Is Backpage.com a Champion of Web Freedoms or a 'Dystopian Hell'?

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Washington County Attorney Peter Orput says his team in Minnesota has found juvenile sex-trafficking victims by combing through Backpage.com’s escort ads.
Washington County Attorney Peter Orput says his team in Minnesota has found juvenile sex-trafficking victims by combing through Backpage.com’s escort ads. Photo: Ackerman + Gruber for The Wall Street Journal

Authorities in Stillwater, Minn., have rescued five sex-trafficking victims aged 13 through 17 in recent months by combing through classified ads for “escorts” on Backpage.com.

Clues in photos accompanying ads were sometimes obvious, officials said: teddy bears, toys, stuffed animals. With more than 20,000 escort ads appearing on Backpage this year for the Minneapolis-St. Paul area alone, officials figure they miss many trafficked children. “We’re just culling the herd, taking the easy ones,” said Peter Orput, the Washington County Attorney, who calls Backpage a “dystopian hell.”

Mr. Orput may owe his heartbreaking work in part to federal law and Silicon Valley. Over the roughly six years since Backpage became notorious for escort ads that often appear to be thinly veiled prostitution solicitations, the site has deflected multiple legal and political attacks, shielded by the First Amendment and a 20-year-old U.S. law designed to foster the internet back in its infancy.

Backpage has also found allies among major internet associations and tech companies that worry legal and legislative challenges to the site could breach their own protections.

“These are really important battles to preserve the policy framework that supports all internet companies,” Emma Llanso, an official at internet-freedom group Center for Democracy and Technology, said of fending off legal attacks on Backpage. It was among groups filing briefs supporting Backpage in several suits and arguing to Congress against proposed escort-ad regulations. This year, the group formed an advisory council that includes representatives of companies such as Alphabet Inc. GOOGL 1.31 % ’s Google, Facebook Inc., FB 0.54 % Microsoft Corp. MSFT 0.55 % , Apple Inc. AAPL 0.31 % and Amazon.com Inc. AMZN 1.07 %

Google and Facebook also have lobbied to narrow bills aimed largely at cracking down on Backpage, according to congressional aides. Lobbyists for Google weighed in on one version of a bill, which later died, that would have required firms hosting adult ads to determine ages of people in ads.

Technology companies The Wall Street Journal contacted declined to provide on-record comment on their support of Backpage’s cause or didn’t respond to inquiries.

Backpage general counsel Elizabeth McDougall said court decisions show escort-service advertising online is legal and efforts to curtail Backpage violate the First Amendment. “I feel very safe and confident in our positions,” she said. “I believe that the other industry participants and other industry organizations likely share our beliefs in this regard.” She said Backpage reviewed its records and couldn’t verify Stillwater authorities rescued minor sex-trafficking victims based on Backpage ads.

The site has scored favorable rulings in a half-dozen major cases involving attempted crackdowns by state and local officials as well as some suits by trafficking victims alleging civil wrongdoing.

Success in court

Backpage’s emergence as a champion of internet freedoms is part of a growing rift over how far those freedoms should go—and just who should enjoy them. While there are many other sites offering adult-services ads, Backpage has become the focus of the debate.

“I don’t know why they can get away with it,” a Massachusetts woman who sued Backpage in 2014 told the Journal. The woman, called “Sara Loe” in court papers, charged that traffickers marketed her daughter, then 15, in ads describing her as “new,” “sweet” and “playful,” codes for underage, according to the suit, which alleged Backpage was liable for civil wrongdoing.

A federal appeals court in March threw out that suit, agreeing with Backpage that it was protected by a provision of the Communications Decency Act of 1996 absolving websites of most responsibility for user posts. Ms. McDougall referred to the judges’ statement that the allegations were “shot through with conjecture.”

The 1996 act protects internet services that host or republish third-party speech from liability under state civil and criminal laws, and many kinds of federal law. In general, it treats internet services similarly to how laws treat common carriers such as phone companies. The act is widely credited with encouraging the rise of web services and sites ranging from YouTube to Yelp.

Nacole (last name withheld) sued Backpage in Washington state in 2012, after her daughter ran away to Seattle at age 15 and was recruited by a trafficker who marketed her on the website.
Nacole (last name withheld) sued Backpage in Washington state in 2012, after her daughter ran away to Seattle at age 15 and was recruited by a trafficker who marketed her on the website. Photo: Rick Scibelli, Jr. for The Wall Street Journal

Tech-industry support for Backpage confounds anti-trafficking groups, said Eliza Reock, an official at Shared Hope International, one such group. “The last thing we’d want to do is infringe on established freedoms,” she said, but “the internet freedom groups have been so strong in their opposition that it almost ends with people throwing up their hands.”

Backpage’s Ms. McDougall said media and others “almost never investigate” whether Backpage helped in a trafficking investigation or whether other sites ran similar ads. Backpage carefully screens ads and cooperates promptly with police, she said, adding: “We are able to assist with rescues and arrests and convictions, and I am not going to stop doing that.”

After Congress passed a 2015 law targeting some sex-trafficking ads, Backpage sued to block it as a First Amendment violation; the suit is continuing. A federal court in November ruled Sheriff Tom Dart of Cook County, Ill., violated the First Amendment by pressuring credit-card companies to block Backpage transactions. Mr. Dart is appealing to the U.S. Supreme Court.

Backpage refused to turn over some documents to the Senate Permanent Subcommittee on Investigations, which in April 2015 started a probe of Backpage that continues, prompting a 96-0 Senate vote in March holding its chief executive, Carl Ferrer, in contempt. Backpage’s Ms. McDougall said it turned over thousands of documents until it concluded the subcommittee exceeded constitutional boundaries. Mr. Ferrer declined to comment.

Backpage’s lineage traces to 1970, when a young Vietnam War protester, Michael Lacey, co-founded the Phoenix New Times and helped turn it into an alternative-weekly chain eventually named Village Voice Media. At peak, it comprised 17 papers including New York’s Village Voice.

Mr. Lacey didn’t respond to requests for comment. In a 2014 radio interview, he said he had a “problem with authority” and channeled it into the chain he built with business partner Jim Larkin. Mr. Larkin didn’t respond to attempts to reach him. Messrs. Lacey and Larkin sold their Backpage interest to unidentified owners last year. The price wasn’t disclosed.

Left to right: Jim Larkin and Mike Lacey, founders of Phoenix New Times, some time around 2007.
Left to right: Jim Larkin and Mike Lacey, founders of Phoenix New Times, some time around 2007. Photo: Giulio Sciorio

The firm in 2004 started Backpage, a classified website that includes non-adult listings. When Craigslist shut its adult-services listing in 2010, Backpage’s adult ads soared. Soon, 21 state attorneys general wrote urging it to close its adult section. Instead, Backpage announced it would increase staff to identify ads explicitly offering prostitution or trafficking in minors.

With thousands of ads daily, many using code words, Backpage scrambled to respond, emails obtained by Senate investigators show. Managers listed red-flag terms, such as “PSE” for “porn-star experience,” banned nudity and barred talk of short-term rates, emails show; a look at the site suggests the bans largely continue.

A 2015 Senate report said it found evidence that, for a time, Backpage decided “moderators” who scrutinized ads could edit offending terms out of many ads. To critics, that essentially helped pimps shape ads to fly under the legal radar, a charge Backpage denies.

The report said Backpage relied on some distinctions that appeared to be aimed more at avoiding prosecution than blocking prostitution. Backpage barred references to The Erotic Review, a site where customers rate prostitutes who are assigned numbers, as in “TER 123456.” Backpage banned TER numbers but allowed numbers without a “TER” prefix, the report said. The practice continues, a look at the site suggests. Ms. McDougall said: “Six-digit or other random number combinations are not an indicator of prostitution or sex trafficking and may be included in ads for many lawful services.”

Won’t ‘roll over’

In 2011, 51 state and territorial attorneys general sent a letter demanding Backpage shut its adult category.

In a tense meeting that year between Backpage and the National Center for Missing and Exploited Children, an official of that anti-trafficking group urged Backpage to do more to block prostitution ads.

Mr. Lacey said Backpage would do all it could to keep minors out of ads, but “we are not going to roll over” and close Backpage’s adult section, according to a memo from the anti-trafficking group turned over to the plaintiffs’ lawyers in a 2012 Washington-state civil suit against Backpage. His partner Mr. Larkin, the memo said, “was basically positive and concerned.”

Plaintiffs in the suit, now in discovery, said they were trafficked as minors through Backpage, accusing it of sexual exploitation of children, vicarious liability and other wrongdoing. Ms. McDougall declined to discuss Washington-state legal cases. In court papers, Backpage has denied the civil complaint’s allegations and said it was shielded by internet freedoms.

One who sued Backpage in 2013 in a pending Washington-state civil case said she went with a friend to a theme park for her 15th birthday. On social media, they learned of a nearby party where they agreed to be photographed in skimpy attire. The young woman, “O.L.” in court papers, soon realized the hosts were posting her on Backpage.

They held her for almost a week, she said, forcing her into sex with men until her mother rescued her. Backpage “just made it easy for them,” she said of the perpetrators, who were convicted of juvenile trafficking. In court papers in the civil case, Backpage has denied the complaint’s allegations.

Messrs. Lacey and Larkin sold the newspapers in 2012, keeping Backpage. That year, they brought in Ms. McDougall, once a Craigslist outside lawyer. She sought to highlight Backpage’s ability to be part of the solution, arguing online technology could fight trafficking by providing authorities more information. Backpage has a ring binder full of thank-you messages from police investigators, who often use information Backpage provides to pursue traffickers and sometimes are friendly with the firm. “Can’t do this without your help,” one FBI agent wrote after a 2015 rescue.

Backpage general counsel Elizabeth McDougall says court decisions show escort-service advertising online is legal and efforts to curtail Backpage violate the First Amendment.
Backpage general counsel Elizabeth McDougall says court decisions show escort-service advertising online is legal and efforts to curtail Backpage violate the First Amendment. Photo: Seth Wenig/Associated Press

Backpage has donated ad space and almost $1 million to Children of the Night, which provides residential care for victims. “They are First Amendment people, they’re not pimps,” said Lois Lee, the group’s founder.

Meanwhile, lawmakers began considering more aggressive steps in the broader tech industry. Reps. Marsha Blackburn (R., Tenn.) and Carolyn Maloney (D., N.Y.) wrote to Google in 2012, asking what it was doing to stop sex-trafficking ads on its site. Google told lawmakers it had a “zero-tolerance” policy on sex trafficking and was working “tirelessly” on catching “bad ads.” Google said it was developing new technologies to identify possible victims on websites.

In 2013, 49 state attorneys general asked Congress to take back much of the legal immunity it gave internet companies in 1996. Tech firms fought back. A coalition of internet-business groups wrote to the House Judiciary leadership in 2014 warning lawmakers not to “chip away” at protections “in pursuit of specific bad actors, no matter how heinous.”

D.C. lobbyists

At least half a dozen Washington lobbying firms listed legislation relating to sex trafficking as one issue they were handling on Google’s behalf in 2014. Grayling DC disclosed its work for Google was to “discuss the impact…on internet companies” of the far-reaching Senate version of a bill known as the SAVE Act, which would have required firms hosting adult ads to determine ages of people in ads and barred code words. Opponents including the Center for Democracy and Technology’s Ms. Llanso warned it would create major burdens for companies. It eventually died.

Lawmakers instead drafted narrower legislation giving federal prosecutors added leeway to pursue sex-trafficking-ad purveyors. House members made the bill less likely to snare ordinary internet firms but also potentially less likely to catch infractions. One change required prosecutors prove a site knew a trafficking victim was underage before charging the business. A version of the bill passed in 2015. Backpage sued to declare it unconstitutional because “the law as passed targets Backpage,” said Ms. McDougall.

The mother of one victim in the 2012 Washington-state civil suit against Backpage told the Journal she thinks lawmakers avoid bigger changes “because you have big internet, you have Facebook, you have Amazon, you have all these other companies that have high powered lobbyists that think somehow by changing it, it is going to affect them.” The woman, whose first name is Nacole, said her daughter, “J.S.” in court papers, ran away at age 15 to Seattle, where a trafficker recruited her and marketed her on Backpage. The perpetrator was convicted of juvenile trafficking.

In 2015, major payment-processing companies stopped processing payments to Backpage. When Backpage then made those ads free, the Senate investigation found, its adult-section ad volume soared. Users now can pay for upgraded ads using bitcoin or by buying “credits” bought with checks, cash or money orders. Senate investigators uncovered a confidential analysis valuing Backpage at about $600 million before the payment-processing companies cut it off. Backpage declined to comment on the Senate’s financial estimates.

Washington County Attorney Peter Orput, here in the county law-enforcement center in Stillwater, Minn., calls Backpage a ‘dystopian hell.’
Washington County Attorney Peter Orput, here in the county law-enforcement center in Stillwater, Minn., calls Backpage a ‘dystopian hell.’ Photo: Ackerman + Gruber for The Wall Street Journal

County attorney Mr. Orput said one adult has been charged in connection with the child sex-trafficking cases and others are under investigation. Backpage provides “important information” in investigations involving its ads and usually does it quickly, said Imran Ali, one of Mr. Orput’s prosecutors.

Still, Backpage “will look you in the eye and tell you they are part of the solution—I don’t believe that for a second,” said John Choi, county attorney in neighboring Ramsey County, who has helped lead Minnesota efforts against juvenile trafficking. “They are the platform by which children are bought and sold.”

John D. McKinnon at john.mckinnon@wsj.com



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