Inside Story On The War On Backpage Raises All Sorts Of Legal Questions
from the well-isn't-that-interesting dept
Recently Wired had a pretty amazing cover article on the inside story on the DOJ’s legal war against Backpage that is superbly well-written and quite interesting. Wired found the perfect reporter for this in Christine Biederman, who was once a staff reporter at one of the many alt weeklies owned by Michael Lacey and James Larkin — the two owners of Backpage who are still facing federal charges over the site — as well as a former assistant US attorney at the DOJ. Biederman understands all of the issues here deeply and does a great job laying them all out. I highly recommend you set aside some time to read the whole article, which gives a great backgrounder on Lacey and Larkin, how they built up an alt-weekly empire, only to see it fizzle, while then building out Backpage as a massive success — and who now face criminal charges that raise all sorts of legal questions.
For this post, however, I did want to focus on some of the legal issues. We’ve discussed Backpage a lot over the years, including questioning whether what it did was truly illegal. No one denies that the site was absolutely used for some fairly horrible things — including sex trafficking. The questions, though, surround whether or not that’s Backpage’s responsibility — and whether or not in shutting down the site, law enforcement actually shut down a useful tool in tracking down actual traffickers, making the trafficking problem worse. Biederman’s piece also shows some of the moral panic around FOSTA, and raises questions about just how big the sex trafficking issue truly is and whether or not the government is abusing the civil asset forfeiture process to make it impossible for Lacey and Larkin to mount a defense. These are all topics that we’ve long covered on Techdirt.
Let’s start, though, with the legal attacks on the site, which began not with Backpage, but with a moral panic about the advertising on Craigslist — which was eventually pressured into shutting down its adult ads section (after FOSTA passed, Craigslist went even further and shut down its entire Personals section). Cook County, Illinois Sheriff Thomas Dart sued Craigslist in 2009, in a case that was tossed out just months later thanks to Section 230 of the CDA (Dart later was one of the most aggressive in going after Backpage). He’s quoted in the Wired article making no sense at all:
In early 2009, Thomas Dart, the sheriff of Cook County, Illinois, sued Craigslist for facilitating prostitution. ?Missing children, runaways, abused women, and women trafficked in from foreign countries are routinely forced to have sex with strangers because they?re being pimped on Craigslist,? he said. ?I could make arrests off Craigslist 24 hours a day, but to what end? I?m trying to go up the ladder.?
But suing Craigslist (or Backpage) is not “going up the ladder” at all. It’s burying the ladder and everything around it. Both Craigslist and Backpage were active in helping law enforcement track down actual sex traffickers who were using their site. Shutting down the platforms has only served to make it more difficult for law enforcement to track down traffickers, because they’re now much harder to find. At the same time, the evidence shows that shutting down these sites has also resulted in an increase in murdered women.
The article also details how far Backpage went to actually be responsive to law enforcement’s concerns and to help stop sex trafficking on the site:
On October 18, Backpage announced on its blog that it had retained Hemanshu Nigam, a former federal prosecutor who specialized in sex crimes and child abuse, to develop a ?holistic? safety program. Nigam sat on the board of the National Center for Missing and Exploited Children and had done similar work for Myspace. In the months that followed, Nigam and his new clients met repeatedly with representatives from anti-trafficking organizations. They discussed changes to Backpage?s site architecture, moderation practices, and content policies. The organizations suggested, for instance, that users should be prevented from employing search terms such as ?incest? or ?Lolita,? since these might ?indicate illegal activity.? Backpage moderators, meanwhile, should be on the lookout for ?ads written from masculine perspective,? particularly if they employed the euphemism ?new in town,? which ?is often used by pimps who shuttle children to locations where they do not know anyone and cannot get help.?
By late January 2011, Backpage had implemented many of the recommendations: It had banned photographs with nudity, drawn up a list of ?inappropriate terms,? beefed up its vetting process, and begun referring ?ads containing possible minors? directly to Allen?s staff. Ferrer also worked closely with the authorities. According to a Justice Department memo from 2012, ?unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.? A later memo noted that ?even Ernie Allen believed that Backpage was genuinely trying to rid its site of juvenile sex trafficking.?
However, as the article details, the more Backpage did, the more law enforcement demanded of them — often pulling the exact same trick that many have pulled, conflating consensual sex work with sex trafficking.
And that actually turns out to be a big issue. Many people wondered why the feds “took so long” to go after Backpage, and it turns out that a big part of the reason is that there wasn’t enough evidence of actual sex trafficking (a federal crime, which is not protected by Section 230) — just prostitution, which is not a federal crime.
State Attorneys General weren?t the only prosecutors itching to get in on the action. The Feds were too, but they had a problem: They couldn?t identify a viable crime. Prostitution wasn?t a federal offense, and they didn?t seem to think they could make sex-trafficking charges stick. Back in 2011, the Justice Department had quietly opened a grand jury investigation into Backpage in Washington state; according to an internal memo, prosecutors interviewed more than a dozen witnesses and subpoenaed more than 100,000 documents but ultimately decided that ?a successful criminal prosecution of Backpage is unlikely.? They thought about trying to make a case under the Travel Act but, as they noted, that theory ?had never been litigated in a similar context.?
Instead… they went with another approach that we’ve talked about here a lot: civil asset forfeiture:
So they formulated another potential plan of attack. ?Moving forward,? they wrote, the Justice Department should ?take a hard look at bringing this case as a civil forfeiture case,? with its ?lower standard of proof.? In this scenario, the government would seize a website operator?s assets and property, then force them to prove they weren?t implicated in criminal activity.
The government first tested this theory against a few smaller sites.
In June 2014 the Justice Department put this plan into action. It seized myRedBook and demanded that the site?s owner, Eric ?Red? Omuro, forfeit $5 million in cash and property. The following summer, the Department of Homeland Security launched a similar raid against ?the nation?s largest online male-escort service,? Rentboy, and its owner, Jeffrey Hurant.
At the time, we noted that these cases raised significant legal questions, because they seemed to go against Supreme Court precedent regarding the seizure of expressive materials. However, with the feds taking all their assets and threatening huge jail terms, you’ll never guess what happened next:
Both men pleaded guilty to violations of the Travel Act in exchange for lighter sentences and lesser fines. The forfeiture approach seemed to be working.
So, even though these cases “raise all kinds of thorny constitutional questions,” those questions never have a chance to get answered:
The asset freezes raise all kinds of thorny constitutional questions. Generally speaking, federal prosecutors are permitted to freeze a defendant?s assets based on probable cause alone, even before the defendant has a chance to challenge the government?s case in court. But regular forfeiture rules do not apply in cases involving forums for speech?newspapers, films, books, magazines, websites. The US Supreme Court has decreed that when the government seizes these expressive materials, or the proceeds derived from them, it must immediately hold an evidentiary hearing to determine whether the seizure is valid.
And that’s also the approach the feds have taken against Backpage. But on steroids. The feds have designed it so that it has Larkin and Lacey fighting the case on two fronts: the asset seizures in one court, and the criminal charges in another:
But the Backpage defendants have a problem: So far, they can?t get a court to hear their claims. Since last summer, the Justice Department appears to have been playing a clever shell game. They?ve brought cases against the Backpage defendants in two federal districts?civil seizures in Los Angeles, criminal matters in Phoenix?and they?re making the defendants spend what money they have left chasing Uncle Sam from place to place. So far, judges in both districts have agreed with the government?s suggestion that they should defer to each other, effectively denying the defendants a forum to challenge the asset freezes. The US Court of Appeals for the Ninth Circuit will hear arguments in the case in July.
As a lawyer in the article notes, this appears to be the DOJ doing “an end run around the First Amendment.”
Even if you think Larkin and Lacey are awful people (and the article is not at all sympathetic in its portrayal of the two men), if the First Amendment and due process matter to you, the details here also matter significantly.
Indeed, the article notes that using the Travel Act in combination with civil seizures and forfeiture seems to be an end run around Section 230:
Even if Fosta-Sesta is one day ruled unconstitutional, as many legal scholars expect, government officials have shown that they?re willing to subvert Section 230 in other ways. If Lacey and Larkin lose?if the asset seizures stand and the Travel Act charges stick?prosecutors will have a valuable new weapon to wield against Silicon Valley.
This entire approach has been a dangerous disaster. And, again, that applies even if you hate Backpage, Larkin, Lacey and everything they stand for. There are really serious due process and free speech issues here — not to mention all of the evidence that taking down the site has put more people at risk and was based almost entirely on made up stats.
The article is quite clear that Backpage did some sketchy stuff — but it also was pretty clear that it tried to stop sex trafficking and the legal attack on them is highly questionable on a variety of levels. It’s easy to write off Backpage as a “bad actor” — it may well be that. But the most difficult (and often most important) cases, often involve bad actors. And those situations set precedents for everyone else — and after reading Biederman’s article, I’m more concerned than before about the nature of the DOJ’s prosecution.