Targeting a Provision of the Common Decency Act, Karen Chesley L’09 Helped Put Sex Traffickers on the Run

2018 was a catastrophic year for American sex traffickers. In February, the FBI took down a major advertiser of online sex trafficking, and Congress passed sweeping legislation against the crime. In April, then-President Donald Trump signed the bills into law. The website Backpage.com ran a wide variety of classified ads, but reports showed the site’s cash cow was involvement with human sex trafficking, particularly of children. Backpage, reportedly, was involved in a large percentage of the country’s sex trafficking. In a direct response to those revelations, Congress enacted the Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA). The new legislation made websites liable for knowingly facilitating sex trafficking.

“It really shut down the incentive for there to be a Backpage 2.0,” said Karen Chesley L’09, who had a direct hand in the victories against American sex trafficking as a pro bono attorney for Legal Momentum.

She recalls a feeling of horror when she discovered the prevalence of human sex trafficking — particularly of children — in the United States.

“I had no idea this was happening,” said Chesley, who recently joined The New York Times as litigation counsel.

Starting in 2016, Legal Momentum (formerly NOW Legal Defense and Education Fund), which is the country’s oldest legal advocacy group for women, embarked on a sweeping effort to take down Backpage and pressure Congress to enact legislation. Chesley was a partner at Boies Schiller Flexner LLP when she joined forces with Legal Momentum on a pro bono basis. At the time, Backpage made the vast majority of its money from online sex ads.

The crux of the issue was Section 230 of the Common Decency Act, which holds that a website cannot be liable for content posted by third parties. Chesley had always considered herself a free-speech advocate. She fondly remembers Seth Kreimer, Kenneth W. Gemmill Professor of Law, teaching Section 230.

“It’s an amazing law that basically lets the modern Internet flourish,” she said. “You can’t have Trip Advisor or Yelp if you don’t have Section 230.”

Backpage was making about $135 million per year in profits from sex ads, many of which were for trafficking victims, according to a 2017 report from the U.S. Senate. Around that time, more than 70 percent of all child trafficking reports from the National Center for Missing and Exploited Children were linked to the website. In 2015, the Florida Department of Children and Families reported 1,892 cases of human trafficking. Plaintiffs who brought civil cases against the website in 2011 and 2016 lost on grounds of protection from Section 230.

“I just never had envisioned the law being used to protect people that were knowingly running ads selling children for sex,” Chesley said. “I didn’t contemplate that would be possible.”

That’s where her work with Legal Momentum came in.

“So the question was, what do we do now? Civil litigation is not working,” she said. Chesley helped develop a multi-pronged effort focusing on litigation, media, and legislation.

“Our strategy was to represent new plaintiffs, work with women’s rights and survivor organizations, and also to push Congress behind the scenes.”

Chesley was part of the legal team that filed a lawsuit on behalf of two Florida sex trafficking victims, an adult who was kidnapped and held in a hotel room and a 15-year-old girl. About the same time, the U.S. Senate issued two lengthy reports on the matter that included 840 pages of emails and other documents between the men running Backpage.

The emails were a game-changer because they showed Backpage had filtered and edited ads for sex trafficking to make them appear more innocuous. Shaping content from third parties was not necessarily protected by Section 230. Instead of following precedent, the court held that Section 230 did not bar the plaintiffs’ claims from going forward. The federal government then brought criminal charges against the leaders of Backpage and the company itself.

“The criminal case is ongoing,” Chesley said, noting that COVID-19 has caused slowdowns in the process.

She has continued in a similar vein with pro bono work and helped file an amicus brief on behalf of a woman accused of killing her sex trafficker. A law is in place defending such action, but initially, a judge did not allow it. “We just won an appeal from the intermediate appellate court,” she said.

With her new role at The New York Times, she no longer works with Legal Momentum but continues as a board member of New York Lawyers for the Public Interest. She’s also proud of the strides made in the past few years against sex trafficking.

“We’ve definitely made it harder to buy and sell children for sex online,” she said. “I think that is a victory.”