On October 6, the CEO of Backpage.com Carl Ferrer, along with former executives Michael Lacy and James Larkin, were arrested in California on charges alleging involvement in prostitution, including conspiracy to commit pimping of a minor. The classified ad site had been under investigation by the California DOJ for three years and on the radar of anti-human-trafficking advocates for at least a decade. Citing the importance of these arrests, Polaris has recorded nearly 2,000 incidents of sex trafficking that involved Backpage and further states that the National Center for Missing and Exploited Children told a Senate subcommittee “that 71 percent of all suspected child sex trafficking reports that it receives have a link to Backpage.”
Despite numerous claims—including by prominent digital rights activists—that Backpage has exclusively operated as a neutral site hosting user-generated classified ads in both “adult” and non-“adult” categories, the arrest warrant highlights include the following:
- that well over 90% of Backpages’s tens of millions of dollars in revenue came from the “Adult” ads, which have clear links to both consensual and forced prostitution.
- that Backpage became known by those in the commercial sex trade to be the “online brothel.”
- that Ferrer and his associates purposely grew the “Adult” ad trade both domestically and abroad.
Perhaps the most damming evidence is that Ferrer and his associates allegedly used Backpage data to create what the warrant calls “escort directories,” sites that are in no way user-generated, but which are designed solely to drive customers for commercial sex to Backpage ads. Additionally, 7 of the 8 witnesses interviewed about their use of Backpage ads were identified in the warrant as “victims of trafficking,” some forced into prostitution before the age of 14.
Section 230 of the Communications Decency Act
Section 230 of CDA, which was passed in 1996, is the legal statute which states that online service providers shall not be treated as “publishers.” Site operators acting in good faith, and which are driven in part or in whole by user-generated content, are shielded from litigation stemming from material posted by a third party that might otherwise be actionable. In a nutshell, what the DMCA “safe harbor” does for OSPs and copyright infringement, CDA 230 does for just about every other kind of content.
In regard to a 2015 civil litigation filed against Backpage by three women—all allegedly victims of trafficking—the Electronic Frontier Foundation argued that CDA 230 required the dismissal of their claim against the site. As stated by Sophia Cope on September 8, 2015, “Where a website clearly participated directly in developing the alleged illegal content, immunity from suit is properly lost. But in cases like this, where the provider has allegedly colluded by the apparent implications of website design and content policies, Section 230 requires that the complaint be dismissed.”
Although this was not the EFF’s only statement on the matter, it was the crux of that organization’s defense of 230 in regard to the Backpage litigation. This view was upheld in Massachusetts District Court and in the First Circuit Court of Appeals but was rejected by the Washington State Supreme Court, which allowed the civil suit to proceed.
When the EFF argued that CDA 230 was grounds for dismissal of the plaintiffs’ civil suit against Backpage this a) was within the purview of that organization’s mission; and b) stopped well short of defending Backpage itself when there was a reasonable probability that the ongoing criminal investigation could reveal that the owners were implicated in illegal activity.
Taking the Free Speech Thing Too Far
Where the EFF crossed that line, it appears, was on July 6, 2015, when director of activism Rainey Reitman strayed far beyond the scope of judicial application of CDA 230 and engaged in speculation to defend Backpage on free speech grounds. This was in response to a decision by major payment processors—Visa, Master Card, & Amex—deciding in that month to cease processing transactions for Backpage. Reitman called this “caving to government pressure,” accusing the processors and law enforcement of stifling free speech. She wrote …
“We don’t need Visa and MasterCard to play nanny for online speech. Payment processors and banks shouldn’t be in the position of deciding what type of online content is criminal or enforcing morality for the rest of society. For one thing, their businesses haven’t been designed to analyze the legal and societal issues at play in various forms of online expression.”
She further states (and this is the paragraph that gets me):
“Backpage.com can be used to sell an old refrigerator, find a new apartment, post about new community workshops, find a job, and offer many other services and goods. It also hosts an “adult” section of the site, where some people advertise escort services or try to connect with people who have similar sexual interests. This “adult” section requires visitors to confirm they are at least 18 years of age and allows users to get resources for reporting cases of suspected sexual exploitation with one click.”
Not only does Reitman engage in unfounded speculation about Backpage’s innocence—which seems like an unnecessarily dumb move for the EFF to make—but she actually implied that the site was helping to curb exploitation. This particular rhetoric will sound familiar to copyright interests who’ve been listening to the Holy Trinity of infringement defenses for years. 1) We don’t know what’s happening on our site. 2) We host material that isn’t infringing. 3) Anyway, we’re helping you.
As the arrest warrant states, the non-“Adult” section of Backpage—the part innocently selling refrigerators and such—is mostly supported by free ads while the “Adult” section is supported by paid ads. The warrant further states that from January 2013 to March 2015, 99% of the site’s revenue (which is in the tens of millions) came from the “Adult” section but that this ratio dropped to 90% in May of 2015, apparently after the major payment processors pulled their accounts.
Any reasonable person could deduce that the paid part of Backpage’s business was worth money while the free part was not; any reasonable person could observe that Backpage hosted a very large volume of ads for the commercial sex trade; any reasonable person could know that at least a portion of the commercial sex trade involves trafficked victims, including minors; and any reasonable person could know that the company was under investigation. Given these plainly observable data, it’s hard to fathom that the EFF would allow Ms. Reitman to publicly assume Backpage’s fundamental innocence in the service of its chronic argument that everything online is protected speech. But it isn’t that hard to fathom.
Going back to the topic of “cultural capture” for a moment, I’ll stop short of accusing the EFF of knowingly defending alleged human traffickers, but I won’t stop short of accusing them of being so neck deep in their own PR bullshit, that they ended up defending alleged human traffickers for no reason.
Where Reitman really went too far down this road was when she described the “Adult” section as a place where users “try to connect with people who have similar sexual interests.” As if Backpage were more like Tinder than the “online brothel” that everyone in the commercial sex trade seems to know that it is. Those tech-utopian words connect and interest are just so friendly and Googley and social, one would never think to associate them with 13-year-olds forced by violence and threats of violence into the commercial sex trade.
Even if the folks at EFF could have reasonably convinced themselves that the owners of Backpage were not knowingly profiting from the commercial sex trade—and by extension trafficking—I think they were foolish to stray beyond commenting on anything other than the relevance of CDA 230 in a civil lawsuit. To declare, as Reitman did, that, “Backpage, however, is not engaged in human trafficking. It shouldn’t be treated as if it were,” was an assumption that not only stepped outside the EFF’s wheelhouse, but it was also an absurd logical leap that appears to have been entirely wrong.
The point, of course, is not really the EFF itself but the message they promote, which assumes that all site owners naturally maintain a veil of ignorance about the content of their sites and that all online activity is protected speech. Neither is true. At the very least, site owners can certainly know where their money is coming from, and protected speech largely pertains to state action, not private enterprise. I get why it’s easy to play this PR game with copyright infringement—because it seems like a victimless crime and because there is an amount of infringement in the digital age that rights holders are going to have to accept as unstoppable. But I should hope that there is no percentage of for-profit, violent, human exploitation that we are willing to tolerate because we’ve lost perspective on what free speech is and why it is protected.
© 2016, David Newhoff. All rights reserved.