Feds Seize Backpage After A Prolonged Run-In

A familiar target with a huge bullseye

It’s been a long time coming. After taking on the Craigslist “adult services” section, shutting down the sex-ad forum MyRedbook.com, turning the lights off on gay prostitution site Rentboy.com, and going after escort review forum The Review Board; the Feds like a shoal of piranhas turned their attention to Backpage.

Unfortunately, rather than take the easy way out (like Craigslist), Backpage fought back at Uncle Sam. Big Mistake! It took about seven years, but on April 6, 2018; the FBI left a tombstone on the Backpage site.

The backstory

The year is 2004, Craigslist is about to become a decade old, and its choke on print classifieds is tightening more than ever. One of the nation’s largest alt weekly chain decides to have a go at Craigslist, and Backpage is born.

It took a couple of years until Backpage became the major Craigslist competitor, slowly building its way up to being America’s second largest classified ads website. Classified listings ranged from autos to real estate in more than 400 U.S. cities. Backpage also had a substantial international presence.

That said, an attribute of online classifieds in general that got a knock from policymakers and many sex trafficking advocacy groups was that they, like print classifieds before them, had adult ads that were otherwise prohibited on mainstream platforms. Craigslist and Backpage both had Erotic ads categories, which were later renamed Adult Services.

Although a substantial percentage of ads in the section was for legal services such as escorts (female and trans), body rubs, sensual massage, et cetera; the section was naturally also home to thinly veiled ads disguised as legal services but posted by sex workers and pimps.

Put simply, while the majority of ads in the adult services section were perfectly legal, a good number of the classifieds were prostitution ads (prostitution is illegal in most of the country), and worse, sex ads that exploited both over-age and child sex trafficking victims.

The blowback from this revelation generated sufficient pressure to make Craigslist close its Adult Services section in 2010. Backpage didn’t follow suit.

Backpage’s obstinacy to keep its adult section open irked campaigners who wanted to see it gone. However, if keeping the category annoyed many, its decision to monetize primarily through the adult section flustered many more and didn’t earn it much sympathy. In comparison, Craigslist (CL) monetized primarily through the jobs and real estate sections. Classifieds posting on many sections across both sites (and indeed classified ads websites in general) are free.

With CL adult services category, previously the largest adult classified marketplace online, out of the way; Backpage filled in nicely and became the bogeyman. Adult, dating, and other paid ad content on Backpage increased by approximately 29%. According to a Senate report, revenue soared from $5.3 million in 2008 to $135 million in 2014. The adult section unsurprisingly made up the lion share, with it comprising more than 93% of Backpage’s ad revenue in 2011 and 99% of its gross revenue (worldwide income) for the period—January 2013 through March 2015.

In the eyes of its critics, foes, policymakers (and later law enforcement), Backpage didn’t just harbor prostitution ads and classifieds suspected of advertising minors for sexual services; it was easily the largest of its kind and technically profited from such ads.

The objective was simple: to shut Backpage down.

Legal tussle

Achieving that objective turned out to be more arduous than initially thought, as it became a years-long scrimmage with Backpage having the upper hand in the courtroom while its foes tried to win in the court of public opinion and modify the law.

Starting in 2010, Backpage and its principal figures were at the receiving end of a flurry of legal challenges. Backage’s defense was solid and comprised:

• First Amendment protections of free speech,
• Fifth and Fourteenth Amendments,
• Commerce Clause, and the defensive linchpin
• Section 230 of the 1996 Communications Decency Act

Section 230 stated 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.” In a nutshell, Backpage was not to be held liable for the ads made by its users. Judges across the country agreed unilaterally and consequently smashed virtually every suit against Backpage and its owners.

Congress pitched in and started investigating Backpage in 2015. Backpage and the Senate had their own run-in with subpoenas and objections flying off the rattle. Eventually, in early 2017, the U.S. Senate Permanent Subcommittee on Investigations (PSI) released a damning report accusing Backpage of “knowingly facilitating child sex trafficking.”

The PSI report proved to be the final straw as Backpage shut down its adult services section hours after the report’s release. However, that turned out to be an exercise in futility, as posters migrated to the dating section.

This migration further underscored an argument made by Backpage’s proponents (as well as those who weren’t fans of the website but opposed shutting it down) that closing Backpage had considerable demerits.

• Backpage was already cooperating with law enforcement and voluntarily partnering with the National Center for Missing and Exploited Children (NCMEC) to nab traffickers and rescue victims of child and over-age sex trafficking.
  Backpage reported about 400 ads suspected of advertising a minor to NCMEC every month. Backpage also responded to most of the three to five incoming subpoenas it received daily within 24 hours; and often sent data to law enforcement before receiving the official subpoena.

  Furthermore, Backpage was one of the major resource used to scour for victims in many jurisdictions leading to multiple rescues and thousands of arrests.

• Closing Backpage would only result in pimps and traffickers using other platforms (which abound on the Internet) that are underground and/or offshore, which would be less willing to cooperate with law enforcement and advocacy organizations.
  Not to mention making monitoring and investigation more difficult, as classified sites with operations overseas may take months instead of hours to respond to subpoenas and are under no obligation to cooperate with the NCMEC.

Backpage’s opponents counter that the bad outweighed the good, that Backpage wasn’t acting in good faith, and that Backpage’s efforts to moderate and clean up their adult services and dating sections were mainly cosmetic and half-hearted. A sordid proof that backed this up was a story (released after Backpage had closed its adult services category), which revealed that Backpage hired a Filipino contractor to aggressively solicit and create sex-related ads, despite insisting that it had no role in the creation of classifieds posted on the site.

The multi-pronged attack on Backpage continued unabated. In 2015, Sheriff Tom Dart of Cook County, pressured credit card heavyweights MasterCard and Visa to stop accepting payment for Backpage using a cease-and-desist order. Both companies complied days later. American Express followed suit. And even though Backpage sued Dart and won, the credit card processing companies didn’t want to touch Backpage with a ten foot pole anymore.

Additionally, Congress pushed forward to pass two bills—Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and Stop Enabling Sex Traffickers Act (SESTA)—which were eventually joined as the FOSTA-SESTA package. The main objective of FOSTA-SESTA is to exclude enforcement of federal or state sex trafficking laws from the immunity conferred by Section 230 of the CDA. FOSTA-SESTA became law in April 2018.

The legal interpretation that did Backpage in was ruling by courts in Massachusetts and Florida affirming that by censoring specific keywords, Backpage “materially contributed to the content of the advertisement”; and therefore was no longer covered by Section 230 safe harbors’ immunity.

Days later and before FOSTA-SESTA was signed into law, Backpage was seized in an effort led by the Justice Department’s Child Exploitation and Obscenity Section and the U.S. Attorney’s Office for the District of Arizona. The FBI, U.S. Postal Inspection Service, and the Internal Revenue Service Criminal Investigation (IRS-CI) conducted the seizure. The effort received significant support from the U.S. Attorney’s Office for the Central District of California and the offices of the Attorney Generals of Texas and California.

The nail on the coffin

In addition to seizing Backpage (and affiliated domains), the feds slammed a 93-count federal indictment against seven individuals including founder Michael Lacey; co-founder James Larkin; executives John Brunst and Scott Spear; and employees Andre Padilla, Daniel Hyer, and Joye Vaught. The charges ranged from facilitating prostitution to money laundering.

In its official statement, the Justice department described Backpage as the “Internet’s leading forum for prostitution ads, including ads depicting the prostitution of children.” Attorney Jeff Sessions surmised that, “For far too long, Backpage.com existed as the dominant marketplace for illicit commercial sex, a place where sex traffickers frequently advertised children and adults alike.”

“This website will no longer serve as a platform for human traffickers to thrive, and those who were complicit in its use to exploit human beings for monetary gain will be held accountable for their heinous actions,” said FBI Director Wray.

In any case, while many have hailed the move to shut down Backpage, it is worth noting that human trafficking cases have remained steady (there has been no changes) in the immediate aftermath of Backpage’s shutdown.