If a publisher runs personal ads that get used in some instances for prostitution, does that make the publisher a pimp? According to Attorneys General in California and Texas, the answer is yes. Backpage.com CEO Carl Ferrer got arrested in Houston under a warrant issued by Senate candidate and California AG Kamala Harris in relation to allegations that his site collected millions while facilitating forced and underage prostitution. Texas AG Ken Paxton held a press conference hailing the arrest:
“Making money off the backs of innocent human beings by allowing them to be exploited for modern-day slavery is not acceptable in Texas,” Texas Attorney General Ken Paxton, a Republican, said in a statement.
California Attorney General Kamala Harris said that Ferrer was arrested on felony charges of pimping a minor, pimping, and conspiracy to commit pimping. He is being held in lieu of $500,000 bond and will face an extradition hearing before he can be returned to California.
“Raking in millions of dollars from the trafficking and exploitation of vulnerable victims is outrageous, despicable and illegal,” said Harris, a Democrat who is running for the U.S. Senate in next month’s election. “Backpage and its executives purposefully and unlawfully designed Backpage to be the world’s top online brothel.”
Ferrer will have some company in court. The two men with controlling interest in Backpage.com, Michael Lacey and James Larkin, have already been arrested. The two formerly owned the Village Voice and the Phoenix New Times, both of which had colorful classified-ad sections as well. The three men face as many as 22 years in prison for running the advertisements.
The bipartisan nature of the partnership between Paxton and Harris in their crusade against Backpage.com is not an anomaly. Senators Rob Portman and Claire McCaskill issued a joint statement saluting the indictment and the effort behind it as a blow against “the scourge of online sex trafficking.” This issue has produced a remarkable level of bipartisanship on Capitol Hill, and for good reason. Human trafficking, the FBI states, is the third-largest criminal activity in the world, of which sex trafficking is a major component. Visibility of this crime and the organized networks that commit them has led to more focus and resources on combating it.
However, that’s not exactly what Ferrer, Lacey, and Larkin are charged with doing. Instead, the declaration from law enforcement in California that led to the indictment allege that Backpage’s executives intentionally designed their site to profit off of that trade. It alleges that the effort by Craigslist to end access for advertising commercial adult services sent the demand to Backpage, which then “capitalized on this increased traffic by raising fees” and expanding its operations.
It also notes that one form of this expansion from Ferrer et al came in the form of sites expressly designed to offer comparative listings for escort services alone (Evil Empire and Big City). The declaration further alleges that the National Center for Missing and Exploited Children (NCMEC) have repeatedly alerted Backpage of traffickers in underage children using their platforms, as well as “numerous law enforcement subpoenas and search warrants served on Backpage for sex trafficking investigations.” Ferrer et al claimed to have a screening process to keep out prostitution, the declaration notes, but argues that the escort ads “make it plain” that they are selling prostitution.
Reason’s Elizabeth Nolan Brown calls the prosecution of Ferrer and his business partners “insane“:
Their “evidence”? It’s… insane. I don’t know how else to describe it other than that. Throughout the complaint, Fichtner uses instances of Backpage cooperating with law-enforcement and the National Center for Missing and Exploited Children in identifying and finding potential victims as evidence that Backpage profits off of exploitation. Backpage is literally rejecting—and turning over to the government—ads that may promote sex trafficking, and the government says, see! proof that sex traffickers love Backpage! Shut it down! It’s like a building owner reporting predatory activity out front and the cops arresting him and tearing up the street corner instead of tracking down the predator.
It also gives lie to the idea that this crusade against Backpage is about stopping the sexual exploitation of children and not eradicating online ads for sexual-services entirely. First, officials went after the “adult services” section on Craigslist. Then they took down sex-ad forum MyRedbook.com, the gay prostitution site Rentboy.com, and escort review forum The Review Board. Next up: Backpage. It’s simply the latest target in the U.S. government’s quixotic and cruel aim to make sex-work as hidden (and dangerous) as possible.
Nolan Brown makes point-by-point arguments against the declaration, but this one seems more pertinent than the rest:
For the record, Backpage runs hundreds of thousands of user-generated ads every day. It does not, cannot possibly, and does not claim to look at all of them before they go up, which is why it relies on automated screening processes that flag potentially suspicious ads, with these flagged ads then reviewed by actual humans. Trying to prevent people from offering illegal services (like prostitution) through such screening processes is all Backpage can realistically do, short of not existing. And it should be enough to protect it from criminal liability under federal law. Like other user-generated content and social media sites—from Craigslist to Reddit to Facebook—Backpage is theoretically shielded from liability for things users post by Section 230 of the federal Communications Decency Act.
Well, maybe — if one ignores sections (e)(1) and (e)(3) of Section 230 of the CDA:
(e) Effect on other laws
(1) No effect on criminal law
Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute. …
(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
Congress made it clear that they intended the CDA to protect providers from civil liabilities, not criminal prosecution under federal or state laws — at least in the section Nolan Brown cites. However, this case raises other questions about prosecution and free speech. Is it reasonable to charge a publication’s executives for pimping just because they run an advertising site that gets used by escort services? Is such advertising in and of itself illegal? From the declaration it doesn’t appear to be, which is why it alleges that the particular ads on Backpage and its subsidiary sites “make it plain” that sex is the commodity being sold. Furthermore, it’s hardly clear that Ferrer et al failed to cooperate as required with law enforcement when engaged by subpoena and search warrant.
In fact, this passage testifies that Ferrer himself did cooperate while investigators conducted their sting, unknown to him:
So … Ferrer removed the offending ad, and their filters blocked any additional activity from the dummy user the investigator set up. Normally that would be evidence of at least some good-faith efforts to restrict content relating to illegal activity, as was the result of the next attempt at creating another ad with explicit sexual references (page 6-7), which also failed as a result of Backpage’s filters.
Don’t get me wrong — Backpage’s business is sleazy and despicable, but it’s far from clear that it’s illegal, and it’s certainly not “pimping” in the sense usually used by prosecutors. The three defendants didn’t personally advertise for prostitution, but instead ran an online advertising service that sometimes gets used by pimps. Under this approach, CEOs of telecoms that sell “burner” phones — cheap cellphones used in significant part by criminals attempting to cover up their crimes — could be prosecuted for being accessories to those crimes, especially if they promote those phones on the basis of cheap price and disposability. This looks like prosecutorial adventurism, and its proximity to issues of speech and commerce should have Americans applying maximum scrutiny to the case.