being implemented immediately upon their enactment by their respective state legislatures.273
Certainly in such a case where the ISP is challenging the state statute, the state could argue in
defense of their legislation that Congress would have determined in adding “or state” to the CDA
that state criminal law must not be automatically inconsistent. Congress would not have enacted
language including the words “state law” in the federal criminal law exception if it were
automatically inconsistent with the remaining CDA provisions. As a matter of legislative
interpretation, a court would most likely consider that the addition of this language at a later date
was intended to be a substantive change, and therefore should not be interpreted as being
inconsistent and thereby meaningless.
Even when the state legislation survives that hurdle, however, it should be noted that
previous attempts to use the § 230(e)( 1) federal criminal law exception have thus far proved
unsuccessful, even with respect to federal criminal statutes. As outlined in detail above, despite
the clear language of the CDA,274 lower courts have nonetheless found that the CDA provides
immunity from federal criminal statutes.275 Further, the courts at issue have also found criminal,
constitutional (void for vagueness), and First Amendment arguments persuasive when they have
failed to find ISPs like Backpage liable under criminal statutes. Nonetheless, these were lower
court cases and were decided some years ago. With a greater understanding of sex trafficking
and its impact and a clearer analysis of the CDA language, it is possible future courts would not
find these previous decisions persuasive.
In short, even though this approach fails to prevent the trafficking in the first place (only
after a child has been found trafficked is the ISP liable) it has advantages. It holds ISPs liable for
their part in trafficking children on the Internet and will fight trafficking by ultimately reducing
the number of ads that traffic children. While this approach is more law enforcement focused
rather than victim focused, it would reduce trafficking on the Internet.
D. Proposal 4: State Consumer Protection Regulatory Approach
One of the most promising proposals to protect children from online trafficking is a state
consumer protection regulatory approach. Under this approach, a particular state statute provides
both a registration system and a regulatory database. This can serve to both capture identity and
age information and prevent children from being trafficked on the Internet. Essentially, this
approach is a combination of Proposals 1 (IPACT) and 2 (Record- Keeping), applied at the state
level. This approach is promising because, like the IPACT proposal, it passes constitutional
muster, is not inconsistent with the CDA, and also works to prevent trafficking.
Gateway types of computer systems have been implemented for many legal and
commercial purposes.276 Gateway systems perform one or more verification operations on
prospective system users, allowing the person seeking access to proceed only when the requisite
legal or commercial requirements are met. Such gateway systems all include the following
components: 1) a front-end portal to which the would-be user applies and provides information;
2) an internal automated procedure that applies a set of verification rules to the user’s
information; and 3) an internal database that stores the information required to ensure
verification; this information is used by the verification rules.277 As noted above, E-Verify is an
273 See supra text accompanying notes 136-137, 150-154.
274 “Nothing in this section shall be construed to impair the enforcement of Section 223 or 231 of this title, . . . or any other Federal
criminal statute.” 47 U.S.C.A. § 230 (e)( 1).
275 See supra Part V-B.
276 Email from Eduard Hovy, Carnegie Mellon Univ., to author (Jul. 21, 2013) (on file with the author).