state of Washington, such as a person in another state posting an ad offering commercial sex.162
The criminal act is the posting of the ad, which, because of the lack of geographic boundaries on
the Internet, could occur in any state and wholly outside of Washington.163 According to the
court, “the Internet is likely a unique aspect of commerce that demands national treatment.”164
Indeed, regulations of ISPs must be carefully crafted so that they impact only the specific
boundary intended so as not to run afoul of constitutional protections.
Unfortunately, other states have similarly been enjoined from enforcing such statutes as a
violation of the First Amendment and Commerce Clause.165 This fate is a telling sign for future
constitutional claims against similar laws. Because of these unsuccessful state court claims, other
solutions must be examined to protect children from being trafficked on the Internet.
VI. SOLUTIONS TO ADDRESS THE SHORTCOMINGS OF THE CDA
As the foregoing discussion demonstrates, the CDA provides nearly complete immunity
to ISPs like Backpage that host adult services sections known to be used to traffic children.
Moreover, many adult service ISPs utilize only minimal procedures for monitoring user age, and
the current “voluntary efforts” employed by some ISPs are simply not working.
Further, the majority of ads on adult services sections are likely to be seeking illegal
activity, even if that activity does not rise to the level of human trafficking. A July 2012 article in
The Huffington Post stated that Backpage made up, “ 80 percent of all online prostitution ad
revenue.”166 Moreover, a recent study corroborates that nearly eighty percent of the adult services
ads on Backpage involve prostitution.167 In that study, which examined 2,000 ads, researchers
reported eighty-eight girls they believed to be underage to Phoenix police, but police were able to
recover only three victims.168 One recovered victim was again featured on the site after having
been reported.169 Law enforcement has found that the vast majority of ads in the adult services
section are for prostitution.170 Detective Todd Novisedlak stated in a sworn declaration that he
has been involved in more than 1,200 prostitution investigations, but “has never encountered any
person, posting ads on the escorts section of Backpage.com who was advertising for legitimate
162 Id. at 1285. The Commerce Clause provides that Congress shall have the power to regulate commerce among the several states. See
U.S. CONST. art. I, § 8, cl. 3. This affirmative grant of authority to Congress also encompasses an implicit or “dormant” limit on the
authority of the states to enact legislation that affects interstate commerce. 15A AM. JUR. 2D Commerce § 102 (2013).
163 McKenna, 881 F. Supp. 2d at 1285.
164 Id. at 1286.
165 See Backpage.com, LLC v. Cooper, 3:12-CV-00654, 2013 WL 1558785, at 5-7 (M.D. Tenn. Jan. 3, 2013) (finding that Backpage
would likely prevail on its claims that section 39-13-314 of the Tennessee Code violated the First Amendment and the Commerce
Clause and enjoined the state from enforcing the statute); see also Backpage.com v. Hoffman, 13-CV-03952 DMC JAD, 2013 WL
4502097, at 12 (D.N.J. Aug. 20, 2013) (similarly enjoining the state of New Jersey from enforcing a Human Trafficking Prevention,
Protection and Treatment Act).
166 Malika Saada Saar, The Internet, Backpage, Child Trafficking, Congress—And Our Responsibility to Vulnerable Children,
HUFFINGTON POST (Jul. 10, 2012), http://www.huffingtonpost.com/malika-saada-saar/the-internet-Backpage-chi_b_1660413.html.
167 JJ Hensley, ASU Study: Most Ads on Backpage’s Adult Section for Prostitution, REPUBLIC (Aug. 25, 2012),
170 Sara Jean Green, New State Law Targeting Sex-Related Ads on Websites Faces Court Test, SEATTLE TIMES (Jul. 19, 2012),