Fighting a Losing Battle to Win the War: Can States Combat Domestic Minor Sex Trafficking Despite CDA Preemption?

The explosion of the internet and online communication has led to an alarming increase in an existing epidemic: domestic minor sex trafficking. Sex traffickers utilize websites, such as Backpage.com, to post trafficking advertisements depicting minors, which are minimally regulated as a result of the civil immunity provision of the Communications Decency Act (47 U.S.C. § 230). This immunity provision has been interpreted broadly by the courts, granting expansive immunity to websites as both publishers and distributors of content. In an effort to combat minor sex trafficking at a local level, some state legislatures enacted statutes criminalizing the knowing publication of online commercial sex advertisements depicting minors. Backpage.com challenged these statutes in district courts with great success. Because these statutes could hold websites liable for the publication of third-party content, the courts enjoined the laws as preempted by the Communications Decency Act. Thus, preemption places the states in a lose-lose situation: states can enact legislation knowing that the legislation will likely be enjoined or attempt to litigate against websites with little promise for success. This Note argues that courts should narrow the scope of § 230’s immunity given changes in technology and the increase in offensive and illegal content online. This Note also argues for the enactment of a new federal criminal statute, in place of individual state legislation, which would put liability back in the right hands and avoid preemption, while reducing domestic minor sex trafficking online