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.

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Comments on “Inside Story On The War On Backpage Raises All Sorts Of Legal Questions”

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That One Guy (profile) says:

'I don't get it, why do none of the sites trust us?'

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.”

And after all that what did their bending over backwards get them? Shut down, their property stolen, and the government playing keep-away in what is likely an attempt to force them to accept a plea deal by draining what resources they have left.

With ‘repayment’ like that, not to mention FOSTA making knowledge a liability sites these days would have to be utterly insane to work with law enforcement on anything, and are much better off refusing anything short of a legally binding court order forcing assistance(and fighting it if possible), only doing exactly what they have to, as doing more not only won’t save a site if the government wants to score some easy PR but will potentially open a site up to problems thanks to displaying knowledge of what their site’s being used for.

So congrats you badge’d buffoons, in your eagerness to add another notch to your successful prosecutions list you’ve shown that you’re not to be trusted to act honestly, that working with law enforcement is no guarantee that they won’t turn on you the second it’s beneficial for them to do so, and all but guaranteed that any offers of assistance will completely dry up as those running sites turn into deaf, blind mutes.

Anonymous Coward says:

Re: 'I don't get it, why do none of the sites trust us?'

"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"

Not much sense in blaming the law for doing what the public demanded

At least we don’t need to worry about moral panic regarding twitter, yotube, facebook etc…They are only going after people I don’t like. Also, they are bending to our whining, instead of telling us to go to another site more to our liking, nor are they telling us to create a competing platform.

Get the pimps and nazis out of site&sight so we can forget about them, again.

Hackney Ed Bathos says:

You can slant legalisms but clearly don't oppose prostitution.

When you start from that society-destroying premise, you are certain to oppose any and all efforts in the area.

By the way, I read EVERY word of what you re-write from, I bet before you did!

You may not know this, but lawyers are trained to fling up every objection that they can think of.

And when do it in before a jury of people who are ordinary and want decency, it’s near certain to backfire.

But it’s not unConstitutional nor moral panic to go after open prostitution with every legal means that gov’t lawyers can think of, too.

Now, legal challenges will go on so long as money holds out. They may even get the anti-American Nazi-defending ACLU to kick in.

You complain even about the Sheriff. These problems must and should be addressed federally because only way to cut off the problem at source.

It’s no coincidence that Techdirt wants to stop The War On Drugs, legalize prostitution, advocates downloaders of child porn getting off on a mere Court Rule, advocates unlimited immigration (and no doubt giving them free health care too, though yet to come up), besides your rabid corporatism. — In EVERY area, Masnick / Techdirt is against ordinary America.

Anonymous Coward says:

Re: You can slant legalisms but clearly don't oppose prostitutio

The War on Drugs is bullshit, prostitution and sex work in general should be decriminalized, even child porn creators/distributors have civil rights, [citation needed], and you’re more than happy to kiss a corporation’s ass when they use copyright to censor someone so you’re the last person to talk about "corporatism" as if it’s a bad thing.

Gary (profile) says:

Re: You can slant legalisms but clearly don't oppose prostitutio

By the way, I read EVERY word

All 1300 posts, THANK YOU!!

Ignored every single one, but cowards who love their corporate masters will run when challenged.

A1 people (or so the nazi’s call white males) will back you up with unwritten laws, eh mate?

Press on, repeat the same absurdities. I am out for the nite, Ta ta!

Darkness Of Course (profile) says:

But you're talking about sex ...

With god knows who.

The only downside is the 1st Amendment, dead hookers, not being able to find sex trafficers, and end run of 230.

The upside is great though, get fancy write ups in magazines, press for eventual Senate run, and get to keep all the stolen assets.

I mean, forfeiture. From crimes. Their crimes. The dead hookers, they were criminals so no biggie.

Anonymous Coward says:

Re: Re: Re:2 Same can be said of the Dotcom fiasco

Yes. That’s how the legal system has always worked, businesses that operate in country x must comply with the laws of country x. The safety/environmental department of BP operates differently depending on whether it is operating in Britain, the US, Egypt, or Indonesia because the laws of each country have different requirements. Internet companies mostly do so by creating a country x specific domain (,,, etc.) and limiting what is available in that country’s domain based on the legal framework in that country.

Extradition of executives is relatively rare, for both political reasons and because most violations committed by companies are civil violations for which the company is liable. Since 1) it is uncommon that civil violations are covered under extradition treaties in the first place and 2)individual executives who are not personally liable can’t be extradited anyway, this kind of extradition is quite rare.

PaulT (profile) says:

Re: Re: Re:3 Same can be said of the Dotcom fiasco

The problem isn’t that Dotcom was being extradited (which he still hasn’t been, I believe). The problem was that his business and assets were seized before any kind of charge had taken in his resident country – in a manner that’s unheard of either in New Zealand or for the kind of crime of which he was accused. Plus, the seizure included assets that would be vital for him to launch any kind of defence against any charges eventually heard in court.

Whichever way you want to spin it, a foreign country took all his rights and possessions before he was even charged with a crime in the country in which he lives. That’s a dangerous precedent, even if you believe he deserves to be convicted of a crime – he hasn’t and it’s unlikely he’ll received anything resembling a free trial once he is extradited.

That One Guy (profile) says:

Re: Re: Re:4 'Only guilty people assert their innocence'

You left out the best part. Not only did the government seize/steal every asset they could get their hands on, they argued(and a judge agreed) that the fact that he was exercising a legal right(fighting extradition) was evidence that he was guilty and used that as justification to keep his assets.

They not only robbed him blind, they used the fact that he has a working brain and didn’t want to go to a country that all the evidence made clear would not give him a fair trial against him.

Anonymous Coward says:

Re: Re: Re:5 'Only guilty people assert their innocence'

Nah, personally the best part was where the US government had no warrant for the SWAT raid, and the NZ government admitted to illegally spying on Dotcom in the buildup to 2012, and the US judge admitted that this collection of fuck-ups would make it "impossible" for a case to be brought forward…

Then shrugged his shoulders and pushed the case forward anyway, government procedures be damned.

It’s a demonstration of "how often and how spectacularly can we take a dump on this unpopular, unlikeable fatass?" using the best taxpayer’s money one can buy.

Christenson says:

Damn, I pay taxes for THIS????

Those guys have one heck of a strong due process and excessive fines argument, what with being prosecuted in two separate federal districts. Hopefully 9th sees that, tells gubmnt to return the assets.

And Mike, time for an update on Kim DotCom, another travesty!

And as for you "normal americans", well, you seem awful glad to give the government excuses for abuses — that ties Techdirt together — but I don’t see you going after CORPORATE drug pushers, like Purdue Pharma and the Sackler family.

Yes, I realize things aren’t like they were when you were a kid, the world has changed, and most of us have figured out that these changes you decry are why we are doing as well as we are and not much worse.

Anonymous Coward says:

Re: Damn, I pay taxes for THIS????

"most of us have figured out that these changes you decry are why we are doing as well as we are and not much worse."

You figured that out all by yourself huh. Which changes are you referring to exactly and how do they benefit society?

How are normal americans supposed to go after multinational corporations? Are you attempting to gaslight the american public? Join the crowd, many others have been at it for some time.

Christenson says:

Re: Re: Damn, I pay taxes for THIS????

Changes I was thinking about (and maybe I am just optimistic):
Diversity of all kinds being recognized as a good thing. Think Gay Marriage. Think about racism being generally publicly unacceptable. Think about the places that have legalized Marijuana. What was that nice ruling about scandalous Trademarks being unacceptable??? What was that #metoo movement???
Much lower friction with the acquisition of tools and things, and everyone has a computer in their pocket.
Cops getting called out for their brutality and murders (When I was a kid, there were rumors…now there’s video!)
Even my relatively low-paid assemblers were able to take things like international cruises.

That Anonymous Coward (profile) says:

When you consider all the of the completely questionable prosecutions & courts going stupid b/c the ends justify the means… they STILL had to cheat this much.

B/C the law of unintended consequences still hasn’t made an impression on these mammalian brains…
The government helped to finance the creation of the internet, with accountability only decided by the depth of the pockets doesn’t this mean they should shut themselves down depriving them of assets to fight the claims that they pimped out a child they never met or saw??

Rocky says:

Re: Bad Government Actions are the Worst

"When bad things happen to bad people, that’s good," is a deeply flawed but unfortunately popular logical fallacy.

It’s usually uttered by the same type of people who thinks collateral damage affecting innocents is fine as long as you get the bad people.

Thad (profile) says:

Re: Juicy info, maybe?

Nah. The pushback against Backpage has been bipartisan and has come from multiple states and the federal government.

There’s no need for a conspiracy theory here. Backpage is an easy target regardless of jurisdiction or political party.

That’s not to say the president doesn’t have ties to sex traffickers, mind. Here’s a "fun" headline: The one weird court case linking Trump, Clinton, and a billionaire pedophile

But that’s unrelated to Backpage. And as it happens, the trafficker/pedophile in question, Jeffrey Epstein, got much better treatment from the DOJ than Lacey and Larkin have.

Beefheart666 (profile) says:

Winds of War

I would encourage anyone with an interest in this case to watch the recent Reason documentary on Lacey, Larkin and Backpage, "The War on Is a War on Sex Workers." About 40 minutes long, but well worth your time. ( apparently was doing the same thing as Craigslist, but Backpage refused to genuflect to the politicians and that was its downfall. Now all of Silicon Valley it seems wants to roll over for the feds. The proper stance is the one Lacey and Larkin have taken — the extended middle finger. Who are the feds to tell people what they can and cannot read or publish? And why are there so many in the tech world (techdirt excepted, natch) who are willing to allow the government such power? If Lacey and Larkin lose, there is no one, no matter how wealthy, who will be exempt from this sort of bullying. They are courageous men who are fighting for their lives right now. And if they win, we all win.

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