The person seeking to post and the person seeking access to the site would also have to
pay a fee282 to the ISP which would be used to offset the cost of maintaining and operating the
database. The fee could be divided so that half goes to the ISP for maintaining the database and
half goes to the state for human trafficking victim services and law enforcement efforts.
Advertisers would be required to register if they are advertising for a service to be
provided within State X and the advertisement is for escorts, stripping, or lap dancing, or the
advertisement suggests or implies the provision of sexual arousal or gratification through physical
contact in connection with the payment of money. Registration would also be required if the
advertisement is posted in a forum designed for individuals eighteen years of age or older. The
identification information from the person posting the ad, the person depicted in the ad, and the
consumer would be stored by database.
Further, until the documents have been submitted and verified and the fees paid, the
person seeking to post the advertisement and the person seeking to view the advertisement would
be unable to access the ISP. Backpage or other ISPs offering adult services would be required to
provide a notice on their site stating that persons seeking to provide business in State X and that
state's residents must follow this regulatory procedure and follow the gateway verification
procedures. This information would be stored and maintained on the database for five years.283
Similar to IPACT, the ISP would violate the state consumer protection statute for failing
to follow the state regulatory procedure. Noncompliance with the statute due to an ISP’s failure
to abide by the registration process could result in civil prosecution. In the event that the ISP fails
to follow the statutory requirements to compel registration, and if a person depicted in a post is
determined to be underage or is found to be engaging in illegal activity such as prostitution, the
ISP could be found liable for criminal negligence. Thus, both civil and criminal liability would
be based on failure to comply with the state-established consumer protection regulatory
requirements. Thus, no actual knowledge of criminal activity is needed.
One advantage of the state consumer protection regulatory approach is that, like the
federal IPACT proposal, it is the time, place, and manner regulation of commercial speech that is
narrowly tailored to address the compelling state interest of protecting children. It does not
regulate the content of the advertisements. Therefore, it does not run afoul of First Amendment
protections. Further, because it is narrowly tailored to regulate only business activity that takes
place in the particular state and that state's residents, it does not run afoul of dormant Commerce
Clause concerns.284 Thus, because this state consumer protection regulatory approach only
affects business in its own state and its own residents, it does not inappropriately affect interstate
with a database listing runaway children or other law enforcement data available to determine if the person depicted is underage
and/or has previously been a suspected victim of human trafficking. The employee could also check law enforcement data to
determine whether any of the parties have been arrested/convicted of prostitution related charges.
282 A fee of $250 per use might be an appropriate fee. This fee would be a high enough amount to be a deterrent as well as a high
enough amount to pay for the development of the verification system.
283 This photo/ID database would be available to law enforcement to run background checks if there is indication of illegal activity.
For example, if a picture of a person posted is identified as a missing or exploited child, law enforcement may access information
stored in the database to perform background checks and other investigation.
284 The Commerce Clause provides that Congress shall have the power to regulate commerce among the several states. 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. James L. Buchwalter, Construction and Application of Dormant Commerce
Clause, U.S. Const. Art. I, § 8, cl. 3–Supreme Court Cases, 41 A.L.R. FED. 2d 1, 1-8 (2009).