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The GC of Village Voice Media Walks a Legal Tightrope
General counsel Elizabeth McDougall, of Village Voice Media Holdings, has heard all those names and more, for her defense of the company's classified ad website, Backpage.com, and its adult ads. Attorney General Rob McKenna of Washington State has publicly assailed McDougall for, in his view, promoting the exploitation of children on the website because some advertisers secretly use child prostitutes.
But what most people don't know, and McKenna won't accept, is that McDougall is just as passionate as McKenna when it comes to combating human trafficking of children. She just believes her methods can be more successful than McKenna's shut-'em-down and drive-'em-underground tactics. Shutting down an online service, McDougall says, "doesn't eliminate or even minimize human traffickingthe problem just migrates elsewhere. The benefit of it being online is that you can see it, track it, rescue the victims, gather evidence, and arrest perpetrators."
She speaks from experience. As a successful partner in the Seattle law firm of Perkins Coie until last February, McDougall handled some corporate cyber crime cases and did pro bono work for child advocacy groups, including the Demi and Ashton Foundation, cofounded by actors Demi Moore and Ashton Kutcher in an effort to end child sex slavery. It was at this foundation that McDougall joined a technology working group, along with representatives from several high-tech companies, to find a way to attack the child trafficking problem.
In 2010, the website Craigslist hired her as outside counsel to defend against legal attacks on its adult services ads. She appeared before a congressional committee, trying to explain that her client was an ally in the fight against child exploitation. But Craigslist finally succumbed to public pressure and dropped the ads. The advertisers did what McDougall (and others) had predictedthey went elsewhere, including to Backpage.com. Worse, some of them went to offshore sites and servers, where U.S. law enforcement can't reach them.
Then, last February, Village Voice offered McDougall, 46, its general counsel job, with a mission to defend Backpage.com and its ads. McDougall says she was reluctant at first, but the company offered her whatever technology she needed to work with law enforcement on tracking exploiters of children and rescuing the victims. It was an opportunity she says she couldn't turn down. She knew her decision to take the job would be, to say the least, controversial. What made her decision wrenching was her concern about what her 10-year-old son and 16-year-old daughter would think when they heard their mother being attacked for defending sex ads. It was, she says, "one of the most challenging decisions of my life."
But she didn't realize how ferocious the reaction would be to her new role. McKenna, who is running as the Republican candidate for governor of Washington, organized a group of state attorneys general to seek new laws in an attempt to force the ads off Backpage.com. He personally attacked her on his website and in the media, saying that the ads make millions of dollars a month for her company.
And the pressure grew. In September, Village Voice announced that it was selling off its print media, including The Village Voice in New York and SF Weekly and LA Weekly in California, in order to distance the newspapers from the website's controversy. Print advertisers were pulling their newspaper business after Nichols Kristof of The New York Times criticized Village Voice in a column earlier this year, TV commentator Anderson Cooper criticized the company in general and McDougall in particular, and the investment bank Goldman Sachs sold its shares in the company.
One especially vocal critic is Andrea Powell, who heads a nonprofit service group called FAIR Girls that helps female survivors of sex trafficking. Powell says that online sex ads have nearly doubled in the past year, despite the closing of the Craigslist site. The Internet is "creating such a huge marketplace that law enforcement and others can't keep up with it," Powell says.
But McDougall's most prominent critic is McKenna. As president of the National Association of Attorneys General, McKenna made the issue the centerpiece of his agenda. Nearly every U.S. attorney general signed a letter demanding that Backpage shut down its sex services ads. The lone exception was Wisconsin's attorney general, J.B. Van Hollen, who refused. "If we felt the letter would have a significant and actual impact on human trafficking and crimes against children, we would've signed it," he explained.
McDougall isn't fazed by McKenna. She knows she has strong support from many experts in the field. One is Danah Boyd, a research associate at Harvard University's Berkman Center for Internet and Society, who urges advocates not to drive perpetrators offshore. Another is Mark Latonero, research director at the University of Southern California's Annenberg Center on Communication Leadership and Policy. Latonero's writings urge law enforcement to leverage the technology to help victims. He suggests that online tools "such as data mining, mapping, and advanced analytics be used . . . to further antitrafficking goals."
That is exactly what McDougall contends that her company is trying to do. Backpage's technology and referrals to law enforcement and to the National Center for Missing and Exploited Children have led to numerous rescues, she says. She ticks off examples. "There was one in January and another in March in Washington. February in Maryland, April in Atlantaall over the country, really," she says.
She also counts some law enforcement officers on her side. One is inspector Vince Repetto of the San Francisco police department's special victims unit. When Craigslist closed down its sex ads, Repetto says, an offshore site became the dominant one in San Francisco, making gathering evidence and prosecuting anyone much more difficult.
Repetto fears that the pressure will simply drive the sites underground. The exploitation will still be there, he says, but it won't receive the attention anymoreor the resources needed to fight it. As for McKenna and the state AGs, Repetto thinks "they are just having a knee-jerk reaction to an age-old problem."
But McKenna and Washington State lawmakers disagree. They passed a new state law making it a crime to publish online any "implicit" offer of sex with a minor, even if the publisher doesn't know the sex is implicit or that the offer involves a minor. McDougall and her company sued and blocked the law's start-up, which was to have occurred on June 7. In granting the injunction, U.S. District Judge Ricardo Martinez in Seattle stated that Backpage.com had shown "a likelihood of success on its claims . . . as well as irreparable harm." The rest of the suit seeking to overturn the law is pending.
The suit attacks the law on three fronts. First, the federal Communications Decency Act prohibits treating online service providers as the "publisher or speaker" of third partygenerated content. Second, the suit claims that the law violates the First and Fifth Amendments of the U.S. Constitution, and is so broad that it would include online sites like Facebook, Twitter, and others. Finally, it argues that the law violates the Constitution's interstate commerce clause by attempting to regulate conduct that occurs outside the state of Washington.
Several experts agree with these arguments. Matt Zimmerman, senior staff attorney at the nonprofit Electronic Frontier Foundation in San Francisco, which has filed an intervening motion and complaint to block the law, calls it a misguided attempt to circumvent the First Amendment. Even Andrea Powell, of FAIR Girls, admits that the new law isn't a "perfect solution." But, Powell adds, "it's a step in the right direction." If it were up to her, Powell would eliminate the Backpage website entirely. "Arguing to leave the site open is the same as saying we should keep brothels open so law enforcement can go there and find victims," she says.
McDougall strongly disagrees. Shutting down a website is not the answer, she argues. "This is not a Backpage problem," she says. "It's an Internet problem, and it's a societal problem." And she believes that it will take a concerted effort of law enforcement, advocacy groups, online companies, and others to find a solution.
For her part, McDougall has no regrets. Especially after returning from a recent business trip, where once again she was battered for defending the ads. But something more important happened when she got home. "My daughter hugged me, and told me she was so proud of me," McDougall says.