This afternoon, U.S. law enforcement agencies seized the domain name of Backpage.com, effectively shutting down the website. Most visitors to the site will now see a pop-up notifying them of the seizure (while other visitors may continue to see the site until the change fully propogates through the Domain Name System), and announcing a press call by the Department of Justice to be held today at 6:00 p.m. EST.

The legal basis for the seizure remains unclear, but it could not have been FOSTA-SESTA, the legislation recently approved by both chambers of Congress to combat online sex trafficking, since that bill has not been signed by President, and thus has yet to become law. SESTA, the portion of that bill developed by the Senate, amends Section 230 of the Communications Decency Act to make websites directly responsible for user content that facilitates sex trafficking, whereas Section 230 had previously immunized websites from civil lawsuits or state criminal prosecution (but not federal criminal prosecution) based on user content unless they shared in responsibility for “developing” that content.

“The argument for SESTA was a sham all along,” said Berin Szóka, President of TechFreedom. “The bill’s sponsors insisted that Congress had to pass new legislation so that Backpage could be brought to justice. First, they claimed they needed a new criminal law. But today’s domain seizure makes clear that law enforcement agencies didn’t need a new law to shut down Backpage; they had plenty of legal tools and just needed to make it a priority. Second, SESTA’s sponsors claimed that Section 230 effectively made it impossible for sex trafficking victims to recover damages in court. But last week, a district court judge ruled that a victim’s lawsuit could proceed, because the Jane Doe plaintiff had satisfied her initial burden of proof to show that Backpage had helped to create sex trafficking ads, and thus lost its Section 230 immunity. In short, existing law is working.”

“For the last nine months,” continued Szóka, “we’ve been warning that the Jane Doe ruling was imminent, and because even the lawyers for Backpage’s founders said, fourteen months ago, that ‘indictments may issue anytime’ against their clients in Arizona. Today’s seizure appears to stem from that investigation, given that the DOJ’s mentions the U.S. Attorney for Arizona. Since last year’s Senate investigative report about Backpage, combined with last year’s Washington Post expose, the legal case against Backpage has been overwhelming. We’ll give law enforcement the benefit of the doubt and assume that it’s merely an unfortunate coincidence that they were finally ready to seek a shutdown order only after SESTA had already passed.”

“But,” lamented Szóka, “Congressional leadership knew exactly what they were doing: they cynically rushed SESTA through, bypassing the experts on the Judiciary Committees and ignoring DOJ’s constitutional concerns, to avoid having to face hard questions about whether their bill was really necessary. Even before SESTA has become law, the bill’s unintended consequences are already becoming clear, with sites like Craigslist shutting down personal ad categories entirely. It’s not too late for Trump to veto this law, and ask Congress to give this issue the attention it deserves.”

“Sex trafficking was exploited as an emotional pretext to chip away Section 230 immunity,” concluded Szóka. “The real benefactors of this legislation are trial lawyers, tech companies with an ax to grind against other tech companies and their lobbyists — none of whom really care about victims. The best way to ease prosecution of sites like Backpage, while also ensuring compensation of victims, would be to enact the House Judiciary Committee’s version of FOSTA, and leave SESTA in the dustbin of bad ideas about regulating the Internet.”

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We can be reached for comment at media@techfreedom.org. See more of our work on SESTA and FOSTA, including:

  • Our  statement on how FOSTA-SESTA hurts victims
  • Our statement on the Jane Doe decision
  • Our post on why the bill likely does violate the Constitution’s ex post facto clause
  • Our statement on Sen. Wyden’s amendments to fix SESTA’s largest flaws
  • Our joint statement with Engine on the House vote on FOSTA
  • Our letter to Reps. Goodlatte and Wagner on the FOSTA markup
  • Our primer on anti-sex trafficking bills
  • Our statement on SESTA
  • Tech Policy Podcast #189: Fighting Online Sex Trafficking
  • You can read more on how FOSTA-SESTA hurts victims here.

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