July 27, 2012
Judge Grants Internet Archive's Motion and Blocks Enforcement of New Washington Statute

Says Statute Likely Violates First Amendment, Federal Communications Decency Act

Seattle - Today, a federal district court judge granted a motion by the Internet Archive to block enforcement of an overbroad Washington state anti-sex trafficking statute that could make online service providers criminally liable for providing access to third parties' offensive materials.

The Electronic Frontier Foundation (EFF) is representing the Internet Archive in order to invalidate SB 6251, a law aimed at combatting advertisements for underage sex workers but with vague and overbroad language that is squarely in conflict with federal law. EFF last week appeared in federal district court in Seattle to argue that the court should grant a preliminary injunction barring enforcement of the criminal statute while the lawsuit is ongoing. The court today agreed with the Internet Archive, finding that the statute likely violated the First, Fifth, and Fourteenth Amendments, the dormant Commerce Clause, and Section 230 of the Communications Decency Act.

"We are grateful that the Court agreed with our concerns about the gravity of the structural problems with this statute," said Senior Staff Attorney Matt Zimmerman. "While everyone involved in this case agrees that sex trafficking is an abhorrent practice, the approach used in this statute to combat the problem is fundamentally and irretrievably flawed. States cannot make those who provide access to online information -- like libraries or Internet Service Providers (ISPs) -- responsible for the illegal behavior of third party users, under threat of criminal penalties. Prosecuting criminals themselves will always be the better approach."

SB 6251 was passed with the hope of criminalizing the dissemination of underage sex trafficking ads and imposing a requirement to confirm the ages of individuals in such ads prior to publication. The law, however, is fraught with problems. As written, the vaguely-worded statute -- making it a felony to "directly or indirectly" provide access to any material that might constitute an "explicit or implicit" commercial offer for sex -- could be read to apply not only to posters but to neutral entities that provide access to online information, including ISPs, Internet cafes, and libraries. This would result in a chilling effect as such entities begin feeling pressured to censor protected online speech in order to safely stay on the right side of an unclear law. The Internet Archive is particularly concerned with any statute that seeks to make intermediaries responsible for content created by third parties -- the Internet Archive itself currently makes available over 150 billion archived web pages from 1996 to the present and has no practical ability to screen its collection for illegal content.

With the statute now enjoined, the plaintiffs (including Backpage.com, which has filed a separate complaint challenging the legality of the law) will now move for a final declaration by the court that the statute is illegal.

For the order granting preliminary injunction barring enforcement of SB 6251:
https://www.eff.org/node/71321

For more on this case:
https://www.eff.org/cases/internetarchiv…

Contacts:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org