specific needs in the domestic anti-trafficking community.”
Among VS.’s achievements were engaging the law firm’s Wall Street-client base with the issue, and passing legislation in New York State that helped to shift the emphasis from criminalizing victims to rescuing them and providing them with services. Steinberg left VS. when she retired from Cadwalader, but she still counsels non-profits and advocates working to end human trafficking.
“The use of the internet by traffickers is a business model and plan,” she says. “It is very cheap.” The internet makes the entire project of selling and delivering young girls to johns less expensive, less risky, and much more hidden than the old “brick and mortar” method of walking the streets. “If all you have to do is put up a girl’s picture and some contact information on a website, you can use that girl ten or fifteen times a day. And when she is older, meaning seventeen, eighteen, you just throw her out and get a new one,” Steinberg says.
She believes that it is not enough simply to pursue Backpage. She advocates for focusing on the patterns of migration, demand, and profitability that the internet business model facilitates. “If you can change the law so that prosecutor and survivor can use the law to break down that business model, to make it unprofitable and high-risk to the traffickers, then you might see some changes,” she says.
But changing the law starts by changing minds. Even some very informed citizens know very little about this crime. Filmmaker Mary Mazzio was once one of them.
Mazzio is the founder and CEO of the independent film production company 50 Eggs, Inc. She says she first became aware of child sex trafficking in the US after reading a Boston Globe article about John Montgomery’s lawsuit. In fact, Montgomery’s work inspired her new film, I am Jane Doe, about the uphill battles of several middle-school girls who are survivors of sex trafficking and who have been trying to hold Backpage accountable in court. Montgomery and Venetis figure prominently in the film.
“The very nature of this crime is person-breaking,” Mazzio says. “Many of these young children internalize the blame for making a thirteen- or fourteen-year-old decision—to sneak out of the house. To run away. To get into a car. To go to a party. To step into a back room. Let’s call it what it is, right? Making a decision to go to a party, to sneak out of the house, does not mean that you are signing up for the crime of sex trafficking. And what is the crime of sex trafficking? It is child rape.”
Mazzio believes that judges are not absorbing this reality, especially in our culture where our imaginations are in thrall to films like Pretty Woman. A former lawyer, Mazzio has some choice observations about how the courts have been interpreting Section 230 of the CDA. “What is amazing is that these federal judges are not drilling down into what Section 230 really is. It is a subsidy,” she says. It might have made sense twenty years ago, but today, she explains, “We now have a situation where new media, which is now a fully robust and mature industry, is protected by Section 230, when old media—radio, newspapers, publishing, television—have to show up in court against third-party content for defamation or otherwise.”
By not having to incur the costs of litigation, she says, online media have enjoyed two decades of enormous cost savings. In lawsuits, powerful tech lobbies, like the Electronic Frontier Foundation and the Center for Democracy and Technology, have filed amicus briefs on behalf of Backpage. They have been successful in persuading the courts that “the sale of children online is collateral damage for free speech,” Mazzio says.
Things might be starting to change. Representative Ann Wagner, a Republican from Missouri, filed a bipartisan bill this past April to amend CDA Section 230. If enacted, the amendment would make it easier to hold websites accountable for sex trafficking ads posted by others.
It’s an important start, and it will be buttressed by the work of Montgomery, Venetis, Steinberg, and other advocates of conscience. But meanwhile, tens of thousands of children continue to be trafficked for profit for the benefit of the unscrupulous Backpage.
Jeri Zeder is a Boston-area freelance writer and a regular contributor to BC Law Magazine.
All photographs, courtesy film I AM JANE DOE. For more information, visit www.iamjanedoefilm.com.