Unlike the IPACT proposal, however, the proposed record-keeping requirement would
likely have less preventive impact, since the records would merely be kept available for
inspection by law enforcement when a human trafficking case is suspected. At the point that
federal law enforcement determines that a child is being unlawfully advertised, the damage will
already be done: that child will have been trafficked, her body used, misused and traumatized by
thousands of men.266 However, requiring accountability of the users and posters could reduce
demand for illegal activity. This is because typically, a major attraction of the Internet is
anonymity, and requiring users and posters to provide identification will discourage those who
use the internet to solicit a prostitute because they prefer their activity to be less visible to their
friends and family.267 While this record-keeping proposal could make a significant impact in
reducing demand and assisting law enforcement efforts to investigate and interdict possible
traffickers, it does not prevent particular children from being trafficked. Therefore, it would be
more effective if implemented in conjunction with the IPACT regulatory mechanism.
C. Proposal 3: State Criminal Law
As noted previously, Washington, Tennessee, and New Jersey have sought to enact state
laws attempting to hold ISPs like Backpage criminally liable for advertising commercial sexual
abuse of a minor. All of these states’ statutes have been enjoined from enforcement, in part due
to the preemption section of the CDA, which states, “no liability may be imposed under any State
or local law that is inconsistent with this section.”268 Another CDA provision, titled “No effect
on criminal law,” states that the CDA is not intended to impair enforcement or prosecution under
federal criminal statutes.269 Utilizing this section, § 230 (e)( 1), a number of state Attorneys
General have encouraged Congress to amend this section to add the words “or state” to read: that
“[n]othing in this section shall be construed to impair the enforcement of § 223 or 231 of this
title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title
18, or any other Federal or state criminal statute.”270
While this approach appears wonderfully simple, it is likely to be challenged. First,
while amending the CDA to add "or state" will create new authority under the criminal law
section of the CDA, the defendant ISP being prosecuted under such a state criminal law would
almost certainly point to the existing CDA immunity language271 to say that the state statute
nonetheless remains in violation of the CDA. As noted above, this section of the CDA states:
“Nothing in this section shall be construed to prevent any State from enforcing any State law that
is consistent with this section."272 The defendant ISP would likely argue that this CDA § 230
(e)( 3) language invalidates any state criminal law finding an ISP liable as being inconsistent with
the CDA immunity. In fact, Backpage has sued to enjoin each of these three state statutes from
266 See, e.g., supra text accompanying notes 12-14, 63. “Utilizing a conservative estimate, a victim would be raped by 6,000 johns
during the course of her victimization.” Abigail L. Kuzma, Demand Reduction: Critical Next Step in the Fight Against Sex
Trafficking, A.B.A. INT’L L. NEWS, Fall 2013, at 27, 28-30; LINDA A. SMITH ET AL., SHARED HOPE INT’L, THE NATIONAL REPORT ON
DOMESTIC MINOR SEX TRAFFICKING 20 (2009), http://sharedhope.org/wp-
267 Kuzma, supra note 266.
268 47 U.S.C.A. § 230(e)( 3) (West 2013).
269 Id. § 230(e)( 1) (emphasis added). It should be noted that despite this exception to the CDA, a number of different types of federal
criminal statutes have been unsuccessful in challenging the immunity of the CDA. For example, in Doe v. Bates, the court ultimately
found immunity for Yahoo! despite the arguments made (and evidence presented) by Plaintiff that a violation of federal child
pornography laws was present. Doe v. Bates, 5:05-CV-91-DF-CMC, 2006 WL 3813758, at 5-6 (E.D. Tex. Dec. 27, 2006).
270 Letter from 49 Att’ys Gen., supra note 81 (emphasis in original).
271 47 U.S.C.A. § 230(e)( 3).