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CEO of shady ad site Backpage and owners arrested on human trafficking suspicions

CDA internet shield under the spotlight

By Andrew Orlowski, 7 Oct 2016

Special report The CEO of the notorious online classified site Backpage, Carl Ferrer, has been arrested in Texas on allegations of sex trafficking, after a joint investigation by California and Texas.

Earlier this year the US Senate, investigating human trafficking, voted to hold Ferrer in contempt after he refused to co-operate.

It was the first contempt resolution the Senate had issued in over 20 years, since Whitewater. Ferrer had (unsuccessfully argued, pdf) he did not need to co-operate with the Senate.

Backpage is the largest adult classified ads site in the USA, second only to Craigslist in popularity for all online classifieds. Craiglist withdrew from adult classifieds in 2010, leaving the field to Backpage, which now derives 99 per cent of its income from "adult" wares. Backpage's two controlling shareholders have also been arrested and charged with conspiracy to commit pimping, according to California’s State attorney general Kamala D Harris.

Prostitution is illegal in almost all US jurisdictions. Nicholas Kristof of the New York Times alleges that Backpage is “the leading site for trafficking of women and girls in the United States.” The National Center for Missing and Exploited Children says a majority of the 10,000+ cases a year referred to it are Backpage adult classified ads. A not untypical case involved a 15 year old child "being sold and raped at least five times every night for three years.”

The NCMEC argues (pdf) that Backpage "actively encourages" traffickers in various ways. The site, NCMEC claims, does not require email verification from an advertiser, failed to corroborate age claims and email addresses, and allowed the poster to claim they’re 18 even when they submit a photograph of an underage child. Requests by parents to remove listings are ignored. The site provided “e-mail anonymization, forwarding, auto-reply, and storage services to posters.”

“Backpage optimises the ability of traffickers to post escort ads by imposing less stringent posting rules for sex trafficking than it does for other ad categories,” the Centre argued in a recent court filing.

The genuinely shocking nature of the trade prompted calls for action from human rights NGOs, Senators, all 51 state attorneys, and was publicised by celebrities including R.E.M.

One underage girl was advertised 300 times on the site, and raped over a thousand times

Yet Backpage has been able to enjoy the wide freedom that the US government gave to online operators in the Communications Decency Act. The Act was hastily introduced as a response to a porn panic in the 1990s, with the goal of cleaning up online service providers of filth. The shield portion of the CDA, Section 230, was not part of the original bill, but has acquired a vital role in protecting the internet’s middlemen from liability.

Doe vs Backpage

A distressing case filed in 2014 showed just how powerful the shield really is. Three individuals who had been advertised as sexual wares sued the site* in a case that became known as Jane Does vs Backpage (pdf).

Two of the three plaintiffs were minors. One Doe was advertised 300 times on the site, and raped over a thousand times; another Doe was raped 900 times. The crimes took place in Massachusetts and Rhode Island. They testified that Backpage “implemented and perfected a business model that profits substantially from aiding and participating with pimps and traffickers in the sexual exploitation of children,” and deceived law enforcement. However, the girls lost.

On appeal, they were supported by briefs from many groups including FAIR Girls, Human Rights Project for Girls, My Life, the National Crime Victim Law Institute and the NCMEC.

The First Circuit appeals court accepted the plaintiffs' evidence as true (“taking as true the well-pleaded facts and drawing all reasonable inferences in the appellants' favor”) but felt compelled by section 230 to rule in Backpage’s favour, while expressing some regret that it had to do so:

This is a hard case — hard not in the sense that the legal issues defy resolution, but hard in the sense that the law requires that we, like the court below, deny relief to plaintiffs whose circumstances evoke outrage.

But until the law is changed, the court argued, it could do nothing. The “broad construction accorded to section 230 as a whole has resulted in a capacious conception of what it means to treat a website operator as the publisher or speaker of information provided by a third party,” Judge Selya noted.

…the distinctions between civil and criminal actions — including the disparities in the standard of proof and the availability of prosecutorial discretion — reflect a legislative judgment that it is best to avoid the potential chilling effects that private civil actions might have on internet free speech.

Backpage has also benefited from Silicon Valley’s support.

In July, the Wall Street Journal reported that Google, Facebook, Microsoft, Amazon and Apple enlisted the Centre for Democracy and Technology to co-ordinate its defence of Backpage. “Digital rights” activist groups including the Electronic Frontier Foundation and the Center for Democracy and Technology filed briefs in support of Backpage.

At the core of the case is whether courts can establish a sensible, workable standard of criminal liability. Without section 230 protection, or something like it, publishers would be liable for everything. But section 230 has become so broad, critics argue it has become a shield for criminal behaviour.

The US Criminal Code is clear cut: its opening line establishes that actively aiding and abetting criminal conduct makes one "punishable as a principal". ®

Bootnote

* The case filed in Massachusetts was (14-13870-RGS): “JANE DOE NO. 1, a minor child, by her parent and next friend MARY ROE; JANE DOE NO. 2; and JANE DOE NO. 3, a minor child, by her parents and next friends SAM LOE AND SARA LOE vs BACKPAGE.COM, LLC, CAMARILLO HOLDINGS, LLC (f/k/a VILLAGE VOICE MEDIA HOLDINGS, LLC), and NEW TIMES MEDIA, LLC).

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