New Government Documents Reveal That Backpage Was Actively Helping Law Enforcement Track Down Traffickers

from the oh,-look-at-that dept

For many years, we’ve pointed out that for all the salacious stories and claims about how Backpage.com was somehow supporting and facilitating sex trafficking, the site was actually an amazing tool for finding, arresting, and convicting sex traffickers. Earlier this year, we wrote about a very detailed piece in Wired that highlighted just how far Backpage went in helping law enforcement stop sex trafficking:

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.?

Where things got more heated was when law enforcement wanted to go after Backpage for consensual sex, rather than trafficking. But, because it was convenient, politicians, law enforcement, and the media kept up the charade that Backpage and its founders were deliberately supporting sex trafficking. However, as a new article at Reason by Elizabeth Nolan Brown makes clear, the government knew all along that Backpage was one of its best partners in stopping sex trafficking. Some new documents have come out as part of the ongoing lawsuit against Backpage and its founders by the feds that kind of undermine the entire narrative about Backpage.

The memo?subject: “Backpage.com Investigation”?reveals that six years before Backpage leaders were indicted on federal criminal charges, prosecutors had already begun building a “child sex trafficking” case against the company. But this case was hampered by the fact that Backpage kept trying to help stop sex trafficking.

“Information provided to us by (FBI Agent Steve) Vienneau and other members of the Innocence Lost Task Force confirm that, 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,” wrote Catherine Crisham and Aravind Swaminathan, both assistant U.S. attorneys for the Western District of Washington, in the April 3 memo to Jenny Durkan, now mayor of Seattle and then head federal prosecutor for the district. Vienneau told prosecutors that “on many occasions,” Backpage staff proactively sent him “advertisements that appear to contain pictures of juveniles” and that the company was “very cooperative at removing these advertisements at law enforcement’s request.”

“Even without a subpoena, in exigent circumstances such as a child rescue situation, Backpage will provide the maximum information and assistance permitted under the law,” wrote Crisham and Swaminathan.

You might notice that one of those quotes above was included in that Wired piece I quoted earlier. However, as Nolan Brown notes, these and another memo were “accidentally” revealed to Backpage’s defense lawyers, but then the judge sealed them and ruled them off-limits for the defense, despite their exculpatory nature.

Backpage lawyers in the criminal case have been barred from using the memos as part of their clients’ defense. The previous judge handling the case (who recused himself) agreed with the prosecution that the memos, which had been filed under seal in the Western District of Washington, must remain sealed and that the defense must destroy its copies.

At an August 19 hearing, Judge Susan M. Brnovich ruled that they will stay that way. But Brnovich denied the state’s request to sanction defendants over quotes from the memos appearing in the June Wired story.

At the hearing, lawyers for defendants had pointed out that there were months when the memos were not under seal and that many people had viewed or had access to them both before and during that time. In issuing her order, Brnovich agreed that the memos had “clearly been distributed to many people,” including “other people that the government was working with,” and said any suggestion Backpage defendants or lawyers had supplied the memos to Wired was pure “speculation.

As Reason points out, multiple attempts to pull together trafficking charges against Backpage fell down as investigators realized that Backpage was actually on their side on these things, and there was no evidence of Backpage actually supporting trafficking.

Over the next year, their office would undertake a large investigation into Backpage’s internal processes and potential criminality.

This included a “preliminary review of more than 100,000 documents,” subpoena responses “from more than a dozen entities and individuals,” interviews with around a dozen witnesses, and “extended grand jury testimony from an additional six witnesses,” mainly Backpage employees. Still, it failed to produce “the kind of smoking gun admissions which we had hoped would propel this investigation to indictment,” wrote Swaminathan and another assistant U.S. attorney, John T. McNeil, in a January 2013 memo.

[….]

“At the outset of this investigation, it was anticipated that we would find evidence of candid discussions among [Backpage] principals about the use of the site for juvenile prostitution which could be used as admissions of criminal conduct,” wrote McNeil and Swaminathan in their 2013 update. “It was also anticipated that we would find numerous instances where Backpage learned that at site user was a juvenile prostitute and Backpage callously continued to post advertisements for her. To date, the investigation has revealed neither.”

They recommended that bringing criminal charges would be unwise.

This seems notable, and seems to explain why it took so long for the feds to move against Backpage. Remember, that despite all the rhetoric around Section 230, federal criminal laws are exempt from 230, and if the feds actually had evidence of Backpage engaging in sex trafficking, the DOJ could have taken the site down at any time.

The Reason article goes into great detail, often contrasting public statements about Backpage with what was happening behind the scenes, while also showing how those who had decided, unequivocally, that Backpage was evil, would twist any step it made to stop sex trafficking as evidence that it was facilitating sex trafficking.

Since the time when the memos were first drafted, officials have figured out ways to frame any positive parts of Backpage operations into legal liabilities and points of public horror. The meetings with NCMEC and the efforts to help police? Proof that Backpage knew of the problem. Preventing explicit offers of sex for money? The Senate said that was just Backpage wanting to “conceal the true nature” of ads. Filtering out open-to-interpretation words? Banning underage ads? Same, said the senators. Their report portrayed the fact that Backpage used moderation at all as some sort of seedy ploy.

Requiring card payments for adult ads?as NAAG suggested, since cards can be traced?was spun as a deliberate effort to profit off exploitation. Accepting bitcoin after Dart threatened card companies? Evidence of subterfuge. Accepting checks after the Dart harassment? That let prosecutors tie specific ad buys to real identities and transactions, thus helping them fulfill a previously-lacking element necessary for money laundering charges.

In effect, everything the company did to enhance protection and legality was twisted into evidence of criminality and moral failure. And, for years, folks have promoted these topsy-turvy explanations.

Yet, as the memos show over and over again, the feds who were investigating Backpage simply could not make a case against the company, since it was so eager to help to stop sex trafficking.

In 2012, Crisham and Swaminathan seemed impressed by how cooperative Backpage was with police and other members of law enforcement. Backpage data offer “a goldmine of information for investigators,” they noted. In general, staff would respond to subpoenas within the same day; “with respect to any child exploitation investigation, Backpage often provides records within the hour.” Staff regularly provided “live testimony at trial to authenticate the evidence against defendants who have utilized Backpage,” and the company held seminars for law enforcement on how to best work with Backpage staff and records.

“Witnesses have consistently testified that Backpage was making substantial efforts to prevent criminal conduct on its site, that it was coordinating efforts with law enforcement agencies and NCMEC [the National Center for Missing and Exploited Children], and that it was conducting its businesses in accordance with legal advice,” wrote Swaminathan and McNeil in 2013. Furthermore, they noted, their investigation failed “to uncover compelling evidence of criminal intent or a pattern or reckless conduct regarding minors.” In fact, it “revealed a strong economic incentive for Backpage to rid its site of juvenile prostitution.”

Ultimately, it was their assessment that “Backpage genuinely wanted to get child prostitution off of its site.”

It seems fairly ridiculous that Backpage is now prevented from using this evidence in court, but at the very least, the court of public opinion deserves to see what was really happening.

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Comments on “New Government Documents Reveal That Backpage Was Actively Helping Law Enforcement Track Down Traffickers”

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53 Comments
That One Guy (profile) says:

Key word there: 'Was'

In effect, everything the company did to enhance protection and legality was twisted into evidence of criminality and moral failure. And, for years, folks have promoted these topsy-turvy explanations.

Bend over backwards and go out of their way to help catch and stop sex traffickers? Thrown to the wolves, prevented from being able to present the evidence of that effort in court because it undermines the prosecutors(seriously, could the judges and prosecutors be any more blatantly corrupt, given they are ordering the destruction of exculpatory evidence?)…

Between FOSTA tying knowing something’s going on with liability for it, and Backpage having their own actions used against them good luck getting any site to so much as talk with investigators, and as for sites proactively calling them up to report something a moderator or owner of a site would have to be insane to even try, so that’s off the table.

Yet more evidence it would seem that for all the claims about how evil Backpage was and how necessary FOSTA was to ‘protect the victims of sex trafficking’, it was if anything helping no-one but those engaged in sex trafficking, helping them keep their actions hidden and away from the eyes of those that would stop them.

ECA (profile) says:

Re: Key word there: 'Was'

Agree.
It was said here and other palces that sites and Locations like this, and even the old newspapers were HELPING monitor things for along time.
No one listens.
To be EXACT, it was even mentioned that its only going to Bury the situation.. and questions asked of, WHO would want that? were never answered.
It was even declared WHO could afford to have a Child slave, taken from another family and housed and protected as well as kept Well, for many years?

The answer is in there. And no one cared. Except those responsible…

Why dont we go after the law makers that decided this had to end? They did it, they Either DIDNT see the logic, or were paid allot of money to Force this to disappear.

I love the reality of things, and the Humanity that Loves to hide things, so they can say…"its not happening"
We have solutions to many things, but we dont use them.. Every state has millions of Dollars sitting for Low income housing..and it aint being used.

aerinai (profile) says:

You can't use the memos, but what about the people?

So… What would stop Backpage from calling every person that was mentioned in those memos (under the assumption that they had a relationship with them.) and having them attest those statements under oath on the stand? I mean, if they basically say what their memo’s said, it should be pretty damning for the prosecution, no?

That One Guy (profile) says:

Re: 'On what grounds?'

The previous judge handling the case (who recused himself) agreed with the prosecution that the memos, which had been filed under seal in the Western District of Washington, must remain sealed and that the defense must destroy its copies.

Given how determined the judges involved seem to be in ensuring that the memos in question are never brought up in court it would not surprise me in the least if any attempt to bring those mentioned in the memos to court would likewise be blocked, or if they were allowed they’d be prevented from using the contents of the memos in order to question people for clarification.

Anonymous Anonymous Coward (profile) says:

Re: Re: 'On what grounds?'

Wouldn’t that depend upon allegations made by the prosecution? If the prosecution brings up, say that Backpage was allowing xxx, then the defense would have the right to bring witnesses and/or evidence to refute that. They may have to be careful about how they go about presenting those witnesses (don’t mention the memo, just ask about behavior) but I cannot see any reason to not allow them.

I know ‘sealing’ this document, possibly because it refutes the entire prosecution, doesn’t make any sense to you or me (and likely a whole lot of others) but that doesn’t take into account the agenda, and since we know that the government changed horses in the middle of the race we have to question not only what that agenda is, but where it was instigated from.

Michael (profile) says:

Re: You can't use the memos, but what about the people?

You cannot just subpoena anyone for no reason.

Anyone can be asked if they will testify, but for anyone that works for the DOJ, saying "yes" to the Backpage defense is a career killer.

In addition, while you know what the document says, the defense cannot really use it in questioning. So, they do not have a way to lead the witness to their statements. Instead, they would just have a witness that they have effectively endorsed as some kind of expert and they don’t really know what they might say. That is precarious, at best.

Based on the amount of information becoming public, it seems their strategy is to wait for / help along information leaks into the court of public opinion long enough for the DOJ to start to get a little worried about what else may come out – then cut a deal that keeps them out of prison.

Neurodiversity says:

Re: You can't use the memos, but what about the people?

The memo of internal wrangling is whatcha call "not probative". Sure, it’s handy for the defense to obscure with — raising likelihood that Backpage was cynically "manufacturing evidence" all along.

As I wrote below: Backpage could have shut down the whole category as sleazy with clear problems, but WANTED THE MONEY, period.

Anonymous Anonymous Coward (profile) says:

Headhunters

When headhunters go looking for heads to shrink, I think they have very limited criteria for determining whether a particular individual is a good candidate. Has head, go hunting.

Which brings up the question as to who caused the government to change course and go from cooperating with Backpage to vilifying Backpage? Clues may be found with the utterances of those proposing and propagating FOSTA, but I doubt they would be conclusive, which doesn’t mean that some powerful politician didn’t put a bug (or future political incentive) under some DOJ prosecutors ass to get the ball rolling.

What is apparently suspect now is how the prosecution is going, and what tidbits are left on the trail for appeal. Not being a lawyer I have no way to determine if ‘sealing’ this memo is one of those tidbits, but it certainly does nothing to enhance the DOJ’s image as an organization with justice in mind. I have heard lawyers say that they don’t do justice, they do law, but, in the end justice is supposed to be the outcome. If lawyers don’t do justice, but only law, who speaks for justice?

lucidrenegade (profile) says:

Re: Headhunters

Which brings up the question as to who caused the government to change course and go from cooperating with Backpage to vilifying Backpage?

The politicians and law enforcement higher-ups got wind of it? They’re never ones to let a good opportunity to grandstand go to waste, no matter the cost.
Sex trafficking is going to happen whether or not Backpage exists.

That Anonymous Coward (profile) says:

Because everything we do is on the up and up and there is this whole system in place to make sure the rules are followed…. but when we don’t like how the rules make us look, ignore them.

This was a wonderful PR campagin that made the world a worse place.
Sex workers are being killed.
The scant few actually trafficked children are less visible.
People feel that the war was won we got the rich guys.

Why shouldn’t the 15 yr old pimped out by her druggie step dad not have the right to sue Backpage??? They made it possible!!
And in the same breath we can’t let people sue gun makers for making weapons that made it possible to kill that many people at once.

Pity we can just be honest.
People like sex.
Some people like to do sex work.
Some people do sex work for survival because society has failed to protect its most vulnerable.
We claim to care about our fellow man as we make sure Sex Workers can’t have bank accounts, we allow corporations to steal their money b/c doing business with a sex worker is bad!

This case seemed like a good idea to them at the beginning, now they are having problems keeping a lid on the actual truth that they screwed over the platform that was doing the most to help them & now we have no idea how many victims were saved or helped… b/c the "experts" keep multiplying numbers they imagine by 2 million to decide half of the worlds population is forced to sleep with the other half for money.

Someday maybe we could require actual evidence that can stand up to review before doing things.

Neurodiversity says:

OR: Backpage admits was child prostitution on its site.

First, this is NOT new: YOU should know that best, have been claiming this all along! — Just looks better when an adequate writer works it up!

Ultimately, it was their assessment that "Backpage genuinely wanted to get child prostitution off of its site."

Ernie Allen, then in charge of NCMEC, thought so too. He had told prosecutors he believed Backpage was genuinely trying to combat underage ads, although "use of the Internet to market commercial sex was so fluid that any system of moderation and reporting was destined to fail" (as prosecutors paraphrased).

Doesn’t matter what the gov’t believed or didn’t. All that matter is two facts:

First KEY FACT: Backpage KNEW that prostitution was openly advertised. That’s illegal enough to justify all Federal efforts.

This was simply let go on too long. Bringing a legal case is difficult, sure. And lawyers always drag out to ridiculous length. But the executive branch is authorized to move extra-legally when clearly required. Should have stormed the place, seized all persons and equipment in FIRST year of investigation, then sort out at leisure. — So as usual, BLAME LAWYERS for giving Backpage this bit to obscure more with.

Second KEY FACT: Backpage could have shut down the whole category as sleazy with clear problems, but WANTED THE MONEY, period. As Masnick has so often pointed out, Backpage has a duty as condition of its existence to "moderate" and remove any content which is illegal. (Actually, Masnick doesn’t care whether is illegal, claims "deplatforming" can be entirely arbitrary.)

One of the most brazen attempts to flip a story I’ve ever seen, taking the sheer FACT and then claiming were helping the Feds to stop it! More likely were obstructing and/or keeping focus off "connected" pimps, or ones paying for "premium" service.

The advertising went on to Backpage’s last day! So at best the effect was to obscure and keep the lucrative adult prostitution advertising by claiming battling the worse that they know is utterly insupportable.

Don’t forget that Masnick still advocates letting ALL continue on the notion that police could then easily make arrests — his usual ludicrous self-contradictory: clearly the police were NOT making arrests else no one would be advertising prostitution.

Similarly the comments on "Reason" show why I don’t read it! Loony "libertarian" types who want to legalize prostitution. It’s a mania with those types, defying the experience of millenia. — Ron Paul wants to do away with child labor laws. — Put those two loony notions together and you get exactly what was advertised on Backpage!

Anonymous Anonymous Coward (profile) says:

Re: OR: Backpage admits was child prostitution on its site.

Things aren’t illegal necessarily, until they are proven to be illegal, in a court of law. Personal ads, per se, aren’t illegal. Personal ads that mention compensation in exchange for sex or underage sex are illegal, and these are the ones that Backpage brought to the attention of the Innocence Lost Task Force and others and then removed from their site.

And yes, Backpage was in business, the business of selling classified advertising, so why wouldn’t they continue until stopped? Your arguments have no legs.

Anonymous Coward says:

Re: OR: Backpage admits was child prostitution on its site.

"but the executive branch is authorized to move extra-legally when clearly required"

No they are not. See 18 USC 242 and 42 USC 1983 et seq.

Also, the entire sealing of the memos stinks to high heaven here — ever heard of Brady v. Maryland? (I suspect that the sealing decision could very well backfire badly on appeal, as even though they may not be probative, they are still useful as exculpatory evidence, and thus fall under Brady‘s ambit.)

Finally: consider that the "loony libertarian types" are about the only thing left of the American right wing that hasn’t gone off and become a bunch of total authoritarian bootlickers. We have far too many folks who enjoy shoe leather on the tongue already….

Filed under: Authoritarian bootlicking is a barrier to keeping our republic

Anonymous Coward says:

Re: OR: Backpage admits was child prostitution on its site.

the executive branch is authorized to move extra-legally when clearly required.

No, it’s not. There are no circumstances in which any part of the US government is allowed to do anything whatsoever without legal authority.

You shoud lay off the drugs. They’re illegal. And they make you rant in ways that make it obvious you’re a crackpot.

As Masnick has so often pointed out, Backpage has a duty as condition of its existence to "moderate" and remove any content which is illegal.

Masnick has consistently said the exact opposite of that.

Loony "libertarian" types who want to legalize prostitution. It’s a mania with those types, defying the experience of millenia.

The experience of millennia is, more or less, that when prostitution is legal, as it has been in many, many times and places, prostitutes no more numerous than when it’s illegal, and the ones who exist are on the average marginally better off. But of course loonies like you have always been far more interested in feeling like you’re on the virtuous side than in actually helping anybody.

Stephen T. Stone (profile) says:

Re:

Loony "libertarian" types who want to legalize prostitution.

Prostitution should be decriminalized. Legalization means regulation, and the government shouldn’t have any control over what someone does with their body in re: a private consensual sex act between adults regardless of whether one of the adults pays for the sex.

Anonymous Coward says:

Re: Re: Re:

When did the language shift like that?

In my experience, "decriminalized" has always pretty explicitly meant "heavily regulated and frowned upon, but we won’t actually throw you in prison for it any more".

"Legalized", on the other hand, has always had at least a connotation of "we’re going to repeal the laws against this and replace them with nothing". Even if that’s not how it usually works out.

Stephen T. Stone (profile) says:

Re: Re: Re:

Think of it in terms of marijuana legalization. If the government were to legalize the sale of marijuana, there would be regulations aplenty about who could sell it, what kinds could be sold, how much could be sold, the price for which it could be sold, how much it would be taxed, and so on. Violating those regulations would result in a stiff punishment. But if the government were to merely decriminalize the sale of marijuana, it would mean anyone could sell marijuana without both regulation and fear of being tossed in jail. (Whether you think that’s a good thing or a bad thing is your business.)

The same logic applies to prostitution. Legalize it and you get a mess of regulations surrounding people’s bodies and sexual acts. Decriminalize it, however, and prostitutes wouldn’t have to worry about being sent to jail for both the act of accepting money for sex or violating a regulation surrounding that act.

nasch (profile) says:

Re: Re: Re:2 Re:

If the government were to legalize the sale of marijuana, there would be regulations aplenty about who could sell it, what kinds could be sold, how much could be sold, the price for which it could be sold, how much it would be taxed, and so on.

There could be, but that is not a consequence of legalization. The only things that are pretty much certain is restrictions on age, and taxing it.

Stephen T. Stone (profile) says:

Re: Re: Re:3

that is not a consequence of legalization

But it is.

Decriminalization merely removes a law that says “[x] is illegal”. Consensual sex between two men, even in the privacy of their own home, was considered illegal under sodomy laws until Lawrence v. Texas. In the wake of that decision, there have been exactly zero laws passed that say “homosexual sex is legal”.

But legalization specifically requires laws to be written. If lawmakers plan to pass a law, it must inherently have limits such as the ones I mentioned in marijuana example for the sake of both appeasing the federal government and staying within the bounds of the Constitution (and existing laws). Any law legalizing consensual sex between two gay people would absolutely require rules (i.e., regulations) that say when, where, and how gay sex is either legal or illegal.

Legalizing prostitution would bring any number of regulations down upon “the oldest profession”. Decriminalizing it, on the other hand, would merely let things go as they are now without the cops arresting customers and “providers” alike for what is essentially an agreement to have consensual sex. Whichever one you prefer likely depends on whether you think the government should regulate what someone can do with their own body.

Anonymous Coward says:

Re: OR: Backpage admits was child prostitution on its site.

Similarly the comments on "Reason" show why I don’t read it!

Um. Weren’t you on this very site like a month ago pointing to Reason as an example of the "right" way to do comments, since they let you spew your nonsense there? Wish I could search the comments better to find it, but I do remember that pretty clearly.

Anonymous Coward says:

One of the most brazen attempts to flip a story I’ve ever seen, taking the sheer FACT and then claiming were helping the Feds to stop it!

This isn’t TechDirt "flipping the story." The information shows that the government itself had concluded backpage was trying to help.

More likely were obstructing and/or keeping focus off "connected" pimps, or ones paying for "premium" service.

[Asserts facts not in evidence]

That One Guy (profile) says:

Re: Re: Re:

I know he’s the go-to when people think ‘revolutionary’, but dig into him just a little bit and you find he’s a really bad example. He wasn’t trying to ‘overthrow the tyrants’ or any such rot, he was trying to replace them with his preferred brand, with his attempt at assassination and mass murder an attempt to replace a then protestant king and government with a catholic one.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:4 Re:

For me, it goes deeper than that. The ‘party leaders’ who OK which person will stand for office (after they express willingness or are nominated) are likely even more stinky than those who actually run.

I am for a no party system. This was heavily debated by the Founding Fathers, and the party system won. I think this was a mistake, and we are paying for it now. Since it was a choice then, and there is nothing in the Constitution requiring political parties (that I know of) it is still a choice, though one those in power will not take well.

Rekrul says:

Prosecution: Backpage is evil!

Defense: Here’s a bunch of government memos proving that we’re not evil.

Prosecution: We didn’t mean to give exonerating evidence to the Defense! Make them give it back!

Judge: OK, we all have to pretend that the evidence which clearly shows you didn’t do the things you’re accused of doesn’t exist.

Prosecution: Thanks for letting us hide the evidence and continue to lie about them.

Judge: No Problemo!

Defense: WTF???

Garhunt05 says:

That was never the claim.

Nobody was saying that they weren’t helping law enforcement. The claim was always that they were helping facilitate trafficking.
in the senatorial report it was noted that internal email show that Backpage was not able to find all of the nce MC post that were put on their website as a stress test. Also their internal email showed that they refused and some law enforcement suggested precautions for preventing human trafficking on their website. On top of that they were also suggesting that it was better for trafficking to occur on their website rather than to stamp it out which is effectively admitting that it’s taking place on their website. Another internal email between their staff actually says then they were to limit the amount of reports of child trafficking as well as limit the the deletions of possible child trafficking taking place on their website.

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