Kaye Scholer Files Amicus Brief in Support of National Center for Missing and Exploited Children

Brief urges court to deny’s effort to hide behind Communications Decency Act

October 21, 2014

Kaye Scholer submitted an amicus brief in the  Supreme Court of the State of Washington on behalf of pro bono client The National Center for Missing and Exploited Children (NCMEC), the leading nonprofit organization in the US working on issues related to missing and sexually exploited children.  Three girls—two thirteen-year-old seventh graders and a ninth-grader— are suing online marketplace (Backpage).  As described in a NCMEC op-ed that ran in The Seattle Times on October 19, the girls allege that their pimp continuously advertised them for sex on the site’s “escorts” section. The Supreme Court hears oral argument on October 21 on Backpage’s appeal from the trial court’s decision to allow the girls’ claims to go forward.

Local law enforcement rescued the girls and prosecuted the girls’ pimp. One of the 13-year-olds reported being raped by different men five or more times each night for more than a year. The three sued the pimp and Backpage in Washington state court for damages. Backpage moved to dismiss the complaint citing Section 230 of the Communications Decency Act (CDA), a federal statute, claiming that Section 230 offers immunity for Internet communications providers and others who act as mere “conduits” for unlawful content.  A Tacoma trial judge denied Backpage’s motion for dismissal.  The Washington Court of Appeals then transferred the case, on its own motion, to the Washington Supreme Court.

Researchers believe that Backpage is the most common place to find a missing child being exploited through sex trafficking. Discovery would shine light on the extent to which Backpage may have encouraged or enabled child sex trafficking on their site. 

Kaye Scholer drafted and filed an amicus brief for NCMEC taking aim at Backpage’s crucial role in the pervasive business of child sex trafficking.  Using examples drawn from NCMEC’s experience with Backpage, the amicus brief challenged the veracity of Backpage’s publicly-announced “safeguards.”  The amicus brief also argued that the broad protection favoring Internet freedom set forth in Section 230 of the CDA has been distorted from its original purposes, especially in cases, like this one, where pernicious and criminal behavior is being promoted online. The brief concluded, “Congress never intended Section 230 to immunize the deliberate promotion of child sex trafficking. To the contrary, Section 230 was part of a larger Congressional effort to protect children from pernicious content online. No appellate court has ever squarely held that Section 230’s immunity extends to the unrestricted publication of child sex trafficking ads. This Court should not be the first to cross that line.”

Kaye Scholer’s Robert Barnes and Oscar Ramallo worked with NCMEC on the brief. Four other child welfare-related groups also filed amicus briefs supporting the plaintiffs.  The Washington Attorney General has also filed a brief urging the Supreme Court to let the case go forward to discovery.  Backpage is also supported by amicus briefs from the Electronic Frontier Foundation and a group of First Amendment academics led by Eugene Volokh.

Kaye Scholer is a charter member of the Law Firm Pro Bono Challenge, which requires that at least three percent of our overall legal practice must consist of pro bono work. We meet or exceed this challenge each year by providing quality legal assistance to a diverse range of clients in need.

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