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Original version based on [1].

[edit]

Legal challenges to the operation of Backpage ultimately set the fate of Backpage, but also become a critical facet to interpretation and case law related to Section 230 of the Communications Decency Act and future legislation related to it.

Leading events

[edit]

The adult section of Backpage had been subject of critics and law enforcement since as early as 2010 as it was reported to be a hub for sex trafficking of both adults and minors, which is generally illegal under both federal and state law. These ads typically were placed as offers of "escort services" by a procurer offering the services of the women or children they owned.[1][2][3][4][5][6][7] Backpage stated that it attempt to block any ads placed that were engaged in sex trafficking[11] and reported those to the National Center for Missing & Exploited Children (NCMEC), which in turn notified law enforcement.[12][13]

In the late part of the 2000s, a number of high profile murders known as Internet homocides occurred, tied to posts made on Craigslist that either allowed the murderer to draw the victim to their address, or gave the address of the victim to the murderer. Coverage of Craigslist's policies on posting also revealed its special "Erotic Services" which was intended by the site for legal sex services between consenting adults such as phone sex, as well as to keep such ads out of other sections on the site and behind a age-warning screen.[8] Under scrutiny of several states and concerned groups, Craigslist renamed "Erotic Services" to "Adult Services" in May 2009, with each ad being reviewed by Craigslist staff before posting to make sure it met the restrictions against prostitution, and to encourages users to report dubious ads.[9] A year later, state attorneys asserted that despite Craigslist's moderation, Adult Service ads were still masking their language as to solicit prostitution, exploitation, and sex trafficking.[10] While soliciting such services is nearly illegal in all parts of the United States, Craigslist, Backpage, and other sites were protected by Section 230 that protected them from liability from any content posted by its uses, so few legal options were available to the states beyond voicing complaints.[11] By September 2010, Craigslist publicly announced they had chosen to shutter the Adult Services section in the United States, and in international markets by the end of 2010. As a result, Backpage saw an increase in use in ads during this same period;[12] it was estimated that US$44 million in advertising shifted to Backpage, and by 2011, Backpage represented 30 to 35% of Village Voice Media (VVM)'s revenue.[13]

One of the first lawsuits against Backpage was filed in 2010 by a plaintiff known as M.A. (as she was a minor still at the time) against Village Voice Media (VVM), shortly after Craigslist had shuttered the Adult Services section. While M.A.'s procurer was already convicted on charges of child pornography that he had used to place the ad onto Backpage, but M.A.'s lawsuit against the VVM stated that the company should have been aware she was a minor in the photos and that the photos were taken specifically for use in sex trafficking. Because of this, the suit charged that Backpage should not be covered by Section 230.[14] Backpage argued for dismissal of the case on the basis of Section 230, with a federal judge granting its dismissal less than a year after filing.[15]

The failure of M.A.'s case to achieve any action against Backpage led activists such as the Polaris Project and The New York Times's Nicholas Kristof to get legislation action that would hinder Backpage's ability to offer sex trafficking services.[15] Washington was the first state to introduce legislation in 2012 aimed to limit sex trafficking on Backpage. Washington Senate Bill 6521 made it a felony for any website to knowingly publish an ad for sex trafficking involving a minor to take place in Washington, with the site operator facing a minimum of five years in prison and US$10,000 for any violations.[15] Backpage immediately sued to block enforcement of the law after it was passed, citing that the law would require not only them, but any other service provider regardless of where they were located to review all third-party content before it was published to make sure it was not child exploitation within Washington, which realistically no content provider would likely be able to do. Backpage was joined by the Electronic Frontier Foundation and Eric Goldman on the argument on the burden of the law on service providers, as well as from sex workers that have found selling their legal services online to be much safer than on the street and would be more at risk with such laws in place.[15] Backpage successfully received a preliminary injunction from allowing S.6521 from being enforced,[16] and subsequently had received summary judgement in their favor on the basis that the law was too vague as to potentially apply to legal acts unrelated to sex acts, and that it overrode Section 230 protections.[17] The state opted to forgo any further appear.[18]

Shortly after the Washington law was blocked, a new lawsuit was filed by three Jane Does from Tacoma, Washington in July 2012 against Backpage asserting the site was responsible in their sex trafficking. Their procurer had posted their services in 2010 while they were minors, and was later convicted on child rape and sexual abuse in 2011. The plaintiffs asserted the Backpage's policies did little to deter anyone from offering sex trafficking.[19] Backpage attempted to dismiss the complaint on the Section 230 basis as it had before, but the lower court denied the request, and Backpage appealed to the Washington Supreme Court. There, in September 2015, the Court denied Backpage's appeal, in that while Section 230 would cover the case where Backpage had no role in developing the user content, that they found sufficient evidence that Backpage's rules related to user posts encouraged implicit means to encourage sex trafficking, and thus Section 230 protections may not apply, and thus the case again them should proceed.[20]

Adult section

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On January 9, 2017, Backpage completely eliminated its adult section containing different subcategories of various sex work. The company suspended its adult listings following accusations by a United States Senate subcommittee of being directly involved with sex-trafficking and the sexual exploitation of minors.[21] However, many escorts and erotic masseuses admit to moving their ads to the "massage" and "women seeking men" listings.[22] Prostitution is illegal throughout the United States, except for some counties in Nevada.

Kristen DiAngelo, executive director of the Sex Workers Outreach Project of Sacramento, criticized the shutdown, questioning how many sex workers across the United States no longer had a way to support themselves. Backpage allowed for sex workers using the site to post bad date lists, screen clients and communicate with other sex workers to ensure a safer experience.[23] Activists argued that the move would force some of the site's users to work on the street instead.[24]

Controversy

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As early as 2011 critics and law enforcement began accusing Backpage of being a hub for sex trafficking of both adults and minors.[1][2][3][4][5][6][25] despite claims by the website that it sought to block ads suspected of child sex trafficking or prostitution[11] and reported some per month to the NCMEC, which in turn notified law enforcement.[12][13]

In 2015 Backpage lost all credit card processing agreements as banks came under pressure from law enforcement, leaving Bitcoin as the remaining option for paid ads.[citation needed]

Backpage supporters claimed that by providing prompt and detailed information about suspicious postings to law enforcement, including phone numbers, credit card numbers and IP addresses, the website helped protect minors from trafficking. They contended that shutting down Backpage would drive traffickers to other places on the internet that will be less forthcoming about crucial information for law enforcement.[5][26][27]

Numerous writers, non-governmental organizations ("NGO's") legal experts and law enforcement officials including the Electronic Frontier Foundation,[28][29] the Internet Archive,[30] and the Cato Institute,[31] argued that that the freedoms and potentially the internet itself would be threatened if this type of free speech is prohibited on Backpage. They cite both First Amendment rights of free speech guaranteed in the Constitution as well as Section 230 of the Communications Decency Act,[32] which holds that service providers were not liable for content produced by third parties.[32][33]

In 2012, at the behest of a number of NGO's including Fair Girls and NCMEC, Fitzgibbon Media (a well-known progressive/liberal public relations agency) created a multimedia campaign to garner support for the anti-Backpage position. They enlisted support from musicians, politicians, journalists, media companies and retailers. The campaign created a greater public dialogue, both pro and con, regarding Backpage.[34] In 2015, Fitzgibbon Media was closed due to multiple allegations of sexual harassment and abuse by Fitzgibbon owner Trevor Fitzgibbon.[35] Some companies including H&M, IKEA, and Barnes & Noble canceled ads for publications owned by Village Voice Media. Over 230,000 people including 600 religious leaders, 51 attorneys general, 19 U.S. senators, over 50 non-governmental associations, musician Alicia Keys, and members of R.E.M., The Roots, and Alabama Shakes petitioned the website to remove sexual content.[4] New York Times columnist Nicholas Kristof authored a number of columns criticizing Backpage,[36][37][38] to which Backpage publicly responded.[39]

In 2012, Village Voice Media separated its newspaper company, which then consisted of eleven weekly alternative newspapers and their affiliated web properties, from Backpage, leaving Backpage in control of shareholders Mike Lacey and Jim Larkin. Executives for the spinoff holding company, called Voice Media Group (VMG) and based in Denver, raised "some money from private investors" in order to purchase the newspapers;[40] the executives who formed the new company were lower-ranked than Lacey and Larkin.[41] In December 2014, Village Voice Media sold Backpage to a Dutch holding company. Carl Ferrer, the founder of Backpage, remained as CEO of the company.[42] Michael Hardy of the Texas Observer stated that since Lacey and Larkin remained at Backpage, "it would be more accurate to say that Backpage spun off Village Voice Media."[41]

[edit]

Beginning in 2011 a number of legal challenges were brought in attempts to eliminate the adult section of Backpage or shut down the website entirely. Backpage successfully argued that the First Amendment protections of free speech would be compromised by any restriction on postings by individuals on the Backpage website.

Section 230 of the Communications Decency Act of 1996 (CDA) served as an additional cornerstone in the defense. Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This portion of the CDA was drafted to protect ISPs and other interactive service providers on the Internet from liability for content originating from third parties.[43] The enactment of this portion of the CDA overturned the decision in Stratton Oakmont, Inc. v. Prodigy Services Co. in which Prodigy was deemed by the court to be a publisher and therefore liable for content posted on its site.[43] Many observers have credited the passage of section 230 of the CDA as the spark that ignited the explosive growth of the internet.[32] The protection afforded to website owners under section 230 was upheld in numerous court cases subsequent to the passage of the legislation in 1996 including Doe v. MySpace Inc., 528 F.3d 413 (5th Cir. 2008) and Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. October 20, 2009)

Alleged victims

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On April 9, 2018, the US Department of Justice's indictment against Backpage was unsealed. It contains details about 17 alleged victims who range from minors as young as 14 years old to adults, who were allegedly trafficked on the site while Backpage was knowingly facilitating prostitution. One 15-year-old is alleged to have been forced to do in-calls at hotels. A second teenager was allegedly told to "perform sexual acts at gunpoint and choked" until she had seizures, before being gang raped. A third victim, advertised under the pseudonym "Nadia" was stabbed to death, while a fourth victim was murdered in 2015, and her corpse deliberately burned. The lawyer for Backpage operations manager Andrew Padilla stated that his client was "not legally responsible for any actions of third parties under U.S. law. He is no more responsible than the owner of a community billboard when someone places an ad on it".[44][45]

In October 2018, a Texas woman sued Backpage and Facebook, claiming she had been sex trafficked on Backpage by a man who lured her into prostitution by posing as her friend on the social media network.[46]

On April 15, 2019, a Wisconsin man was convicted on federal sex trafficking charges over victims who he brought across state lines, forced into prostitution and advertised on Backpage.[47]

On April 29, 2019, a Florida former middle school teacher was sentenced to 10 years in federal prison for buying sex with a 14-year-old girl who was advertised on Backpage.[48]

Arrest of CEO and corporate officers

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On October 6, 2016, Texas Attorney General Ken Paxton and California Attorney General Kamala Harris announced that Texas authorities had raided the Dallas headquarters of Backpage.com and arrested CEO Carl Ferrer at the George Bush Intercontinental Airport in Houston on felony charges of pimping a minor, pimping, and conspiracy to commit pimping. The California arrest warrant alleged that 99% of Backpage's revenue was directly attributable to prostitution-related ads, and many of the ads involved victims of sex trafficking, including children under the age of 18. The State of Texas was also considering a money laundering charge pending its investigation.[49][50] Arrest warrants were also issued against former Backpage owners and founders Michael Lacey and James Larkin. Lacey and Larkin were charged with conspiracy to commit pimping.[51][52]

Backpage general counsel Liz McDougall dismissed the raid as an "election year stunt" which wasn't "a good-faith action by law enforcement", and said that the company would "take all steps necessary to end this frivolous prosecution and will pursue its full remedies under federal law against the state actors who chose to ignore the law, as it has done successfully in other cases."[53] Backpage also accused California attorney general Kamala Harris of an illegal prosecution.[54]

On October 17, attorneys for Ferrer, Larkin and Lacey, sent a letter to Harris asking that all charges against their clients be dropped.[55] Harris refused.

On December 9, 2016, Superior Court Judge Michael Bowman dismissed all the charges in the complaint, stating that: "...Congress has precluded liability for online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.”[56] [check quotation syntax]

On December 23, 2016, the state of California filed new charges against Backpage CEO Carl Ferrer and former Backpage owners Mike Lacey and Jim Larkin accusing them of pimping and money laundering.[57] Lawyers for Backpage responded that the charges rehashed the earlier case that had been dismissed.

Since April 2015, the U.S. Senate Permanent Subcommittee on Investigations ("PSI") has been investigating Backpage.com as part of a stated overall investigation of human trafficking. After a voluntary, day-long briefing and interview provided by the company's General Counsel, PSI followed up with a subpoena to Backpage.com demanding over 40 categories of documents, covering 120 subjects, regarding Backpage's business practices. Much of the subpoena targeted Backpage's editorial functions as an online intermediary. Over the ensuing months, Backpage raised and PSI rejected numerous objections to the subpoena, including that the subpoena was impermissibly burdensome both in the volume of documents PSI demanded and in its intrusion into constitutionally-protected editorial discretion. PSI subsequently issued a shorter document subpoena with only eight requests but broader in scope and also targeting Backpage.com's editorial functions. Backpage.com continued to object on First Amendment and other grounds.

PSI applied in March 2016 for a federal court order to enforce three of the eight categories of documents in the subpoena. In August 2016, the U.S. District Court in D.C. granted PSI's application and ordered Backpage to produce documents responsive to the three requests.[58]

Backpage immediately filed an appeal and sought a stay, which the district court denied, then filed emergency stay petitions with the U.S. Court of Appeals for the D.C. Circuit, and Supreme Court. Each appellate court issued temporary stays to consider whether to grant a stay pending appeal,[59] but eventually denied the emergency stay requests,[60] However, the D.C. Circuit agreed to expedite the appeal, and one of its judges who considered the emergency stay said he would have granted it. Backpage has continued to pursue its appeal despite producing thousands of documents to PSI pursuant to the District Court order. PSI scheduled a Subcommittee hearing regarding Backpage.com for January 10, 2017.

Also on January 9, 2017, prior to its scheduled hearings on Backpage the next day, the PSI released a report that accused Backpage of knowingly facilitating child sex trafficking.[61][62]

Shortly thereafter, Backpage announced that it would remove its adult sections from all of its sites in the United States. Backpage said it was taking this action due to many years of continuing acts by the government to unconstitutionally censor the site's content via harassment and extra-legal tactics and to make it too costly to continue its publishing activities.[63][64]

In late March 2018 and early April 2018, courts in Massachusetts and Florida affirmed that Backpage's facilitation of sex trafficking fell outside of the immunity granted by Section 230 safe harbors. The latter ruling argued that because Backpage "materially contributed to the content of the advertisement" by censoring specific keywords, it became a publisher of content and thus no longer protected.[65][66]

On April 9, 2018, the US Department of Justice's indictment against Backpage was unsealed.[67][44] The 93 charges included "Crimes of conspiracy to facilitate prostitution using a facility in interstate or foreign commerce, facilitating prostitution using a facility in interstate or foreign commerce, conspiracy to commit money laundering, concealment money laundering, international promotional money laundering, and transactional money laundering."[68][69] According to prosecutors, the seven people charged in the indictment are: Michael Lacey of Paradise Valley, Arizona; James Larkin of Paradise Valley, Arizona; Scott Spear of Scottsdale, Arizona; John E. "Jed" Brunst of Phoenix, Arizona; Daniel Hyer of Dallas, Texas; Andrew Padilla of Plano, Texas; and Jaala Joye Vaught of Addison, Texas.[68][70]

Seizure

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Screenshot of the webpage on April 13, 2018, following the seizure of Backpage a week earlier

On April 6, 2018, Backpage was seized by the United States Department of Justice, and it was reported that Michael Lacey's home had been raided by authorities.[71] Lacey was charged with money laundering and violations of the Travel Act.[72][73][74][75] Artist Nahshon Dion Anderson regularly advertised erotic massage and prostate massage for over a decade. She used earnings to fund her creative writing career. After Backpage closed Nahshon discussed what loosing it meant. In an interview using her alias Joy she stated, "it was like sitting on an oil well and it was just gushing and gushing, the amount of money I was making." [76]

A study conducted one year after Backpage was shut down found that the website had owned a virtual monopoly on Internet prostitution. The report Childsafe.AI, found that demand remains lower as sex trafficking has become more difficult and less profitable on the internet.[77]

Guilty pleas

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On April 12, 2018, Carl Ferrer, the chief executive officer (CEO) of Backpage pleaded guilty to both state and federal charges, including but not limited to conspiracy to facilitate prostitution and money laundering.[78] He also agreed to a plea deal in which he will testify against other alleged co-conspirators, such as but not limited to founders Michael Lacey and James Larkin.[79][80][81] Backpage also pleaded guilty to human trafficking.[79][80][81]

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