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Building a strong criminal defense case under the Communications Decency Act, P.2

Last time, we began looking at the Communications Decency Act and the immunity it offers to website owners whose pages are used to engage in human trafficking and other crimes. As we noted, the federal law does currently protect website owners from the illegal activities or communications of website users, but immunity doesn’t apply when the website owner violates federal law.

Federal law regarding aiding and abetting criminal activities is an interesting issue to consider in this context. The line between aiding and abetting illegal activity on a website and simply hosting a website for users can be fine, though it can also be very clear, depending on the intent of the defendant. 

Under federal law, there are four elements to the crime of aiding and abetting: (1) specific intent to facilitate the commission of a crime; (2) criminal intent matching that required by the underlying offense; (3) assistance or participation in the offense; and (4) commission of the offense by another. To be convicted of aiding and abetting, a defendant would have to know of the plan to commit a crime and facilitate the commission of the crime with intent that the crime is committed.

Backpage.com, the website that is largely behind the effort to remove immunity under the CDA, has been able to avoid aiding and abetting liability for illegal advertisements it hosts on the grounds that it has not acted with specific intent to assist in human trafficking. Even if companies like Backpage.com do structure their websites to increase profits in such a way as to indirectly promote human trafficking or other crimes, this does not amount to aiding and abetting those crimes.

The law is fairly clear, then, at this point. It remains to be seen what will become of companies like Backpage.com if the law is changed to remove immunity under the CDA. Whatever the case may be, those who are targeted for criminal activity on charges of aiding and abetting should always work with experienced legal counsel to build the strongest possible case.

Source: Office of the United States Attorneys, Criminal Resource Manual: Elements of Aiding and Abetting, Accessed August 21, 2017. 

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