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Friday, December 7, 2012

Washington's Underage Sex Trafficking Law Ruled Unconstitutional

Posted by on Fri, Dec 7, 2012 at 12:50 PM

Six months after Washington state legislators passed one of the most sweeping underage sex trafficking laws in the country—a law that required internet sites operating in the state to document that advertised escorts were at least 18—the state has apparently agreed with a federal judge that the law is unconstitutional and has dropped its defense.

Attorney General Rob McKenna's office hasn't returned my calls for comment. However, is a big win for, which promptly challenged the new law back in June.

US District Court Judge Ricardo S. Martinez's final judgement (.pdf) states that the state's sex trafficking law violates both the First and 14th Amendments, and steamrolls over the federal Communications Decency Act and sections of the Commerce Clause.

"Threatening to throw service providers in jail for what their users say or do is misguided, incredibly harmful to online free expression generally, and violates federal law," said attorney Matt Zimmerman, who represented a second plaintiff, the Electronic Frontier Foundation, in the case. "We are grateful that the state of Washington has agreed that this statute cannot and will not be enforced against the Internet Archive or anyone else."

"The law is unconstitutionally vague," Judge Martinez concluded. He also called the law "overbroad" and "not narrowly tailored to the state's asserted governmental interests," and ordered the state to pay plaintiffs' attorneys' fees to the tune of $200,000.

Thanks to Slog tipper Matt.


Comments (19) RSS

Oldest First Unregistered On Registered On Add a comment

If the state was really so interested in the welfare of online escorts, they would a) decriminalize the industry so that escorts would actually be safe coming to police, and b) consult them about what should be done. After all, they are the industry experts and the relevant stakeholders here.
Posted by sahara29 on December 7, 2012 at 1:09 PM · Report this
Wandergeist 2
Given the amount of time and money some lawmakers (allegedly!) spend "consulting" with paid escorts, it's funny that topic has never come up.
Posted by Wandergeist on December 7, 2012 at 1:27 PM · Report this
@2 That's because if people bothered to ask sex workers about their industry, it would shatter the assumption that they were helpless victims/shameless harlots. Seriously, take a gander around some sex worker blogs like Tits and Sass. People really, really do not like it and try to "help" by silencing them if they express any opinion other than "sex work makes me a victim."
Posted by sahara29 on December 7, 2012 at 1:39 PM · Report this
Pope Peabrain 5
Make prostitution safe and legal. Stop censorship. Why does this society think you can just ban things by law and everything will be fine? Humans don't work that way.
Posted by Pope Peabrain on December 7, 2012 at 1:59 PM · Report this
Bauhaus I 6
I gotta read the law because on first sight ruling that an underage sex trafficking law is unconstitutional is infuriating. Obviously, the law has to do with more than sex trafficking. We just passed one here in California by way of proposition and it received 81% of the vote, but the next day the Federal court blocked implementation of the sex-offender part of the law. It required sex offenders to blab about their Internet hookups and contacts. A class action suit was filed by the ACLU and the Electronic Frontier Foundation.

The problem with the CA and the WA laws was that both were too broad. So, let's tighten them up and make it so anyone who participates in sex trafficking (except the victims, of course) pays an enormous price because human trafficking is supremely evil.
Posted by Bauhaus I on December 7, 2012 at 2:04 PM · Report this
seandr 7
This ruling merely states the patently obvious.

Given the list of feminists and liberal politicians (hi Mike McGinn!) who testified in favor of this bill, it's obvious rightwingers like Bush/Cheney aren't the only ones who will gleefully trample the Constitution in pursuit of their agenda.

P.S. The best science available on teen prostitution (i.e. surveys of actual teen prostitutes, as opposed to, say, "research" shops paid by advocacy groups to pour over online ads and guess the prostitute's age from the pictures that accompanied the ads - I'll leave it to you to ponder the flaws in that methodology) suggests that almost half are male and around 90% (of males and females) operate completely independently.
Posted by seandr on December 7, 2012 at 2:07 PM · Report this
Funny how it's ok to hold them accountable for copyright infringement but not promoting child rape. Apparently the first amendment is only negotiable when business as opposed to moral interests are involved.
Posted by kinaidos on December 7, 2012 at 2:39 PM · Report this
edie murphy beverly hills have eyes cleary 9
Just based on the "overbroad" and not "narrowly tailored" to the gov interest, this ruling isn't saying that the purpose of the law (prohibiting underage sex trafficking) is unconstitutional, just that the way in which it is being enforced in this law is (hauling service providers into court/jail).

so, basically, find a better way to do what you are claiming to do. But, ask DS.
Posted by edie murphy beverly hills have eyes cleary on December 7, 2012 at 2:45 PM · Report this
seandr 10
@8: As I understand, Internet sites are responsible for removing illegal content once they've been notified of it. This is the same whether it's an issue of copyright, lack of model release, underage prostitution, violations of obscenity laws, etc.

Posted by seandr on December 7, 2012 at 2:52 PM · Report this
Slog tipper Phil sent this yesterday, and noted that two super-righteous organizations---Internet Archive and EFF---are behind this victory for free speech. The law was well-intentioned but dangerously-broad.
Posted by Phil M on December 7, 2012 at 3:26 PM · Report this
Fnarf 12
@3, yeah, you should go up to Vancouver and ask the teen hookers on Burnside how empowered they are.

In Amsterdam, where prostitution was legalized in 2000, most of the prostitutes are trafficked sex slaves, and the city has become the top trafficking destination for organized crime in Europe. Legalization is not a panacea. And saying "if it was legal prostitutes would be safe coming to the police", as @1 did, is just ludicrous.

But hey, free speech! Let's celebrate! I'll bring the 14-year-olds.
Posted by Fnarf on December 7, 2012 at 3:27 PM · Report this
Internet Archive wrote:

Internet Archive & EFF successfully block Washington State law

Earlier this year the Internet Archive with EFF’s help joined a suit to challenge the enforcement of a new Washington state law, SB 6251. While the law was intended to curb advertising for underage sex workers, the language was overly broad and made online service providers and libraries criminally liable for providing access to third parties’ offensive materials, which is in conflict with federal law.

Electronic Frontier Foundation (EFF) wrote:

Washington State Drops Defense of Unconstitutional Sex Trafficking Law
Statute Threatened Operation of Online Libraries and Other Services

San Francisco - Today, Washington state officials announced that they have dropped their defense of a law aimed at combatting online sex trafficking ads by targeting Internet service providers, conceding that the statute was unconstitutional and violated federal law. After a challenge by the Internet Archive and, a permanent injunction barring enforcement of the law will officially go into effect when the federal district court approves the stipulations and proposed orders filed today.

The Electronic Frontier Foundation (EFF) and co-counsel Venkat Balasubramani represented the Internet Archive in the federal lawsuit that struck down SB 6251, a law passed by the Washington legislature in 2012 despite its obvious potential to curtail legitimate speech. For example, the vague and overbroad statute threatened to impose felony liability not only on those directly engaged in illegal acts but also on those who "indirectly" caused to be "disseminated" any "implicit" offers for commercial sex acts. That could potentially affect services that merely provide access to information, like web hosts, ISPs, or online libraries, impeding their ability to operate. Moreover, the statute directly conflicted with Section 230 of the Communications Decency Act (CDA 230), a federal law that bars states from holding online service providers responsible for the acts of their users.

"Threatening to throw service providers in jail for what their users say or do is misguided, incredibly harmful to online free expression generally, and violates federal law," said EFF Senior Staff Attorney Matt Zimmerman. "We are grateful that the state of Washington has agreed that this statute cannot and will not be enforced against the Internet Archive or anyone else."

The Internet Archive and first filed separate challenges to SB 6251 in June, seeking to block both the state attorney general and county prosecutors from enforcing the statute. In July, federal district court judge Ricardo Martinez granted a preliminary injunction, agreeing that the statute likely violated the First, Fifth, and Fourteenth Amendments as well as conflicted with CDA 230. When approved, today's stipulations and orders will convert the preliminary injunction into a permanent one, rendering the statute unenforceable against anyone.

"The protection offered by CDA 230 has allowed YouTube to host user-uploaded videos, Craigslist to host classified ads, Facebook and Twitter to offer social networking, and the Internet Archive to offer billions of archived webpages documenting the evolution of the Internet," said EFF Staff Attorney Nate Cardozo. "While everyone involved in this case agrees with the goal of SB 6251, overbroad laws that create potential liability for general purpose Internet service providers and forums is not the right way to hold sex traffickers accountable."

For the full settlement order:

For more on this case:…

For more on CDA 230:


Nate Cardozo
Staff Attorney
Electronic Frontier Foundation

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
Posted by Phil M on December 7, 2012 at 3:31 PM · Report this
Isn't it a law enforcement officer's dream come true for the crooks to advertise their crime in public?

I mean if a bank robber put up an ad saying "Heist at 9pm in Federal Way. Bring own tools. $100 fee to pay for gas and rental getaway van" wouldn't that be of help to tracking down perps?

Posted by Supreme Ruler Of The Universe http://_ on December 7, 2012 at 3:53 PM · Report this
@12 Oh, please. Why don't you go ask an overworked sweatshop employee how their working conditions are and then generalize their answer to all factory workers. That's a good use of evidence right there!

Yeah, legalization is not a panacea. I 100% agree with you there, and the Amsterdam situation is a good example of why it isn't sufficient. It is better than the alternative, though, where workers have no legal protection from harm. And just because some workers will still not feel safe going to the police, that doesn't mean it isn't worth it. Fuck, dude. The ethical response on this issue is not black and white.
Posted by sahara29 on December 7, 2012 at 4:20 PM · Report this
Big Sven 17
@12 for the win. King Co PA says *all* of the underage prostitutes they pick up are being pimped. All. Of. Them. Each high school girl a pimp lures into the trade is worth $1000 or more a night.

This is not two consenting adults and a private contractual arrangement. Fuck the traffickers.
Posted by Big Sven on December 7, 2012 at 4:27 PM · Report this
seandr 18
@12: most of the prostitutes are trafficked sex slaves

I don't think you have any expertise in this, and I think you're bullshitting. Source, please?

@17: King Co PA says *all* of the underage prostitutes they pick up are being pimped.

Right. If you ask anyone from any of the organizations that receive millions of dollars in budget to stop the scourge of human sex trafficking that is allegedly sweeping the nation, that's what they'll tell you.

And yet honest, non-hysterical attempts to study teen prostitution by those without a conflict of interest paint quite a different picture. Read this for more context, along with interesting interviews with the authors of the study about how their findings were received by those in the business of trafficking the idea of sex trafficking.

Not surprisingly, people from advocacy groups and law enforcement (and you, apparently) simply can't believe that a teen would willingly sell sex for money. (I mean, we've all seen Taxi Driver, right? We know how these things go down!) But teens willingly do short-sighted, risky, and impulsive things all the time. Sometimes, that includes selling sex.

I'm not saying pimping and so-called "trafficking" doesn't happen - sure it does. But the facts suggest the incidence rates are far eclipsed by the hype and hysteria.
Posted by seandr on December 7, 2012 at 6:28 PM · Report this
Matt Zimmerman is an attorney that works for the Electronic Frontier Foundation, a nonprofit legal advocacy group that represented the Internet Archive in this case. EFF isn't the plaintiff.
Posted by sf gal on December 7, 2012 at 8:59 PM · Report this
@8 - welcome to capitalism. Clearly, you are new here. Please repeat after me: Nothing is more important in America than money.
Posted by montex on December 7, 2012 at 10:22 PM · Report this
@18: And of course you link to a one-sided, much-criticized story from Village Voice Media, that totally unbiased source who a the time owned -- wait for it --
Posted by bigyaz on December 8, 2012 at 11:03 AM · Report this

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