Ropes & Gray Petitions U.S. Supreme Court to Review Federal Lawsuit Against Backpage.com’s Online Child Sex Trade

Ropes & Gray today announced the filing of a petition for a writ of certiorari with the U.S. Supreme Court in Jane Doe v. Backpage.com LLC. The firm is representing three child sex trafficking victims against Backpage.com, a website that transmits the vast majority of internet advertisements for illegal commercial sex in the United States, including online child sex advertising.

In their October 2014 lawsuit filed in the U.S. District Court for the District of Massachusetts, the victims charged Backpage with creating an online marketplace that intentionally facilitates the sexual exploitation of children in violation of federal and state criminal statutes. These statutes authorize child victims to sue the traffickers and those, like Backpage, who knowingly profit from participation in the trafficking. The lawsuit was dismissed by the federal district court, however, on the ground that Backpage is immune from liability under a statute known as the Communications Decency Act (CDA), and that decision then was affirmed in March 2016 by the First Circuit Court of Appeals. The First Circuit concluded that the immunity under the CDA was so broad that it applied even if Backpage itself is engaged in criminal conduct, as Ropes & Gray has claimed on behalf of the victims.

In the petition today, Ropes & Gray asked the Supreme Court to limit the CDA to website operators who serve as passive conduits for internet content. The petition points out that several other courts have rejected the expansive interpretation of the CDA adopted by the First Circuit. And no court has ever extended the immunity to a website, like Backpage, that is allegedly engaged in affirmative conduct that violates criminal statutes. This expansion of the immunity under the CDA by the First Circuit has serious implications. As the internet has developed into a critical element of modern commerce, criminal activity on the internet has increased as a well. The petition argues that Congress did not intend to provide criminals with incentives to use the internet for illegal purposes by providing them with a blank check to avoid compliance with generally applicable statutes. In addition to the child sex trafficking statutes involved in this sex trafficking case, there are numerous other statutes whose enforcement against website operators could be affected by this decision.

“This case presents the Supreme Court with an opportunity to decide an important issue affecting the conduct of business on the internet. When the Communications Decency Act was enacted 20years ago to protect the development of the internet, Congress surely did not intend to shield serious criminal activity from liability under statutes enacted subsequently by Congress to protect victims of child sex trafficking. We are hopeful that the Supreme Court will correct this erroneous interpretation of the law, and restore the opportunity of the victims to demonstrate that Backpage.com is liable for aiding and participating in child sex trafficking,” said John Montgomery, a nationally recognized trial lawyer and the former managing partner of Ropes & Gray, who is leading a team of attorneys working on a pro bono basis.

Ropes & Gray’s team includes appellate & Supreme Court partner Douglas Hallward-Driemeier .