Backpage.com, LLC v. McKenna

• Decision Date: 27 July 2012
• Docket Number: Case No. C12–954–RSM.
• Citation: 881 F.Supp.2d 1262
• Parties: BACKPAGE.COM, LLC, Plaintiff, and Internet Archive, Plaintiff–Intervenor, v. Rob McKENNA, Attorney General of the State of Washington, et al., Defendants, in their official capacities.
• Court: U.S. District Court — Western District of Washington

881 F.Supp.2d 1262

BACKPAGE.COM, LLC, Plaintiff,
and
Internet Archive, Plaintiff–Intervenor,
v.
Rob McKENNA, Attorney General of the State of Washington, et al., Defendants, in their official capacities.

Case No. C12–954–RSM.

United States District Court,
W.D. Washington,
at Seattle.

July 27, 2012.

Validity Called into Doubt

West's RCWA 9.68A.104

[881 F.Supp.2d 1265]

Ambika K. Doran, James C. Grant, Davis Wright Tremaine, Seattle, WA, for Plaintiff.

Matthew J. Zimmerman, Electronic Frontier Foundation, San Francisco, CA, Venkat Balasubramani, Focal PLLC, Seattle, WA, for Plaintiff–Intervenor.

Lana Sue Weinmann, Amy Kathleen Eiden, David J. Eldred, Seattle, WA, Ione S. George, Jacquelyn Moore Aufderheide, Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION
RICARDO S. MARTINEZ, District Judge.
I. INTRODUCTION

This matter comes before the Court on the Motion for a Preliminary Injunction filed by Plaintiff Backpage.com, LLC (“Backpage.com”) (Dkt. # 2) and the Motion Joining in the Motion for a Preliminary Injunction filed by Plaintiff–Intervenor, the Internet Archive (“IA”) (Dkt. # 34). Backpage.com and IA (“Plaintiffs”) seek to preliminarily enjoin enforcement of a new Washington law, Senate Bill 6251 (“SB 6251”), which was scheduled to take effect on June 7, 2012. SB 6251 criminalizes the offense of advertising commercial sexual abuse of a minor. For the reasons set forth below, Plaintiffs' motions are GRANTED.

[881 F.Supp.2d 1266]

II. DISCUSSION A. Background
1. Plaintiff Backpage.com

Plaintiff Backpage.com operates an online classified advertising service located at www. backpage. com. It is the second largest online advertising service and hosts millions of advertisements per month throughout the country. Ads displayed on Backpage.com's website are categorized by state and city, then by topical category, such as local places, community, buy/sell/trade, automotive, musician, rentals, real estate, jobs, forums, dating, adult, and services. The advertisements themselves are created and posted by Backpage.com's users, who pay $5–$10 to post ads in the adult category, $1 to post ads in the dating category, or otherwise post ads for free. Backpage.com requires that users pay any advertising fees by credit card. See generally Dkt. # 3.

Pursuant to Backpage.com's Terms of Use, illegal content and illegal activity is prohibited on the Backpage.com service. See Dkt. # 3, Ex. B. Adult content and explicit material is only allowed to be posted in designated adult categories by an adult who is over 18 years of age. Id. “Obscene or lewd and lascivious graphics or photographs which depict genitalia, actual or simulated sexual acts or naked images” are prohibited. Id. at Ex. C (“Posting Rules”). Users are instructed that “[a]ny post exploiting a minor in any way will be subject to criminal prosecution and will be reported to the Cybertipline for law enforcement.” Id.

If a user comes across an ad that does not comply with these rules, the user may report the ad to Backpage.com by clicking a Report Ad link in the ad. Doing so brings the user to a Report Ad page where he or she can select whether the ad is “Inappropriate or Illegal Content”, “Over Posted / Spam”, or “Wrong Category.” Id. at F. The webpage instructs users to email abuse@ backpage. com if the ad “involves a threat to a child or an image of child exploitation.” Id.

Users seeking to post or view material in the adult or dating categories are shown a page entitled “Disclaimer” prior to entering those portions of the site. See Id. at Ex. D. The disclaimer requires, inter alia, that the user represent that he or she is 18 years of age or older and that he or she will report any suspected exploitation of minors and/or human trafficking to the appropriate authorities. The user must click on words “I agree” prior to entering these portions of the Backpage.com website. Id. A hyperlink on the page links to a popup window entitled Stop Trafficking that lists phone numbers and tip lines that users can use to report exploitation of children and human trafficking. Id. at Ex. E.

Links to a page entitled User Safety “are available throughout” the Backpage.com website. Id. at ¶ 12 & Ex. H. The User Safety page includes information on Responding to an Ad, Placing an Ad, Safety Tips, Scams and Fraud, Human Trafficking, and Child Exploitation. The Human Trafficking and Child Exploitation portions of the User Safety page provide links and phone numbers for the National Human Trafficking Resource Center (“NHTRC”) and the National Center for Missing and Exploited Children (“NCMEC”). Id. at Ex. H.

Backpage.com also monitors content submitted by users to the adult and dating sections of its website. Most posts are filtered through an automated system that scans content for approximately 26,000 “red-flag” terms, phrases, codes, email addresses, URLs and IP addresses. Dkt. # 3 at ¶ 13. In addition, Backpage.com manually reviews “nearly all content” submitted for posting to the adult and dating

[881 F.Supp.2d 1267]

categories. Id. Most ads are reviewed for illegal and other prohibited conduct prior to posting, then reviewed a second time once they are posted online. Id. Over 100 people and more than 80% of Backpage.com's workforce are engaged in this monitoring process.

Backpage.com submits referrals for suspected juveniles posting on Backpage.com to NCMEC. When this happens, NCMEC prepares reports based on the referrals and forwards its reports to the FBI. See Dkt. # 64, ¶ 4. The FBI then distributes the reports to various local law enforcement agencies, including the High Risk Victims section of the Seattle Police Department's VICE unit. Id.

In April 2012, users posted more than 3.3 million ads on Backpage.com. Id. at ¶ 4. That same month, Backpage.com blocked, banned or removed more than 1 million user submissions and posts and referred approximately 400 posts to NCMEC. Id. at ¶ 14.

2. Plaintiff in Intervention the Internet Archive

The Internet Archive is a non-profit corporation whose mission is to build an “Internet library,” offering permanent access to historical collections that exist in digital format for researchers, historians, and scholars. Dkt. # 36, ¶ 13. Founded in 1996, IA works to prevent the Internet and other “born-digital” materials from disappearing into the past. Id. at ¶ 16. As part of this mission, IA regularly gathers “snapshots” of content on the World Wide Web through a “crawling” and indexing process. Id. It currently maintains over 150 billion web pages archived from 1996 to the present from web sites around the world, including archives of third-party content posted to web sites like Backpage.com and craigslist.org. Id. IA claims that SB 6251 would severely impede the practice of hosting third-party content online. Id. at ¶ 3.

3. Human Trafficking and Child Exploitation on the Internet

Experts estimate that at least 100,000 American juveniles are victimized through prostitution every year. Dkt. # 43, ¶ 3. “A 2008 Seattle human services department report estimated that there are three hundred to five hundred children being exploited for sex in the Seattle area alone each year.” SB 6251 § 1.

Many child prostitutes are advertised through online escort advertisements displayed on Backpage.com and similar websites. Dkt. # 45, ¶ 19. These advertisements are created by prostitutes or third parties at the direction of a pimp or by the pimp him- or herself. Id. Since 2010, the Seattle Police Department (“SPD”) has recovered at least twenty-two children advertised online in the Seattle area for commercial sex. SB 6251 § 1.

Although Backpage.com screens adult ads prior to posting, ads depicting minors still appear online. For example, Defendants point to a recent investigation in which a Backpage.com user identified a photograph associated with an escort ad in the “Seattle escorts” section of the website as depicting a minor. See Dkt. # 46, ¶¶ 5–20. A few days later, on June 11, 2012, the juvenile depicted was arrested and booked into the King County juvenile detention center for prostitution. Id. at ¶ 9. Authorities identified the juvenile as “C.C.” and confirmed that she was 15–years–old and that she had arranged to have sexual intercourse with a man for $80. Id.

The same day that C.C. was arrested, Seattle Police Department detective Todd Novisedlak located another advertisement for C.C. posted on Backpage.com. Id. at ¶ 11. Novisedlak contacted Backpage.com,

[881 F.Supp.2d 1268]

asking that the ad be removed as it depicted a confirmed minor. Id. at ¶ 12. Novisedlak also asked that all other advertisements posted by the same user also be removed. Id. Backpage.com subsequently removed the ad identified by the detective. Id. at ¶ 13.

On June 19, 2012, the FBI distributed another NCMEC report to the SPD regarding a Backpage.com ad depicting C.C. Id. at ¶ 14. This ad had been reported to NCMEC by a Backpage.com moderator who felt that the person depicted in the ad looked young. Id.

Over the course of the next week, Detective Novisedlak identified an additional six advertisements depicting C.C. Id. at ¶ 17. Each of the advertisements listed the same phone number and included the same pictures of C.C. Id. All but one of the ads listed prices as 15–20 Min-$60; 30 Min-$80; 1 Hr-$110. Id.

On June 24, 2012, an undercover police officer with the King County Sheriff's Office viewed an advertisement on Backpage.com that depicted C.C. Id. at ¶ 18. The officer called the number on the advertisement and arranged a meeting with a female. Id. at ¶ 19. The officer and the female agreed on a price of $80 for 30 minutes and an address at which to meet. Id. Upon arriving at the address, the officer discovered fifteen-year-old C.C. Id.

Detective Novisedlak states that in the course of conducting investigations into the commercial sexual abuse of minors, he has visited the escort sections of several...