Prosecutors Aim To Stop Sex Trafficking Without Breaking the Web
The online sex trade didn’t disappear when Craigslist got out of the game; it migrated to Backpage.com, a Craigslist clone then run by a publisher of alt-weekly newspapers. Soon after Craigslist’s action, a group of state attorneys general sent letters to Backpage’s executives asking it to get rid of the site’s ads for escorts, erotic massages, and other services often used as fronts for prostitution. They refused. In the ensuing years, the company successfully fended off multiple lawsuits and legislation trying to shut it down.
In a 2013 letter to Congress, Harris and other state AGs complained that federal law protecting websites from being held accountable for things their users posted inappropriately kept them from prosecuting Backpage for its role in the online sex trade. But their request to loosen restrictions on pursuing websites who facilitate human trafficking fell on deaf ears.
Last month, Harris took action. In cooperation with the Texas attorney general, she had the chief executive officer of Backpage, Carl Ferrer, arrested in the Houston airport and charged with pimping. Officers raided Ferrer’s home and Backpage’s offices in the Dallas area. Backpage’s co-founders, Michael Lacey and James Larkin, also turned themselves in on criminal conspiracy charges. It looked like Harris’s play at a coup de grace. The arrest took place just weeks before she was elected to the U.S. Senate on Nov. 8.
The criminal complaint against Ferrer identified nine unnamed minors who were allegedly sold for sex in California through listings on the site. “Backpage and its executives purposefully and unlawfully designed Backpage to be the world’s top online brothel,” said Harris in a statement. A spokesman for her campaign directed questions to the California Department of Justice, which declined to comment.
Backpage asked a court to dismiss the case, citing the 1996 Communications Decency Act, and saying the prosecution had provided no proof that Backpage’s business had been anything more than web publishing. “The only evidence presented in the papers suggest that Backpage was doing what it was supposed to be doing,” said Bob Corn-Revere, a lawyer for the company. On Wednesday, a judge agreed that the CDA barred the charges against the site, and tentatively agreed to dismiss the case, according to the Associated Press. The decision could be finalized at a hearing scheduled in Sacramento for Wednesday afternoon.
The suit tests the limits of a law that is a vital part of the business model of many major internet companies. Section 230 of the CDA says website operators can’t be held liable for content created by their users. It’s credited with allowing for the rise of Facebook, Google, and the broader world of social media and online marketplaces.
The CDA has been the subject of hundreds of lawsuits, often brought by people seeking to sue websites for defamatory content from users. Tech companies get nervous at the thought that they’d stop winning these fights. In regulatory filings, EBay has mentioned unforeseen shifts in the way the law is enforced as a risk factor investors should be aware of. John Doherty, the Sacramento-based general counsel for trade group TechNet, laughs nervously when asked what weakened CDA protections could mean. “Asking Internet service providers to monitor content could change the whole game — in a bad way,” he said. “You lose all the privacy and First Amendment rights.”
Doherty praises Harris for finding novel lines of attack on other Internet-based sex crimes like revenge porn. But this latest prosecution scares him. Like many people who support the CDA, Doherty picks his words carefully when discussing Backpage, a website he clearly wishes would just go away. “I understand the intent of the prosecution,” he said. “I am concerned about the unintended consequences.” Representatives from Facebook, Amazon, and Google declined to comment. eBay didn’t respond to an interview request.
Two other cases, in Massachusetts and in Washington State, allege that Backpage is a co-conspirator in an illegal prostitution business. In the Massachusetts case, the plaintiffs were held hostage by traffickers and raped as many as 12 times a day by men who responded to ads on Backpage.com, according to court documents. The company has prevailed so far, and the U.S. Supreme Court is considering whether to hear the case.
If none of these efforts stick, anti-trafficking groups say there’s likely to be a renewed push in change the Communications Decency Act itself. It would certainly face opposition. This week the Internet Association, a trade group whose members include most of the well-known Internet companies, sent a list of its policy priorities to President-elect Donald Trump. At the top of the list was the protections offered by CDA 230.
The Internet Association declined to comment directly on the Backpage case, but David Greene, civil liberties director at the Electronic Frontier Foundation, says the controversy over the site can’t be separated from the broader protections of the law. “The big picture view is that people aren’t out there defending Backpage. They’re out there defending the Internet as we know it,” he said. “You can’t only grant immunity to people you like.”
Lawyers have an old cliché: Hard cases make bad law. The maxim comes up often with Backpage. The company has its roots in New Times, a free weekly newspaper started in the early 1970s in the Phoenix area. The company eventually expanded to become a national chain of alt-weekly papers, and owned publications across the country. Backpage.com was New Times’s answer to Craigslist, the online classified agency that emerged as a fundamental threat to the business model of print journalism in the 1990s.
In 2012, New Times spun off Backpage into its own company after pressure from investors and advertisers. Ferrer took over in 2014. As of June 2015, the company’s 180 employees were mostly split between Dallas and Phoenix, and about two-thirds of them moderate ads submitted by users, according to a U.S. Senate report. Through his lawyer, Ferrer declined an interview request. The co-founders, Lacey and Larkin, issued a statement saying the case was a publicity stunt, arguing that Harris didn’t have the legal authority to bring the charges.
Backpage today looks a lot like Craigslist has looked since the 1990s. Unadorned lists of text ads advertise graphing calculators, apartment shares, and vaguely worded business opportunities in all caps. Upwards of 95 percent of its revenue comes from the commercial sex industry, according to court documents. The Senate found that Backpage had revenue of $135 million in 2014, indicating a five-fold growth in its revenue from the sex trade compared with three years earlier. It pegged the company’s value at about $620 million. Backpage is private, and has fought every attempt to provide more information about its operations.
To demonstrate how people actually use the site, a special agent for the California Department of Justice put up two listings last March, one purporting to be an ad for an escort, and another claiming to sell a couch. The agent said the listing for the escort prompted hundreds of inquiries. A single person called about the sofa.
The site looms large over what anti-trafficking groups say is a rapidly expanding market for child sex trafficking. The National Center for Missing and Exploited Children said in 2015 that there has been an increase of about 850 percent in suspected child sex trafficking because of the Internet, and that about 7 of every 10 reports it receives about child sex trafficking relates to Backpage.
The company’s lawyers say it has been a constructive partner for law enforcement. Backpage also argues that shutting down its own adult classifieds section wouldn’t end child exploitation.
These claims haven’t convinced prosecutors or anti-trafficking groups. For years, a multi-front legal battle over Backpage has played out at a dizzying pace. Backpage has enjoyed near-complete success in using the CDA as a defense, both in getting courts to dismiss lawsuits and to strike down state laws designed to punish it.
Plaintiffs in Massachusetts and Washington have argued that Backpage shouldn’t have protection under the CDA because it has designed policies specifically tailored to facilitate sex trafficking. They argue moderators change language on ads to avoid legally problematic language. When credit card companies refused to process payment for the company, it allegedly set up non-traditional payment methods to hide illegal activities. Backpage also removes location tags from photos that would help investigators find trafficking victims, according to the complaint.
In legal filings, Harris’s office argues that Ferrer can’t use the CDA as a defense because he set up several other websites displaying re-posted ads from Backpage.com that didn’t accept user postings, effectively creating new ads on his own. It also argues that Ferrer isn’t protected by the law because he had direct knowledge of the child trafficking on the site. In court filings, Backpage’s lawyers ridiculed the prosecution’s rationale. “The AG’s argument is illogical sophistry,” they wrote.
Similar charges have fallen flat multiple times. In March, Bruce Selya, a judge for the U.S. Court of Appeals for the First Circuit, practically apologized for siding with Backpage in the Massachusetts suit. The plaintiffs had made a convincing case that the site had been tailored to make trafficking easier, he said, but that didn’t matter. “Congress did not sound an uncertain trumpet when it enacted the CDA, and it chose to grant broad protections to internet publishers,” he wrote. “Showing that a website operates through a meretricious business model is not enough to strip away those protections.”
At some point, Backpage’s legality has to be seen as settled law, says Eric Goldman, a law professor at Santa Clara University. Perpetual legal action is, basically, harassment, argues Goldman. “If the AG can drive Backpage out of business by prosecuting its key executives, 230 will have failed,” he said.
Anti-trafficking groups are laying the groundwork for a change to the CDA itself. U.S. Senator Richard Blumenthal, a Democrat from Connecticut, came to Washington pledging to stop online trafficking. His staff has been exploring ways to address the CDA, and plans to introduce legislation at some point, according to two people familiar with the efforts who didn’t want to be named because the discussions are still nascent. A spokeswoman for his office declined to comment.
As a new senator, Harris could find herself immediately pulled into the debate. Her opinions on the shortcomings of the current law are a matter of public record. At the same time, a legislative battle over the CDA would inspire attention from some of her most powerful constituents.
Technology freedom advocates who reject prosecutors’s concerns out of hand are missing the point, said Samantha Vardaman, senior director of Shared Hope International, a group combatting sex trafficking. “It seems to be their view that it’s all or nothing, that if they give any of their protections away it all becomes subject to retraction. That’s not what we’re advocating for,” she said. “We all love our internet.”