State law runs afoul of protections for Internet providers, EFF claims

The Washington law would penalize online content providers for hosting ads for underage prostitution

The Electronic Frontier Foundation is challenging a Washington State law that criminalizes advertising for underage prostitution, claiming it runs afoul of federal protections for websites and ISPs for the actions of their users.

The law, SB 6251, seeks to limit the sexual exploitation of minors by making it a felony to run advertisements for such services. It requires online advertising platforms to attempt to verify in person the age of people whose sexual services are advertised.

The legislation was signed into law by Washington Governor Christine Gregoire on March 29 and was set to take effect last week. Its enforcement has been delayed as the result of a legal challenge from the online classifieds site, Backpage.com, which is owned by Village Voice Media. Backpage.com has sued the state and county attorneys general in federal court.

EFF filed a motion on Thursday seeking to intervene in the case on behalf of Internet Archive, a digital library that archives Web content.

Both Backpage and Internet Archive assert in their filings that they do not condone underage prostitution, but they argue that the law should not punish online service providers.

"At its core, this lawsuit is about the ability of the state of Washington to impose liability on online service providers for hosting and disseminating content created by third parties," the Internet Archive motion reads.

The law "will force, by threat of felony prosecution, websites and others to become the government's censors of users' content," Backpage alleges in its challenge.

Holding online service providers liable runs contrary to the immunity carved out in the federal Communications Decency Act, specifically in Section 230, both suits assert.

"The appropriate way to combat illegal speech online is to prosecute the people who are engaged in bad conduct," said Matt Zimmerman, a senior staff attorney at EFF.

In a joint statement on Backpage's suit, the law's sponsor, Senator Jeanne Kohl-Welles, a Seattle Democrat, and Seattle Mayor Mike McGinn called the classifieds site "an 'accelerant' of the commercial sexual exploitation of children."

"We know, based on the experience of multiple online and print forums for escort services, that the only way to be sure that Backpage.com isn't being used to sell children for sex is to verify the ages of the people advertised on their site," the two said.

Internet Archive is seeking to intervene in the suit because Backpage doesn't adequately represent its interest in the case, Zimmerman said. For example, the website may opt to settle with the state in order to avoid prosecution or may not adequately pursue the aspects of the law that are of most concern to the Internet Archive.

Internet Archive "wants to get the court to fully engage and fully evaluate the legality" of the state's move to hold service providers liable, Zimmerman said.

The next hearing in the case is set for July 20, when the judge will decide whether to turn the temporary restraining order into a preliminary injunction that would remain in effect while the case is argued.

Tennessee has already passed a law similar to Washington's. New York and New Jersey are considering similar legislation.

Cameron Scott covers search, web services and privacy for The IDG News Service. Follow Cameron on Twitter at CScott_IDG.

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