In Need of Reconsideration-The Ruling of The Supreme Court of Washington in J.S. v. Village Voice Media Holdings, LLC

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In Need of Reconsideration: the Ruling of the Supreme Court of Washington in

J.S. v. Village Voice Media Holdings, LLC
This essay bridges commercial sex work as a form of human trafficking to the
Communications Decency Act. In doing so, this essay reviews sex-related human trafficking as
an epidemic blight on the American public in the 21st century, and it reviews the key pieces of
the Communications Decency Act that litigation pertaining to human trafficking seeks to
scrutinize. In essence, Congress developed the Communications Decency Act because
advancements in computer sciences spurred the need to provide web site operators protection
from the tortious or criminal acts of the website users. Efforts to combat human trafficking and
to seek justice for victims confronts the protection afforded by the Communications Decency Act
when human trafficking victims sue the website operators of the sites that criminals use to funnel
the business of the victims trafficking. Such is the focal point of J.S. v. Village Voice Media
Holdings, LLC: several victims of human trafficking won in their suit against Village Voice
Media Holdings, LCC, the enterprise that owns Backpage.com.
Numerous issues relevant to this struggle in human trafficking, online crime, and mediarelated freedoms are beyond the scope of this writing. This essays aims only to examine the
societal predicament of human trafficking pitted against the Communications Decency Act
through the legal lens of the decision in this paramount case.
BACKGROUND
Human Trafficking. The illegal migration of persons under circumstances of extreme poverty,
violence, and other undesirable conditions is a pervasive problem that continues to plague human
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civilization in the 21st century. 1 Figures suggest that globally, approximately 27 million people
are subject to forms of modern-day slavery, and that 1.39 million of them are specifically trapped
within the bounds of sex work. 2 Human trafficking encompasses many different types of persons
and situations, which makes it a difficult idea to define in succinct terms. There are two
definitions that portray the full scope of possible issues and factors included in the term; one is
described in Article 3 of the United Nations Protocol to Prevent, Suppress, and Punish
Trafficking in Persons, Especially Women and Children, 3 and the other in the Trafficking
Victims Protection Act (hereinafter TVPA). 4 The former provides a meaning widely recognized
in the world over, and it includes within its definition the use of illegal action (fraud, coercion,
abuse of power, etc.) to facilitate the movement of persons for purposes of exploitation. 5 This
definition references sexual servitude, forced labor, and the harboring of persons for the purposes
of organ removal as typical examples of human trafficking. 6
The latter is the definition provided by the United States government, and it frames the
concept more narrowly in that it only recognizes forced labor (which includes coercive sex work)
1. The Facts at the Polis Project site at https://polarisproject.org/facts provides information about global
human trafficking statistics, who trafficking affects by percentage, and where trafficking happens the most in the
United States.
2. See pages 1-2 of Introduction: Rethinking Trafficking in From Human Trafficking to Human Rights,
by Alison Brysk and Austin Choi-Fitzpatrick.
3. See page 2 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children, which is available at http://www.osce.org/odihr/19223?download=true.
4. See page 2 of the Introduction of Alicia Peters Responding to Human Trafficking: Sex, Gender, and
Culture in the Law, which begins to describe the Trafficking Victims Protection Act, or reference the definition from
the U.S. State Department, available at http://www.state.gov/j/tip/rls/tiprpt/2013/210543.htm
and Children, which is available at http://www.osce.org/odihr/19223?download=true
6. Ibid.
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as a form of trafficking. 7 The United States considers trafficking an affront to its national and
cultural principles. 8 If nothing else, involuntary servitude stands as a blatant and direct affront to
the right of all persons to be free, and freedom is a value of particular importance to the United
States; indeed, trafficking through illegal prostitution is a violation of the 13th amendment right
against slavery. 9
There are many factors that can complicate the way that legislators, law enforcement, and
the public visualize the manifestation of human trafficking. For example, prostitution (the
exchange of sexual services for money) 10 is illegal nearly everywhere in the United States. The
only exception is Nevada (prostitution is practiced in 9 of its 17 counties; regulation of the
industry there is heavy and brothels pay a large fee to operate). 11 While the practice is therefore
generally unlawful, prostitution only counts as a form of human trafficking when the sexual
services involved are forced, 12 but the issue of consent can apply differently to different people,
depending on the definition and the potentially trafficked person in question. For example, the
United Nations definition finds that the willingness of a person to participate in his or her own
7. Reference the Definitions and Methodology from the U.S. State Department, available at
http://www.state.gov/j/tip/rls/tiprpt/2013/210543.htm
8. See page 2 of Introduction: Rethinking Trafficking in From Human Trafficking to Human Rights, by
Alison Brysk and Austin Choi-Fitzpatrick.
9. See Sex Crimes, which briefly covers prostitution laws in the United States, at http://sexcrimes.laws.com/prostitution/laws-prostitution.
10. See Article 30, Section 30, definition 3 of the Model State Provisions on Pimping, Pandering, and
Prostitution, available at http://www.justice.gov/olp/model-state-provisions-pimping-pandering-and-prostitution.
11. See Sex Crimes, which briefly covers prostitution laws in the United States, at http://sexcrimes.laws.com/prostitution/laws-prostitution
12. See the Definitions and Methodology from the U.S. State Department, available at
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exploitation is an irrelevant factor in determining whether or not trafficking has occurred, 13 and
the United States rules that the prior consent of a person to certain situations does not necessarily
disqualify that particular person from having been a victim of human trafficking under the
VTPA. 14
In furtherance to the complication of succinctly defining trafficking is the issue of
children. Globally, 26% of all trafficked people are under the age of 18. 15 Unlike adults, children
in the United States who are found to be involved in commercial sex acts are not required to
prove that force or fraud were present in order for the situation to count as one of human
trafficking. 16 Their status as minors establishes an unchallenged assumption that any instance of
sexual exploitation pertaining to them is the direct result of traffickers abusing their inability to
effectively self-protect and self-advocate.
Moreover, trafficking by its namesake is founded on the idea of mobility. However, while
trafficking certainly occurs over international, national, and state boundaries and the movement
of trafficking sometimes occurs intrastate, the United States does not even require movement as
a condition of being trafficked. 17 People may be trafficked in and out of the United States, and
and Children, which is available at http://www.osce.org/odihr/19223?download=true.
http://www.state.gov/j/tip/rls/tiprpt/2013/210543.htm.
15. The Facts at the Polis Project site at https://polarisproject.org/facts provides information about global
human trafficking statistics, who trafficking affects by percentage, and where trafficking happens the most in the
United States.
16. Ibid.
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they certainly come from within: 83% of all trafficked persons in the United States between 2008
and 2010 were United States Citizens. 18
In summary, there are many contributing factors to what counts as human trafficking
even when considering the matter solely from the United States perspective. Human trafficking
encompasses a number of different activities but includes in all of its forms the forced labor or
sexual exploitation of a person for the purposes of profit. Prostitution only qualifies as a form of
human trafficking when the people involved have been forced or deceived into positions of
sexual servitude, and children do not have the legal burden of proving that they were forced into
sex work.
How Human Trafficking Operates through the Internet. Scholars note a spike in the awareness of
human trafficking as a domestic problem in the United States in the 1990s, 19 about ten years
after computers were first becoming a tool for communication. 20 Once computers allowed a
person to achieve everything from sending an instant message to making an online purchase, the
way that legal and illegal businesses operated began to change. Computers and the Internet
revolutionized communication, connecting millions of people instantly in ways that had never
previously been possible. By 2000, some 2,405,000,000 people were online, which made the
Internet a new, virtual playground for criminals to take their law breaking behaviors and funnel
illegal business. 21 The World Wide Web suddenly offered criminals an anonymous space within
18. See the Introduction of A Letter to Congress: The Communications Decency Act Promotes Human
Trafficking by Abigail Kuzma. In this statistic Kuzma cites Justice Department Research.
19. See Human Rights Quarterly, Volume 37 Number 4. The UN Special Rapporteur on Trafficking: A
Turbulent Decade in Review by Anne Gallagher and Joy Ezeilo, page 914.
20. See Human Trafficking and the Internet by Szde Yu from Combating Human Trafficking A
Multidisciplinary Approach, page 61.
21. Ibid.
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which to operate and a resource from within which multitudes of vulnerable persons could be
exploited.22
Szde Yu, contributor to Combating Human Trafficking A Multidisciplinary Approach,
describes these details and how human trafficking as a crime works online in her piece, Human
Trafficking and the Internet. 23 Essentially, Yu explains that traffickers use the Internet in two
ways: one, to find and track victims, and two, to operate the business of abusing those persons. 24
Once traffickers locate vulnerable people, she explains, they employ fraud in the form of false
advertisements and the creation of fake identities to deceive potential victims and draw them into
positions of compromised physical safety. 25 Then, traffickers use the robustly creative nature of
the Internet to hide the fact that trafficked persons are missing or are being forcibly detained by
presenting fake internet activity and photos that suggest the missing person is alive and well. 26
Again, Yu describes the way that criminals use the Internet to facilitate business.
Traffickers use advertising agencies, message boards, and a host of other services to advertise
and coordinate the services of victims. 27 To evade law enforcement, they operate using coded
22. Ibid. page 62.

23. Ibid. pages 61-72.
25. Ibid. page 64.
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language that is hidden in otherwise innocent and innocuous material posted in other
advertisements and messages on sites such as Yelp. 28
It is very difficult for law enforcement to track individual advertisements that potentially
involve the forced sexual exploitation of persons or children. 29 At present, evidence shows that
law enforcement lacks the adequate finances, time, and human resources needed to decode ads
and investigate potentially illegal activity that is advertised online. 30 The cryptic language that
offenders use affords them the ability to deny crimes, 31 and not all advertisements are reflective
of illegal activity. 32 Even when corrupt activity is discovered, it can be challenging for law
enforcement to accurately track the perpetrators of the trafficking. 33
Connecting Human Trafficking to Section 230 of the Communications Decency Act. Again, law
suits are surfacing. The victims of human trafficking who have been subjected to involuntary
sexual servitude are not only suing the pimps who have abused them, they are also suing the
online web operators whose sites those pimps used to post the advertisements describing the
sexual availability of the victims. The specific claims that have been brought against the
advertisement agencies vary by case, but victims often allege that these agencies are in violation
28. Ibid. page 69.

29. See the University of Southern Californias "Human Trafficking Online: Cases and Patterns" available
at http://technologyandtrafficking.usc.edu/report/human-trafficking-online-cases-patterns/.
30. Ibid.
32. See "Sex Trafficking On Backpage.com: Much Ado about (Statistically) Nothing," by Julie Ruvolo,
available at http://techcrunch.com/2012/10/06/sex-trafficking-on-backpage-com-much-ado-about-statisticallynothing/
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of varying state laws where the sexual exploitation has occurred. 34 The victims, who are often
children, have alleged that these agencies are aiding and abetting human trafficking and are
violating laws against prostitution.35 They also allege that these agencies are negligently
operating their websites, and thus are enabling the sexual assault, battery, and the pornography of
children on their sites. Although this list covers many of the allegedly illegal acts, it is by no
means exhaustive.
One of the most infamous agencies under this legal scrutiny is Backpage.com (hereinafter
Backpage), which again is owned by Village Voice Media Holdings, LLC. According to the
New York Times, an organization called the AIM Group estimates that Backpage accounts for
nearly 70% of all the prostitution advertising in the United States. 36 It would seem that Backpage
merely sponsors the space where ads made by third parties appear, and therefore Backpage
would be immune from suit under the specific language of the Communications Decency Act.
This, however, has been a matter of considerable debate.
WHEN IS AN INTERNET SERVICE PROVIDER ALSO A CONTENT PROVIDER?
Section 230 of the Communications Decency Act and Its Purpose. Congress passed Section 230
of the Communications Decency Act (CDA) 37 in 1996 in response to a handful of court cases
that popped up in the 1990s. 38 What with the billions of people suddenly accessing computers
34. J.S. v. Village Voice Media Holdings, L.L.C. 184 Wash.2d 95. Here, the plaintiff alleged that the
defendant was in violation of a number of Washington laws pertaining to prostitution and trafficking, and so on.
35. Ibid.
36. See Not Quite a Teen, Yet Sold for Sex, by Nicholas Kristof, available at
http://www.nytimes.com/2012/04/19/opinion/kristof-not-quite-a-teen-yet-sold-for-sex.html?_r=0
37. The Communications Decency Act, 47 U.S.C.A. 230.
38. J.S. v. Village Voice Media Holdings, L.L.C. 184 Wash.2d at 109., which makes a reference to Stratton
Oakmont, Inc. v. Prodigy Services Co. 1995 WL 323710.
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and the Internet during this time, questions began to surface over how heavily such a thing
should be regulated. Yu points out that safety was not initially a priority in the development of
the Internet, 39 but once it had been around for at least a handful of years, enough types of activity
and possibilities for suit had arisen that Congress ultimately intervened. In doing so, it sought to
address the Internets impact on American society and values, and it sought to address the
policies with which it would view the Internet. 40
In the cases that were surfacing that inspired this legislation, plaintiffs were suing internet
service providers for damage that occurred as a result of content provided by distinct third
parties. 41 Print media functions such that media providers (like newspapers, for instance) can be
held liable for the illegal acts of third parties who provide content, 42 so it would seem logical to
apply the same standards to internet service providers that operate as publishers. However,
Congress sought to implement a near opposite paradigm-Congress wanted to put legislation in
place that would protect internet service providers whose activities distinguished it from the acts
of internet content providers, and thereby protect service providers from the illegal acts of others.
The reason for having such a markedly different approach is because the publishers of
print media operate under a long-standing tradition of being very selective about which pieces to
40. The Communications Decency Act, 47 U.S.C.A. 230.
41. J.S. v. Village Voice Media Holdings, L.L.C. 184 Wash.2d at 109., which makes a reference to Stratton
Oakmont, Inc. v. Prodigy Services Co. 1995 WL 323710.
42. Zeran v. America Online, Inc. 129 F.3d at 333 was overturned by a later 7th Circuit ruling. Nonetheless,
at page 333 the court recognizes the differences in what is manageable between a print publisher and a computer
service.
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include in a particular publication; those publications are finite in their boundaries (meaning that
there is a clear beginning and a clear end to each printed item). 43 The aims of internet service
providers are much more difficult to define, and what internet service providers produce or are
capable of making available in services is less manageable to contain within the boundaries of a
finite definition.
Congress recognized this key difference between types of media, and therefore
determined a standard that acknowledges that the Internet is a much more open space for ideas
where the relationship between the between the service provider (who provides the online
platform where material is posted) and the actual creator of the material that appears there is
much less predictable, definable, or controllable. In establishing these new standards for
immunity, Congress wanted to promote competition 44 and a space for open conversation 45 where
government regulation is at a minimum and technology is free to advance. Section 230 of the
CDA functions to protect service providers from critics whose interrupts would otherwise chill
free speech, and it eliminates any discouragement from internet entities to self-regulate. 46
The immunity that the CDA can afford has been broadly applied when legal issues have
been called into question or even conflict with its ruling. 47 This pertains to the claims that
victims of human trafficking have made against agencies like Backpage. Still, it also relates to
several attempts of legislators to pass state-level laws that, if enforced, would change the scope
43. Ibid.
44. The Communications Decency Act, 47 U.S.C.A. 230(b)(2)
45. The Communications Decency Act, 47 U.S.C.A. 230(a)(3)
46. The Communications Decency Act, 47 U.S.C.A. 230(b)(4)
47. J.S. v. Village Voice Media Holdings, L.L.C. 184 Wash.2d at 122.
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of the CDA. 48 The CDA is a federal ruling, so often courts must decide whether or not plaintiffs
can make claims that are based on state law. Because of the doctrine of preemption, wherever a
state law stands in direct conflict with a federal ruling, the federal ruling must be enforced. 49 A
determining factor in those instances is typically whether or not the impact of the federal ruling
can apply; in this case, it is a question of whether or not the immunity sometimes afforded by the
CDA applies-which is based on whether or not service providers qualify for the immunity. 50
Section 230 of the CDA therefore operates largely as a definitional document; 51 it awards
protection from liability by determining whether or not an internet entity qualifies as a member
of a protected group, and the groups are determined by what those entities do. An internet entity
can solely function as a provider of service, it can operate as both the provider of services and as
a content creator or developer (depending on what its specific role is in the final product of the
content that appears on its site) or it can function solely as a content creator. 52 The CDA protects
internet service providers from liability incurred by the acts of third party content contributors,
but only in the instances in which they are functioning solely as service providers. 53
48. See "Fighting a Losing Battle to Win the War: Can States Combat Domestic Minor Sex Trafficking
Despite CDA Preemption?" by Stephanie Silvano at pages 393-394. It is available from the Fordham Law Review.
50. Ibid.
51. The Communications Decency Act, 47 U.S.C.A. 230(f).
53. The Communications Decency Act, 47 U.S.C.A. 230(c).
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A NEW HOLDING: J.S. V. VILLAGE VOICE MEDIA HOLDINGS, LLC
One of the most recent and controversial rulings in cases involving the victims of human
trafficking and Backpage is J.S. V. Village Voice Media Holdings, LLC. This case was decided
by the Supreme Court of Washington in 2015. A group of underage girls (collectively known as
J.S.) brought suit against Backpage after they claimed to have been the subjects of child
pornography used in ads on Backpages site and after they claimed to have suffered multiple
rapes as a direct result of those ads. 54 Again, although courts across various jurisdictions in the
country had previously ruled over different issues involving the CDA and the protection it can
lend, the trend by and large is that courts have applied the immunity broadly. 55 J.S. v. Village
Voice Media Holdings, LLC is the first case to limit the potentially protective powers of the CDA
as much as it has. The majority opinion in J.S. v. Village Voice Media Holdings, LLC holds that
Backpage substantially contributed to the material development of the advertisements that
marketed the sexual availability of minors. 56
DID THE SUPREME COURT OF WASHINGTON MAKE THE RIGHT DECISION?
The question here is whether or not the Supreme Court of Washington made the right decision. It
seems indisputable that the decision erred in its extremity and if for no other reason than because
the justification behind the reasoning was based off of a finding of precedent that does not really
exist. 57 The justification for the holding in J.S. v. Village Voice Media Holdings, LLC is rooted in
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the opinion 58 that the facts in J.S. v. Village Voice Media Holdings, LLC present a similar case to
Fair Housing Council of San Fernando Valley v. Roommates.com LLC (hereinafter referred to as
Roommates). 59 To be sure, there are key similarities between the two cases. Both are cases that
examine the extent to which internet service providers should be held liable for their varied
involvement with the content that appears on their sites, which means that in both cases the court
debated the intent of Congress in the CDA in such situations. Both are cases in which certain
societal values come into conflict with the values embedded in the CDA.
Nonetheless, there are key differences between these cases. At the surface level, the
societal values that come into conflict with those inherent to the CDA are different. The values at
stake in Roommates include antidiscrimination in housing, and the right of individual persons to
associate freely without government regulation. 60 In J.S. v. Village Voice Media Holdings, LLC,
the values potentially held in conflict with the CDA generally pertain to the Constitutional right
of a person against enslavement. 61 Another palpable difference is the harm done when the rights
and values in conflict with the CDA are unprotected; in Roommates, the plaintiffs sued because
they felt that the methods of Roommates.com enabled discriminatory housing practices that
would unfairly hurt protected classes of people, and it felt that the practice of Roommates.com
constituted a frustration of the Councils ability to carry out its mission in eliminating
discrimination (an issue debated later in 2012 that the Ninth Circuit denied). 62 In J.S. v. Village
58. Ibid.
59. Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC. 521 F.3d 1157.
60. Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC. 521 F.3d 1157, and Fair
Housing Council of San Fernando Valley v. Roommate.com, LLC. 666 F.3d 1216.
61. J.S. v. Village Voice Media Holdings, L.L.C. 184 Wash.2d 95.
62. Fair Housing Council of San Fernando Valley v. Roommate.com, LLC. 666 F.3d at 1222-1223.
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Voice Media Holdings, LLC, the harm was much more direct: several girls, all minors, suffered
instances of coerced pornography and repeated sexual assault under conditions akin to slavery as
an immediate result of advertisements describing their sexual availability.
An investigation of the cases less obvious differences show that comparing Roommates
to J.S. v. Village Voice Media Holdings, LLC for the purposes of justifying the decision in that
case is flawed and is therefore an incorrect holding. As the dissent in J.S. v. Village Voice Media
Holdings, LLC rightly observes, the majority opinion misinterprets the ruling in Roommates. 63
The holding in Roommates presents a clear example of a situation in which an internet service
provider can also be defined as an internet content provider, and that is because the business
practices of the defendants fall into the two different categories. Again, whether or not protection
from liability can apply to an online entity is definitional and based on the context within which
certain activities are occurring and how those activities are occurring.
In Roommates, Roommates.com was providing a service to people looking to find a
suitable roommate. In doing so, Roommates.com required users to provide information about
themselves pertaining to specific characteristics such as their gender, family status and sexual
orientation, which Roommates.com would then use to create a user profile for the user. 64
Roommates.com also offered users an empty text box that it encouraged users to fill out with
personal information of their choosing so that fellow users of the site could better determine if a
person was a suitable match. 65 The comments box did not come with any specific requirements,
64. Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC. 521 F.3d at 1157-1158.
65. Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC. 521 F.3d at 1157.
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but it was not uncommon for users to upload offensive language. 66 The court ruled that the part
of the Roommates.com procedure that required users to provide personal characteristics about
themselves classified Roommates.com as an internet content provider, and the reasoning behind
that is because Roommates.com had direct control over which information appeared on its site,
and it controlled what it looked like by generating the user-profile. 67 For that material,
Roommates.com could be found liable for any illegal behavior, which in this case would pertain
to discrimination. The court considered the open-ended user comments box to be an unbiased
tool that did not contribute to the defamatory material that site users sometimes posted; in that
activity, the court considered Roommates.com to be an internet service provider. This means that
under the CDA, Roommates.com is immune to any discriminatory, defamatory, or otherwise
illegal material posted by third parties to that comments box.68
Such dueling and distinct activities do not typify the operations of Backpage. Rather,
there is one specific activity that the court investigated, and that is the guidelines that Backpage
presents to users of the site. The court in J.S. v. Village Voice Media Holdings, LLC determined
that these guidelines constitute the same kind of mandatory requirements that significantly affect
the content that appears on the site. The court therefore seeks to justify withholding CDA
immunity from the guidelines by way of the same reasoning that the court in Roommates
withheld immunity from Roommates.com for its development of a user-profile that included
required information. 69 This is a misapplication of the Roommates ruling. The mandatory
66. Ibid. page 1157-1158.

67. Ibid. page 1173.
68. Ibid. page 1157.
69. J.S. v. Village Voice Media Holdings, L.L.C. 184 Wash.2d at 103-104.
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information Roommates required of its users was for information that would be present on the
site, whereas the guidelines presented by Backpage is for information it forbade and that is
illegal anyway. 70 In this critical way they are distinct from one another; in Roommates,
Roommates.com actively tied itself to an activity that is potentially illegal, and Roommates.com
can therefore be held liable for its tortious behavior. In J.S. v. Village Voice Media Holdings,
LLC, Backpage is making a clear effort to disengage itself from encouraging specific content by
explicitly banning it.
The ruling in J.S. v. Village Voice Media Holdings, LLC is therefore in need of
reconsideration because it bases the justification for the decision off of a comparison that is
principally flawed. The Supreme Court of Washington seeks to penalize Backpage for the very
behavior for which it should be protected under the Communications Decency Act. 71 Punishing
Backpage for making a direct effort to prevent the appearance of offensive or illegal material
would effectively deter it from doing so again in the future, but even that is a problematic option,
because removing bans on explicit material would lend the impression to site users that the
illegal material is suddenly allowable. Some professionals cite the reasoning in this case as
troublesome because the rational is weak, 72 but it is apparent that the ruling is not just weak, it is
inadequate in its effort to provide an effective alternative that will wisely guide future cases.
There is no indication from the court of what Backpage might have instructed its users to do
instead.
70. J.S. v. Village Voice Media Holdings, L.L.C. 184 Wash.2d at 103-104.
71. The Communications Decency Act, 47 U.S.C.A. 230(c).
72. See Back Page Blues by Jack Greiner, available at https://www.linkedin.com/pulse/back-page-bluesjack-greiner?trk=prof-post&trkSplashRedir=true&forceNoSplash=true.
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The court is therefore presenting a cyclical trap. If an internet service provider can be
held liable for activities that do not legitimately qualify it as a content creator, then the court has
put the content creator right back into the same position it was in before Congress initiated the
CDA in the first place. Note, for instance, that this situation returns Backpage to the same
circumstances in which it found itself in Backpage.com v. McKenna. 73 Legislatures in several
states (including Washington) attempted to pass laws criminalizing the posting of sex-based
advertisements that depict minors if it can be proved that the web operator knew that the
advertisements pertained to children. 74 Backpage was forced to choose between monitoring each
and every incoming advertisement for fear of criminal retribution, or to actively avoid screening
them because it increased their likelihood of being tied to the knowledge of a crime. 75
CONCLUSION
Why This Discussion Matters. This point of legal conflict represents an important juncture in the
history of the CDA. In any such legal moment of conflict in which very distinct but similarly
important values are at stake, it is important to consider from which of the competing values
Americans stand the most to lose. Because human life is at stake and because the trauma
resulting from human trafficking is so heinous, it would seem at first blush that there could be no
other goal more important to the United States than seeking justice for the victims of human
trafficking and prosecuting all of the offenders. However, the loss in seeking redress through the
73. See "Fighting a Losing Battle to Win the War: Can States Combat Domestic Minor Sex Trafficking
Despite CDA Preemption?" by Stephanie Silvano at pages 390. It is available from the Fordham Law Review. At
this point in the article, Silvano lists several previous cases like Backpage.com v. McKenna in which those newly
developed state laws came into contrast with the ruling of the CDA.
74. Ibid. page 375.
75. Ibid. pages 393-394.
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CDA in J.S. v. Village Voice Media Holdings, LLC is that it establishes a precedent for other
courts to twist however it suits them to for the sake of finding a solution to a difficult problem.
Difficult problems require valid solutions that are clear and not overly vague.
Conflicting Interests and the Bigger Picture. The legal discussion provided here is just one of the
pieces of a bigger dialogue taking place surrounding human trafficking in the United States. The
ruling in J.S. v. Village Voice Media Holdings, LLC presents troubled reasoning. It is reflective
of one plausible strategy, which would be to shut down the venue through which it occurs. 76 The
theory there is that sex trafficking, like all other forms of trafficking, operates on a system of
mobility. In an illegal market there are always two platforms for that movement: a physical one
in which communication and crimes happen in person, and a virtual one. 77 The idea is that if
legislation and legal ruling can find a way to shut down Backpage, then human traffickers will
lose a key venue through which to conduct business.
Theoretically, human beings are all smuggled into basements and trucks, through
highways, and over city limits, state lines, and national boundaries; those persons are also all
potentially advertised and made commercially available through the Internet. 78 As the Internet is
a key resource for business in sex trafficking, any effort to cut off the flow of communication
and supply of information about how and where to buy sex (and whom to purchase) will have a
direct impact on the ability of offenders to further perpetrate the trafficking. The theory stands
76. See the Conclusion of A Letter to Congress: The Communications Decency Act Promotes Human
Trafficking by Abigail Kuzma.
78. Ibid. page 68.
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that without a vessel through which to conduct operations, trafficking will be effectively
deadened.
The Internet is a multifaceted, shifting entity. It does not have one entrance and one exit,
it does not exist on one plane like a road does. If anything, scholars consider that shutting down
open advertising spots 79 as scenes for advertising illegal services will make perpetrators harder
to eventually catch. The Deep Web, a part of the Internet that is not available through the large
searching aggregate function in outlets like Google, allows black markets to operate through
well-hidden settings when more traditional routes become unavailable. 80 Emerging methods of
commerce like the Bitcoin enable businesses to operate in ways that are increasingly furtive and
underground. 81 While Backpage may occasionally be involved (intentionally or not) with the
trafficking of minors through its advertisements, the reality is that trafficking is known to
sometimes occur there. If Backpage is shut down, law enforcement has one less platform through
which to target and prosecute the actual perpetrators of trafficking. 82
What is more, evidence shows that ridding the Internet of these advertisement sites may
not make much of a difference to the national effort to eradicate trafficking. 83 There is scant
indication to suggest that eliminating human trafficking business through online advertisements
79. See Sex Trafficking On Backpage.com: Much Ado about (Statistically) Nothing by Julie Ruvolvo,
available at http://techcrunch.com/2012/10/06/sex-trafficking-on-backpage-com-much-ado-about-statisticallynothing/.
81. Ibid. page 68.
83. Ibid.
Cornelissen 20
on sites like Backpage will shut down the presence of such criminal activity on those sites, 84 let
alone online. 85 Criminals may switch tactics and begin posting messages through non-adult
pages using coded language.
Take Backpage, for instance. It is most notorious for posting advertisements that
allegedly feature minors, but it actually employs a team of over 100 people to scan for offensive
material in its online Adult advertisements. 86 Of the 9,000,000 advertisements that come through
the website each day, Backpage is removing about 1,000,000 a month that are offensive, and of
that amount 18,000 are removed for reasons pertaining to indecency. 87 Only 400 each month are
removed because of a suspicion that the advertisement pertains to a minor, and Backpage
forwards all of those advertisements to the National Center for Missing and Exploited
Children. 88
In spite of everything that its reputation says about it, Backpage employs several
benevolently intentioned tactics in the effort to protect people from human trafficking that is
unparalleled by its rivals in the field. 89 Backpage faces the same challenges as law enforcement
in figuring out which advertisements feature minors, but at least it is making a robust effort. 90
84 See Human Trafficking and the Internet by Szde Yu from Combating Human Trafficking A
85. Ibid.
87. Ibid.
88. Ibid.
89. Ibid.
90. Ibid.
Cornelissen 21
Instead of campaigning to shut it down, perhaps legislators and the courts should capitalize on
the efforts of Backpage, as that may be a powerfully effective strategy in making a real
difference in the fight against human trafficking.
Cornelissen 22
Works Cited
Brysk, Alison, and Austin Choi-Fitzpatrick. "Introduction: Rethinking Trafficking." From

Human Trafficking to Human Rights: Reframing Contemporary Slavery. 1st ed.
Philadelphia: U of Pennsylvania, 2012. 1-13. Print.
The Communications Decency Act. 47 U.S.C.A. 5-230. Print.
Definitions and Methodology. U.S. Department of State. The Office of Website Management,
Bureau of Public Affairs. Web. 19 Dec. 2015.
<http://www.state.gov/j/tip/rls/tiprpt/2013/210543.htm>.
The Facts. Polaris. Polaris, 12 Oct. 2015. Web. 19 Dec. 2015.
<https://polarisproject.org/facts>.
Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC. 521 F.3d 1157. United
States Court of Appeals, Ninth Circuit. 2008. The Federal Reporter. WestlawNext. 3
Apr. 2008. Web. 19 Dec. 2015.
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC. 666 F.3d 1216. United
States Court of Appeals, Ninth Circuit. 2012. The Federal Reporter. WestlawNext. 14
Jul. 2011. Web. 19 Dec. 2015.
Gallagher, Anne, and Joy Ezeilo. The UN Special Rapporteur on Trafficking: A Turbulent
Decade in Review. Human Rights Quarterly 37.4 (2015): 913-41. Print.
Cornelissen 23
Greiner, Jack. "Back Page Blues." Jack Greiner. LinkedIn, 5 Sept. 2015. Web. 20 Dec. 2015.
<https://www.linkedin.com/pulse/back-page-blues-jack-greiner?trk=profpost&trkSplashRedir=true&forceNoSplash=true>.
Human Trafficking Online: Cases and Patterns. Technology Human Trafficking. University of
Southern California, 2011. Web. 14 Dec. 2015.
<http://technologyandtrafficking.usc.edu/report/human-trafficking-online-casespatterns/>.
J.S. v. Village Voice Media Holdings, L.L.C. 184 Wash.2d 95. Supreme Court of Washington.
2015. Media Law Reporter. WestlawNext. N.d. Web. 13 Dec. 2015.
Kristof, Nicholas. Not Quite a Teen, Yet Sold for Sex. The New York Times. The New York
Times, 18 Apr. 2012. Web. 19 Dec. 2015.
<http://www.nytimes.com/2012/04/19/opinion/kristof-not-quite-a-teen-yet-sold-forsex.html?_r=0>.
Kuzma, Abigail. A Letter to Congress: The Communications Decency Act Promotes Human
Trafficking. A Letter to Congress: The Communications Decency Act Promotes Human
Trafficking. Indiana Attorney General, 2013. Web. 14 Dec. 2015.
<http://www.in.gov/attorneygeneral/files/The_Communications_Decency_Act_Promotes
_Human_Trafficking.pdf>.
Model State Provisions on Pimping, Pandering, and Prostitution. Model State Provisions on
Pimping, Pandering, and Prostitution. U.S. Department of Justice. Web. 19 Dec. 2015.
<http://www.justice.gov/olp/model-state-provisions-pimping-pandering-andprostitution>.
Cornelissen 24
Peters, Alicia W. Responding to Human Trafficking: Sex, Gender, and Culture in the Law.
Philadelphia: U of Pennsylvania, 2015. Print.
Ruvolo, Julie. Sex Trafficking On Backpage.com: Much Ado about
(Statistically) Nothing. TC. TechCrunch, 6 Oct. 2012. Web. 19 Dec. 2015.
<http://techcrunch.com/2012/10/06/sex-trafficking-on-backpage-com-much-ado-aboutstatistically-nothing/>.
Sex Crimes. WHAT ARE THE PROSTITUTION LAWS IN THE US. LAWS, 2015. Web. 14
Dec. 2015. <http://sex-crimes.laws.com/prostitution/laws-prostitution.>.
Silvano, Stephanie. "Fighting a Losing Battle to Win the War: Can States Combat Domestic
Minor Sex Trafficking Despite CDA Preemption?" Fordham Law Review 83.October
2014 (2014). WestlawNext. Web. 13 Dec. 2015. https://a.next.westlaw.com.
United Nations. Convention against Transnational Organized Crime. Protocol to Prevent,
Suppress And Punish Trafficking In Persons, Especially Women And Children. New
York: United Nations, 2000. Web. 19 Dec. 2015.
<http://www.osce.org/odihr/19223?download=true>.
Yu, Szde. Human Trafficking and the Internet. Combating Human Trafficking A
Multidisciplinary Approach. CRC Press, 2014. 61-72. Print.
Zeran v. America Online, Inc. 129 F.3d 327. United States Court of Appeals, Fourth Circuit.
1997. The Federal Reporter. WestlawNext. 2 Oct. 1997. Web. 19 Dec. 2015.

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