dissemination, or display of specified content. In doing so, it creates an incentive for online
service providers not to monitor the content that passes through its channels.”141
The court found it likely that S.B. 6251 ran afoul of § (c)( 1) and (c)( 2)(A), and that the
CDA provided complete immunity for Backpage.com and Internet Archive. Citing Fair Housing
Council of San Fernando Valley v. Roommates.com, the court concluded:
[t]hus, under Section 230 ‘any activity that can be boiled down to deciding
whether to exclude material that third parties seek to post online is perforce
immune . . . The message to website operators is clear: if you don’t encourage
illegal content, or design your website to require users to input illegal content,
you will be immune.’142
Unfortunately, even if the ISP does design the website to encourage illegal activity, the court
clarified that the CDA provides immunity. Again citing Roommates.com, the court stated:
The Washington court appeared to be impressed with the steps Backpage took to curb
prohibited illegal activity, such as posting “obscene lewd and lascivious” graphics or photos, or
posting ads for illegal services, such as the exchange of sexual favors for money.144 Further, the
site clarified that adult content and explicit material may only be posted by an adult; prior to
entering the adult section, the user must click a disclaimer that states that the user is eighteen or
older and, “will report any suspected exploitation of minors and/or human trafficking to the
appropriate authorities.”145 Finally, Backpage claimed that it manually reviewed “nearly all
content” submitted for posting to the adult and dating categories.146
The court in Backpage.com v. McKenna also reported that in April 2012, over 3. 3 million
ads were posted on Backpage, but the site blocked, banned, or removed more than one million,
and referred about four hundred to the NCMEC.147 As the court noted, Backpage does not review
all of the content. Unfortunately, its voluntary efforts are not working sufficiently to prevent its
site from facilitating child sexual exploitation and human trafficking:148 as noted by the court, at
least twenty-two children from the Seattle area alone were recovered after having been advertised
online and trafficked.149
141 Id. at 1273.
142 Id. at 1272 (citing Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71, 1175 (9th Cir.
143 Id. (citing Roommates.com, LLC, 521 F.3d at 1174).
144 Id. at 1266.
146 Id. at 1266-67.
147 Id. at 1267.
148 Id. at 1266-67.
149 Id. These instances do not reflect ads on Backpage.com specifically, but online ads in general.