from the you-can't-do-that dept
Backpage.com has been the target of lots of moralizing, grandstanding law enforcement types, who absolutely hate the fact that there’s a classified site out there where some users use it for prostitution (I know that some of the comments will discuss the question of whether or not prostitution should even be a crime, but right now it is, and so this article won’t focus on that other discussion). As we’ve noted time and time again, it’s bizarre that law enforcement folks keep blaming the platforms, when those platforms are actually really useful for law enforcement to track down, arrest, prosecute and convict people actually breaking the law. Still, the grandstanding forced Craigslist to completely shut down its adult section, and most of that traffic moved over to Backpage.
And now, the CEO of Backpage, Carl Ferrer, has been arrested in Texas for “pimping,” with both Texas Attorney General Ken Paxton and California Attorney General Kamala Harris pushing out grandstanding press releases to talk about how tough on prostitution and pimping they are.
There’s just one big problem in all of this: the charges are almost certainly completely bogus, and Harris and Paxton are flat out ignoring federal law on this matter. Specifically, they’re ignoring the law we talk about all the time: Section 230 of the Communications Decency Act. As we’ve noted over and over again, CDA 230 says that internet platforms are not liable for the content created by users. There’s an exception for federal criminal acts, but not for states. Various state Attorneys General have been whining about this for years, and demanding Section 230 get a new exception just for them, but that hasn’t happened. So Harris and Paxton clearly know about Section 230, and clearly know that they’re just ignoring the law. They apparently don’t care. They’re either too focused on the publicity grandstanding value of pretending like they’re “tough on crime,” or they’re hoping that by presenting emotional stories, they’ll win over judges and convince them to ignore Section 230.
Harris is currently running for the US Senate, so the timing of this is particularly interesting. Paxtron isn’t up for reelection for another two years, but is currently enmeshed in a securities fraud scandal in Texas, facing criminal charges in Texas and civil charges from the SEC, so perhaps he’s looking for something to distract the press from that.
But the simple fact is this arrest is almost certainly bogus. The criminal complaint is really light on details, repeatedly claiming that Ferrer and two other Backpage execs (Michael Lacey and James Larkin) “knew” about specific underage victims being trafficked on the site, but presents no evidence to support that. The much more interesting read is the declaration in support of the arrest warrant for the three men, signed by California special agent Brian Fichtner.
While it does note that there is a “confidential attachment” to this declaration, what’s in the declaration itself doesn’t come anywhere close to being enough information to get around the protections of Section 230 — and, in some cases, actively seems to work against the case, even as the declaration seems to think otherwise. I kept waiting for the “smoking gun” in the declaration, but instead, it appears that Backpage not only does go above and beyond what’s required by the law, but when contacted by law enforcement was quick to take down specific ads they called out.
The declaration notes that the California DOJ contacted people being advertised on Backpage, and met with some of the individuals, and it always resulted in offers of sex for money. That may be true, but again, Section 230 makes it clear that the criminal act is the prostitution, not the fact that they used Backpage for ads. Then, there’s this weird situation where Fichtner talks about creating some ads himself, which seems to really undermine the DOJ’s overall argument:
In March 2015, I created two undercover advertisements on the website
BACKPAGE. One of the ads was posted in the “Escort” section and offered the service
of adult companionship for money, the other ad was for the sale of a sofa and was posted
in the “buy, sell, trade” section of BACKPAGE. The minimum fee to post the “Escort”
ad was $10.00. Posting the sofa was free of charge. BACKPAGE also offers the ability
to upgrade an ad for an additional fee. I upgraded both ads, allowing the ad to be
automatically reposted to the top of the page several times during the day. The total cost
of the “Escort” ad with the upgrade was $111.20. The total cost of the sofa ad with the’
same upgrade was $1.22. Both of the ads were posted using the same undercover cell
phone number. DOJ Special Agent (SA) Tera Mackey monitored the undercover cell
phone. Within minutes of the “Escort” ad going live, SA Mackey began receiving calls
and texts. SA Mackey told me she received hundreds of inquiries for the “Escort” ad, but
received only one inquiry for the sofa. SA Mackey said all the calls and texts related to
the “Escort” ad were requests for sexual acts in exchange for money.
So? The fact that the escort ads are more popular than the sofa ads isn’t exactly news — nor is the fact that they’re more expensive. Basic economics says the more popular ads should cost more, right? But none of this means that Backpage is guilty of anything. Again, so much of the affidavit seems to basically be based on this argument: lots of prostitution happens on Backpage, therefore Backpage is guilty. But that’s not what the law says. The law is quite clear that Backpage has to actually be much, much more involved in the prostitution than just providing a platform that prostitutes and pimps use — even if Backpage knows that some (or even a lot) of its ads are for prostitution.
And then there’s the next bit, which seems to totally undermine the case against Backpage and its execs:
After letting the undercover ads run for approximately (ten )10 days, I decided to
call BACKPAGE and ask them to remove it. My goal was to learn the process of
removing an “Escort” ad from BACKPAGE that law enforcement identifies as an ad for
prostitution. My first call was to Liz McDougal, BACKPAGE legal counsel, but I
received her voicemail. My next call was to FERRER. When FERRER answered the
phone, I identified myself as law enforcement. I told him that I had identified a prostitution ad in the “Escort” section of BACKPAGE (I did not tell FERRER that I
posted the ad) and that I was seeking a way to remove the ad. FERRER initially directed
me to report the ad by email to abuse@BACKPAGE but then he asked for the name of
the ad. I provided him with the Post ID number for the ad. It was apparent that FERRER
was looking up the “Escort” ad on his computer because I could hear him typing as I
provided him with the Post ID number. He explained that if I report the ad to
abuse@BACKPAGE, I should include my phone number in order to confirm that I was
law enforcement. He mentioned that they have been “spoofed” by individuals claiming
to be law enforcement when they were not.
FERRER told me he located a second ad from the same “user,” but it was for a
“sofa” and did not appear to be illegal. FERRER said he would personally report the ad
and “lock it out.” He said it would be removed by the end of the day. A short time later, I
searched the website to try and locate the “Escort” ad and the sofa ad, but both ads had
been removed. I tried to repost the “Escort” ad, but Backapge.com did not allow it to go
Uh, so… how is this evidence of a crime? It seems like the exact opposite. It appears that when directly informed about illegal ads, the company takes them seriously, deletes the ads, closes accounts and blocks reposting of the same ads. That’s exactly the kind of thing that CDA 230 is supposed to encourage. By making platforms protected from liability for the actions of their users, the law also says that any efforts at monitoring/filtering/blocking cannot be used to argue for liability on the content that was not blocked. Yet that’s exactly what Kamala Harris and Brian Fichtner do here. It’s as if they don’t know or don’t care about the law!
And then Fichtner finds more nefarious filtering that further undermines his case (and, again, which 230 says cannot be used against Backpage):
In May 2015, I created another BACKPAGE “Escort” ad with the goal of trying
to post an ad containing sexual verbiage indicative of a prostitution ad. I used the words
“cum” and “quickie” in the ad, but when I tried to post it, I received a message that told
me those words were “forbidden in this category.” I had to change the words to “come”
and “quick session” in order for the ad to be accepted.
BACKPAGE may have restricted the use of the sexual verbiage in my undercover
ad, but when I conducted a random search of the BACKPAGE escort section, I viewed
numerous “Escort” ads that contained photos and videos that depicted full nudity. Many
of these nude ads were simulating and/or performing sexual acts. BACKPAGE states
they moderate their ads and implement a policy against posting obscene or lewd and
lascivious graphics and photographs, however, my personal observations have indicated
Again, this is the exact thing that CDA 230(c)(2)(A) is specifically designed to prevent. It says that “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” I’m guessing that prosecutors will argue that these efforts are not done in “good faith,” but that seems like a really difficult hill to climb.
And, of course, it’s not like this is the first time Backpage has gone to court. All the way back in 2011 a court said that Backpage was protected by Section 230. Then in 2015, it won a big case in Massachusetts thanks to Section 230. That case was appealed and the appeals court also gave Backpage a solid 230 win. And then, in a different case, where Cook County Illinois sheriff Thomas Dart strong-armed credit card companies into no longer doing business with Backpage, the 7th Circuit appeals court slammed him for doing so, pointing out that it was a clear 1st Amendment violation, and also citing Section 230.
So far, the only real win against Backpage was an odd ruling from last year in Washington state court, which basically argued that a case shouldn’t be dismissed outright, but could proceed in spite of 230.
Bizarrely, this new criminal case against Backpage’s execs uses the illegal act by Sheriff Dart to its advantage.
In July 2015, major credit cards stopped processing BACKPAGE transactions and
BACKPAGE began to allow users to post Adult ads for free. Nonetheless, BACKPAGE
has continued to collect fees for promoted or sponsored ads and created complex
payment processing procedures to avoid detection from financial institutions.
Note how the document conveniently leaves out the fact of why they stopped processing, and how that was later found to be unconstitutional? Also, check out the “complex payment processing procedures to avoid detection from financial institutions” line. You know what that was? It was Bitcoin. That’s it. After Dart illegally pressured credit cards into no longer working with Backpage, they started allowing people to pay with Bitcoin, because that was basically the only option left to stay in business. To paint that as some sort of nefarious attempt to “avoid detection” is ludicrous.
The declaration also involves interviews with various users of the site, and even then, some of them work against the case, including one underage user of the site who flat out says that it’s not Backpage’s fault, since they have no idea how old she is:
I asked A.C. if she knew of any policy restrictions for
advertising on BACKPAGE. A.C. said she knew there was a restriction about posting
adult ads on their website. I asked if she ever encountered a problem posting in the adult
section on BACKPAGE as a minor. She said, “Well no, because how are they supposed
to know I’m underage?”
And, again, that’s the very point of CDA 230. Platforms have no way of knowing such details and any attempt to hold them liable for not knowing what they couldn’t actually know would be ridiculous and crippling for basically every internet platform (including our own).
This lawsuit is bad news. It should almost certainly be tossed out, but it appears Harris is more focused on using the publicity to move up a notch to her next job. Her grandstanding press release is basically completely ridiculous:
?Raking in millions of dollars from the trafficking and exploitation of vulnerable victims is outrageous, despicable and illegal,? said Attorney General Harris. ?Backpage and its executives purposefully and unlawfully designed Backpage to be the world?s top online brothel. Thank you to the California Department of Justice Special Agents, investigators, attorneys, and our partners in law enforcement who have worked tirelessly to bring the operators of this online brothel to justice and protect thousands of victims of trafficking.?
That’s ridiculous. First, they didn’t design it that way. The fact is that various State AGs have harassed lots of other sites into shutting down and had all the traffic flow to Backpage. So perhaps she should be arresting herself for promoting Backpage to this position. Also, that history should show that this won’t do a damn thing to “protect thousands of victims of trafficking.” They’ll just move on to the next site.
If Harris really wanted to protect victims of human trafficking she’d go after the people actually doing the trafficking. And you know the best way to find them? Maybe to use Backpage as a tool to track them down. But killing Backpage will just make that harder, allowing traffickers to move on to other venues that may be a lot less willing to cooperate with law enforcement.
I know that there will be some people who will jump in on the comments and argue that because so many ads on Backpage were clearly for prostitution that Backpage must be guilty. But that’s not how the law works, and it’s not how the law should work. You blame the people actually doing the crime, not the people who made the tools they use. But I guess when Kamala Harris and Ken Paxton want to grandstand, it’s easier to go after the internet companies than actual human traffickers.
Filed Under: carl ferrer, cda 230, grandstanding, james larkin, kamala harris, ken paxtron, michael lacey, prostitution, section 230