Does Washington State's SB 6251 Require Online Classified Sites to Monitor All Third-Party Content?

The trafficking of children for sex in the United States is an appalling and very real problem, which a new Washington state law means to eliminate by targeting websites that offer classified advertising for escort services. But many fear the law poses a serious threat to free speech on the Internet by imposing upon online service providers the burdensome duty to monitor, vet, and otherwise censor third-party content.

Signed into law earlier this year, Washington Senate Bill No. 6251 creates the felony offense of "advertising commercial sexual abuse of a minor." Though the bill does not explicitly reference Backpage.com, there is little doubt that the Village Voice Media Holdings site was the impetus for the law. Backpage.com has generated a veritable furor by refusing to nix its adult section, to which personals featuring underage prostitutes are posted at a frequency subject to considerable debate. During hearings on the bill, a member of the Washington state legislature announced that she would "love to see the escort services section [of Backpage.com] shut down completely." The law was also touted as a landmark in the years-long offensive by state attorneys general condemning Backpage.com for not doing enough to prevent exploitation of minors via the site. 

As reported by Eric Goldman, The First Amendment Center, and many others, Backpage.com filed a federal lawsuit in the U.S. District Court for the Western District of Washington seeking to invalidate the law before it was slated to take effect. Shortly thereafter, the Internet Archive filed a motion to intervene as a plaintiff in the suit (which was granted on Monday). An order preventing enforcement of the law will remain in effect until further hearings in the case. 

Both Backpage.com and the Internet Archive stress the implications of SB 6251 for the practice of hosting third-party content online, should the law withstand review. The initial complaint in Backpage.com v. McKenna alleges that the threat of criminal prosecutions under the statute would effectively require thousands of websites to screen vast amounts of user-generated material for content that might trigger a felony charge under the law. The Internet Archive echoes these fears, stating that the online library "has no practical ability to evaluate the legality of any significant portion of the third-party content that it makes available online."

The question of whether SB 6251 could force Internet intermediaries to police third-party content is worth examining, because of the radical effect that imposing a monitoring requirement would have on the operation of sites that provide access to third-party content.  This is particularly important with an act similar to Washington's now in effect in Tennessee.

Currently, federal law does not clearly establish a general duty of Internet intermediaries to pass on the legality of material created or published by third parties. By its terms, section 230 of the Commnications Decency Act provides online service providers with broad immunity from liability stemming from third-party content. The statute does not cover federal criminal law or intellectual property claims, but it is largely understood that section 230 relieves websites from the responsibility of screening user-generated content for illegal material. 

Moreover, existing proscriptions for crimes of a sexual nature against minors appear to lack monitoring requirements. 18 U.S.C. § 2252, for example, outlaws the possession and distribution of child pornography. It punishes the knowing receipt, distribution, and access of visual depictions of minors engaging in sexually explicit conduct. The statute sets forth affirmative defenses for those who, after becoming aware of such material, contact law enforcement officials (and grant them access to it) or destroy the material altogether. If there is a duty on Internet intermediaries under section 2252 to act (if at all) with