Legal Issues

by Tim Cushing


Filed Under:
doj, sesta

Companies:
backpage



Federal Backpage Indictment Shows SESTA Unnecessary, Contains Zero Sex Trafficking Charges

from the all-about-the-sex-trafficking-except-when-it-isn't-really-about-that dept

Last Friday, the DOJ somehow managed to seize Backpage's websites, despite SESTA/FOSTA still lying on the president's desk waiting for a signature. The anti-Section 230 law, d/b/a an anti-sex trafficking statute, was declared a necessity by supporters -- the only thing able to pierce service provider immunity and somehow bring sex traffickers to justice by... [checks notes] arresting or fining tech company executives.

The indictment [PDF] behind the DOJ site seizures has finally been made public. It contains a wealth of details about Backpage's adult ads business and a plethora of charges (93) levelled at seven Backpage principals, including founders Michael Lacey and James Larkin.

What you won't find amongst the charges is anything about sex trafficking. Lacey is charged with 79 felonies, which include money laundering (which occurred after credit card companies were pressured into refusing to process Backpage ad payments), conspiracy, and 50 counts of Travel Act violations. Because Backpage processed adult ads for sex traffickers all over the nation, prosecutors are able to bring federal charges for state-level "facilitating prostitution" violations against Backpage execs under the theory these electronic transactions "crossed" state lines.

So, for all the handwringing about sex trafficking and "untouchable" tech execs, the DOJ has nailed a handful of execs and foregone any concerns about their apparent role in sex trafficking. What the indictment shows is Backpage allegedly facilitated a whole lot of consensual sex between paying customers and sex workers. The indictment also inadvertently shows how Backpage made things safer for sex workers.

In one internal email, LACEY actually bragged about the company's contributions to the prostitution industry: "Backpage is part of the solution. Eliminating adult advertising will in no way eliminate or even reduce the incidence of prostitution in this country… For the very first time, the oldest profession in the world has transparency, record keeping and safeguards."

To the government, this is a bad thing. To sex workers, it was a way to pre-screen customers and reduce their own risks. The government really doesn't care if sex workers are beaten, raped, or killed. It would rather force the oldest profession as far underground as possible and presumably let attrition cull the supply side. Meanwhile, it will busy itself with arresting the demand side, because that's the easiest way for it to rack up convictions. It quotes an affidavit from a Boston PD detective stating that "since 2010," the PD had arrested "over 100 buyers of sex of both adults and minors through Backpage.com ads." And this stops sex trafficking how? There's no mention of pimps being arrested despite the same detective making the sworn statement that "nearly all" cases associated with Backpage "involve pimp-controlled prostitution."

But that's about all the nice things I have to say about Backpage. The indictment contains details from internal documents showing ad moderators routinely stripped references to underage sex from ads so they could still allow the ads to run and presumably reach customers. They also show Backpage never implemented recommendations from NCMEC (National Center for Missing and Exploited Children) and researchers to better police ads for possible abuse of minors. The communications obtained by the government also show Backpage withheld info from NCMEC to keep its referrals to less than 500 a month. So, while it was referring plenty of stuff to the child exploitation clearinghouse, it was also holding stuff back so as not to appear to be a clearinghouse for child exploitation.

As for the efforts it made to strip ads of terms and pictures that might have given away the illegal nature of the acts being advertised, I'm less appalled. To be sure, this sort of facilitation is illegal. But the moderation efforts, in some cases, prevented illegal ads from being posted and only allowed those through that eliminated indications sex was being exchanged for money. The ads were likely legal post-moderation, but the acts being slyly advertised, not so much.

The bottom line appears to have been the main consideration -- not adherence to multiple statutes in the multiple states Backpage served customers. That leads to another fact routinely trumpeted by politicians and prosecutors: that the vast majority of Backpage's income came from "illegal" sex-for-sale ads. It's a fact but it's somewhat misleading. Sex ads were the only base service Backpage charged for. It was always going to make the most money from these ad sales. It's not because they were so much more profitable on their own. There's just nothing else to compare it to. Something that costs something is always going to generate more income than stuff given away for free.

On top of that, this ad section -- where Backpage made money -- was already killed by Backpage voluntarily. People selling and buying sex didn't just vanish, though. It migrated to other sections of the site, just like it did when Craigslist killed their adult services section off years ago. The market didn't disappear. It just became a little bit tougher to locate.

Whether you believe Backpage execs are scapegoats or pariahs, one thing is certain: legislators didn't need to tamper with Section 230 protections to make this happen. Plenty of existing statutes were available for prosecutors to wield against the website and its founders. And for all the talk of sex trafficking over the weekend, there's not a single charge related to sex trafficking in the long list being presented to a federal judge.


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  • identicon
    stine, 10 Apr 2018 @ 6:55am

    Just like Al Capone

    Tax Evasion and mail fraud interspersed with extremely hyperbolic statements.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2018 @ 9:34am

      Re: Just like Al Capone

      Everyone is a criminal, there are so many laws on the books and many of them that are contradictory that you cannot even avoid breaking the law while trying to follow it.

      Those in power will always seek to solidify it and add to it so they can remain in power.

      Many people will also give them that power under the guise of receiving protection. The classic life cycle of government for human history. Tell people you will protect them if they let you be the boss... and they lay right down for you.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 10 Apr 2018 @ 7:25am

    Question

    Sesta is clearly unconstitutional due to the ex facto provision but could it still go into the books without that specific provision? I mean, lawsuits questioning if it is constitutional would strike down the entire thing or just that provision?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2018 @ 9:36am

      Re: Question

      News flash, we all stopped requiring the government follow the constitution a long long time ago.

      reply to this | link to this | view in chronology ]

    • identicon
      Thad, 10 Apr 2018 @ 10:21am

      Re: Question

      In a hypothetical case where the only argument the plaintiffs make is "this is unconstitutional because of the ex post facto provision," then the only thing that gets struck down is the ex post facto provision, and the rest of the law survives.

      That seems like an unlikely tack, though. Plaintiffs won't just argue against the ex post facto provision, they'll also argue that it violates the First Amendment. That argument could be successful in getting the entire law thrown out, though that's a much bigger "if".

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2018 @ 5:23pm

      Re: Question

      It would boil down to a judge's discretion. Unless there's a part of the law that says a certain provision in it must be present and that part is unconstitutional then in that case the whole law is scrapped.

      Otherwise they can rule that part be stricken down while leaving rest of the law in place.

      reply to this | link to this | view in chronology ]

  • icon
    The Wanderer (profile), 10 Apr 2018 @ 7:49am

    Alternate interpretation

    Predicted reaction of SESTA's supporters:

    "See? They couldn't bring any sex-trafficking charges against Backpage! This proves that we need SESTA, so that we can hold these people to account for their role in sex trafficking!"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2018 @ 11:44am

      Re: Alternate interpretation

      I'm seeing the phrase "knowingly provided" interspersed in my local news station when talking about Backpage's indictment.

      They're already trying to fool plebs into thinking SESTA enabled them to do this to Backpage, not the pre-SESTA laws.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2018 @ 8:18am

    prostitution vs. art

    It seems like the only difference between (illegal) prostitution and (legal) first amendment protected "speech" is that one has a camera rolling while the other does not.

    Thus, privacy factors aside, It would be easy to legalize prostitution just by recording the event -- at least in theory.

    Though somehow that "camera = art" theory apparently didn't work for this legal eagle:

    vhttp://www.dailymail.co.uk/news/article-5588923/Lawyer-cries-sentenced-80-years-prison-forcin g-clients-sex.html

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 10 Apr 2018 @ 8:40am

      Re: prostitution vs. art

      One other possibly important difference in the case of porn: none of the participants in the sexual act are paying to do it, they're all being paid, by a non-participant. I don't know if the law specifically recognizes that as an important difference, but I suspect that it may.

      (Of course, that would just bring up the question of someone who's enough of a voyeurism fetishist to pay other people to have sex with each other just so he(?) can watch without participating, but I imagine there would be caveats in the law to account for that.)

      I do recall reading something a while back whose gist was that people had tried to put a veneer of legality over prostitution exactly by using the "see, a camera! we're making porn!" defense, and it didn't work out.

      reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 10 Apr 2018 @ 10:32am

        Re: Re: prostitution vs. art

        " they're all being paid, by a non-participant. "

        I'm not sure the paying part is forbidden from participating. I can't recall any specific case but I have the impression there are producers that take part in their productions. I'd guess it's something that's going to be filmed and commercialized or exposed some way. But I could be wrong because I have no clue about regulations on the porn industry.

        reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 10 Apr 2018 @ 12:12pm

        The Californa "Pandering" affair

        After a law incriminating pandering was interpreted by ambitious attorneys to go after pornographers, we had a lengthy trial (which bankrupted one porn mogul) but ended in recognition of the First Amendment right to produce porn. California now has rulings specifying that porn production is legal in the state. And it is lawful to pay the talent to fuck each other.

        I don't know the specifics of the laws, whether a camera makes paid sex legal. A later provision requires permanent records of shooting sessions, voted in to slow further porn production. It didn't.

        I do know that in California, making porn is officially and expressly legal, and the redder parts of the state (quite a lot of it actually) have to suffer the perpetual shame that porn is legal in California, and that consequently California is the porn capital of the world.

        Since then, in other states where porn is still in a gray zone, legislators and attorneys have learned to look the other way. No one else wants porn to be expressly legal in their state, and if porn production is challenged the first amendment is sure to rear its ugly head again, and then that state would have to wear the same badge of shame.

        So for now a lot of sleeping dogs are being left to lie.

        In the meantime, obscene pornography (your definition of obscene may vary) including obscene texts on your phone can be grounds for arrest and asset forfeiture. Remember that law enforcement officers do not have to know the laws they're enforcing, and pretty much just decide whether or not you're adequate grist for the prison system.

        reply to this | link to this | view in chronology ]

      • identicon
        Anon Coward, 10 Apr 2018 @ 6:14pm

        Re: Re: prostitution vs. art

        The distinction between all participants in porn being paid by a 3rd entity doesn't really hold, because it's a common porn trope for men to produce, film and star in their porn productions. Sometimes payment transactions are even included in the clips.

        reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 10 Apr 2018 @ 8:52am

    ... Meanwhile, it will busy itself with arresting the demand side, because that's the easiest way for it to rack up convictions...."

    so about President Trump....

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 10 Apr 2018 @ 10:34am

    No, CDA UnConstitutional exempting certain corps from liability.

    ALL laws in the US of A are supposed to apply equally to every person / entity engaged in certain actions. CDA exempts "internet" corporations from liabilities of Publishing that still apply if on paper. So yet again: CDA was only meant as temporary while rules were evolved for an emerging area. That period is now OVER. We now know full well how criminals will make use of "the internet" to expand criminality in new ways.

    FOSTA REMOVES THAT EXEMPTION. It's fully Constitutional -- even if the alleged "ex post facto" parts were applied, because those actions were criminal before. Removing the exemption is not onerous new law, it's making all corps in the area of Publishing equal AS BEFORE. -- Actually, there's still too much exemption left, but that just points up how FOSTA is NOT a big deal.

    But Techdirt favors the surveillance / advertising corporations which benefitted from CDA so had no responsibility or liability. -- Indeed, Techdirt is "supported" by Google, just take the Copia link to see why Techdirt keeps running this whining about law which passed with 94%. Doesn't even bother Techdirt to be in the 6% that appear in favor of prostitution, especially of slaves and children.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 10 Apr 2018 @ 11:32am

      Re: No, CDA UnConstitutional exempting certain corps from liability.

      Actually CDA 230 acknowledges the inherent differences between paper or even digital content that's produced directly by the ones publishing it (completely controllable and relatively low volume) and user generated content (gargantuan volumes and virtually uncontrollable before it's online). But of course you wouldn't recognize that difference. Do you believe in fairies and that unicorn power can magically filter bad content out as well?

      "It's fully Constitutional"

      No, it isn't. The ex facto provision makes it unconstitutional.

      "it's making all corps in the area of Publishing equal AS BEFORE"

      They were never equal. It's just that in the beginning the volume of user generated content was much lower and could be dealt with.

      "But Techdirt favors the surveillance"

      You are the one favoring surveillance and control because this will actually screw the users and concentrate the power on the few players that have the pockets to bear the burden of this shitty law.

      "Doesn't even bother Techdirt to be in the 6% that appear in favor of prostitution, especially of slaves and children."

      Ever heard of defamation? Or do you have evidence of what you are saying? Because I think you are in the 23%* that couldn't care less about children or sex traffic victims as long as your own ego is massaged enough.

      *64,3% of all percentages are made on the fly by the way.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2018 @ 11:54am

      Re: No, CDA UnConstitutional exempting certain corps from liability.

      CDA exempts "internet" corporations from liabilities of Publishing that still apply if on paper.

      With paper publishing, an editor decides what will be published, right down to letters to the editor and adverts. Do you really want to silence yourself by forcing that level of control on the Internet. All that CDA 230 says is the the user is responsible for what they publish, and moderation of a site does not make the site resposible for user posts. if you make the site owner responsible for user posts, you force them into becoming editors.

      reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 10 Apr 2018 @ 12:50pm

      Re:

      CDA exempts "internet" corporations from liabilities of Publishing that still apply if on paper.

      No it does not. The creator of the content is held responsible, like always.

      I think what trips you up about this is that you consider internet platforms that provide user content the same as traditional publishers, like newspapers. In reality they are more like Zerox machines, making copies available of someone else's content. We don't hold Zerox liable when someone makes a copy of some text that defames someone, do we?

      reply to this | link to this | view in chronology ]

  • icon
    Improbus (profile), 10 Apr 2018 @ 10:40am

    Jury Nullifcation

    Someone needs to whisper into the ears of the jury: jury nullification. That will give the prosecutors and their supporters the kick in the nuts they truly deserve.

    reply to this | link to this | view in chronology ]

  • identicon
    Sok Puppette, 10 Apr 2018 @ 12:02pm

    I have in the past said that nobody had presented any credible reason to believe that Backpage actually contributed to creating prostitution-related content, and in fact mentioned that the last "Backpage indictment" had clearly failed to allege that. The most I'd seen anybody willing to specifically claim was that Backpage had automatically bounced ads with specific keywords and perhaps told the users why.

    For the record, I appear to have been wrong. This indictment has a bunch of very detailed, presumably verifiable allegations of very specific activity that clearly amounted to Backpage editing content, including giving specific, detailed instructions on what to change as well as manually modifying the text of many ads.

    That's a different kettle of fish. Whatever you think about whether prostitution or advertising for it should be legal, if what's claimed in this indictment is true, then Backpage was participating directly. And (out here in the court of public opinion) there's no reason to disbelieve such detailed claims, since it's not credible that anybody would make such claims if they didn't think they had evidence that would hold up at trial.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2018 @ 12:18pm

    Why so many supporters for SESTA?

    "For the very first time, the oldest profession in the world has transparency, record keeping and safeguards."

    Ever wonder how many SESTA-supporting politicians will show up in Backpage records??? ;)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Apr 2018 @ 12:47pm

      Re: Why so many supporters for SESTA?

      All that will achieve is to give the DOJ more leverage in gaining more powers to spy on everyone.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Apr 2018 @ 2:37pm

    SESTA, brought to you by Facebook, Google, and other fine Techdirt sponsors.

    reply to this | link to this | view in chronology ]


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