Backpage.com was launched in 2004 by New Times Media, owned by Michael Lacey and James Larkin, as a classified ad website similar to Craigslist. However, it was not until Craigslist closed its “adult services” section in 2010 that Backpage exploded, becoming the second largest classified advertising website. In the two months after Craigslist closed adult services, Backpage saw a 50 percent growth in adult services advertising. Over the next eight years, Backpage hosted 80 percent of online sex ads, saw annual profits rise from 71 million to 154.8 million, was sued by multiple families of survivors for facilitating prostitution of minors, and was investigated by the Senate Permeant Subcommittee for Investigations (SPSI), which resulted in criminal trafficking charges. (Mazzio, 2017).
The adult services section of Backpage included ads for known prostitution activities, including escort services and massage parlors. Backpage.com had a significant influence on the potentially illicit markets of massage parlors and strip clubs. While law is typically designed to respond to visible prostitution, i.e. street workers, the use of websites such as Backpage shifts the market to less visible places. Men will engage in solicitation privately and anonymously through sites like Backpage.com before meeting at a licit front, e.g. massage parlor or strip club. Online classified ads provide easier access to prostitution and can enhance the ability of buyers, prostitutes, and pimps to avoid visible means of solicitation and therefore better avoid arrest (Makin & Bye, 2018). While there are legal problems with Backpage facilitating prostitution in general, the fact that children were advertised for sex through the site automatically moves the discussion into the realm of human trafficking.
In response to accusations of child sex trafficking, Backpage offered to meet with the National Center for Missing and Exploited Children (NCMEC) in 2010 and promised to do everything possible to fight trafficking. In a signal of good will, Backpage implemented a moderating system to review adult ads. While Backpage publicly declared itself to be a forerunner in fighting trafficking and claimed to be the sheriff of the internet, moderation, in practice, was less than admirable. A single moderator was responsible for 700-800 ads per day. Ads would go live when posted and would be up for hours before a moderator could review and potentially remove them, based on a list of words that were not to be included, including words indicating underage girls like “schoolgirl,” “fresh,” and “teen.” Once removed, ads were often reposted within the week (Mazzio, 2017).
In late 2011, Kubiiki Pride filled a lawsuit against Backpage after finding sexually explicit images of her 13-year-old kidnapped daughter on a Backpage escort ad. However, Backpage argued for dismissal of the lawsuit, citing Section 230 of the Communications Decency Act (CDA) and case was dismissed (Mazzio, 2017). Section 230 stipulates that online service providers (Backpage) are not responsible as publishers of content posted by third parties. States are limited in their ability to regulate the Internet and hold online service providers responsible for posts on their websites. Only the federal government has the potential to regulate internet content and much of the internet is protected by the First Amendment (Makatche, 2013). CDA § 230 is the key piece of legislation that protected Backpage for eight years.
Following this lawsuit, public pressure led to Backpage attorney Liz McDougall to testify at a New York City Council subcommittee hearing in April 2012 in defense of Backpage. McDougall claimed that Backpage was doing more than anyone to fight trafficking (Mazzio, 2017). However, in the same month, Washington State passed Senate Bill 6251, requiring websites to verify the ages of workers in sex ads. Backpage immediately challenged the constitutionality of SB 6251 in court, citing CDA § 230. Backpage won and forced a repeal of the Washington bill and of a similar bill passed in Tennessee (Makatche, 2013).
Two more cases against Backpage alleging the facilitation of trafficking were filled by the families of trafficking survivors in 2013. While Backpage eventually won both based on CDA § 230, these cases saw the emergence of the arguments that Backpage was not a passive host to sex ads, but an active participant by designing posting rules that were not intended to prevent trafficking, but instead designed to be a guide for pimps and traffickers to avoid law enforcement. For example, guidelines included advice for ad posters to remain anonymous by paying for ads through prepaid Visa and Mastercards or Bitcoin and posting phone numbers using a mix of digits and spelled-out numbers, making it harder for law enforcement to track (Mazzio, 2017).
At this time, Cook county sheriff, Tom Dart, issued a cease and desist letter to Mastercard and Visa, informing them that they were in business with a business, Backpage, involved with child trafficking. Mastercard and Visa both stopped transactions with Backpage, leading the site to sue Sheriff Dart, claiming his letter violated the First Amendment. The court ruled in favor of Backpage, naively believing that ads for escorts may actually be for “escorts” and do not necessarily include illegal sex (Mazzio, 2017). Unfortunately, this ruling is consistent with research which indicates that focus on visible trafficking by legal and policymaking institutions leads to missing or ignoring the role of technology in trafficking. Trafficking depends on the ignorance of these institutions for the everyday evils of trafficking online. (Mendel & Sharapov, 2016).
SPSI began to investigate accusations of online sex trafficking in 2015 with reports such as NCMEC’s claim that over half of their cases involving Backpage, leading the SPSI to look at Backpage’s active role in trafficking. Six months after starting their investigation, the SPSI subpoenaed Backpage CEO Carl Ferrer. Backpage immediately laid off their moderators and instructed them to seek a criminal lawyer if asked questions about their job. The SPSI report found that Backpage actively edited posts to remove words and images associated with the illegal nature of the ads before publishing the ads anyway. Moderators were heavily encouraged to post, as adult services ads were one of the only categories which required payment on behalf of the poster. For example, Ferrer told employees, “When in doubt about underage, the process should now be to accept the ad. Only delete if you’re really very sure the person is underage.” (Mazzio, 2017).
However, Ferrer skipped the meeting, resulting in the SPSI issuing a civil action to enforce the subpoena, resulting in a raid on Backpage’s headquarters and the arrests of Ferrer, Lacey, and Larkin and forced them to testify. Backpage immediately shut down its adult services section. All three men exercised their Fifth Amendment rights in response to accusations by the SPSI that Backpage edited out words indicative of child sex trafficking, including phrases like “amber alert” and “Lolita” before publishing the ads (Mazzio, 2017).
Image of Ferrer (left), Lacey (middle), and Larkin (left) used without permission from the Sacramento County Sheriff’s Office
Shortly after their testimony before the SPSI, Larkin and Lacey filed to remove their names from ownership of their homes, transferring their homes to their wife and shell company, respectively, potentially in anticipation of an FBI raid (Ruelas & Cassidy, 2018).
The FBI raid eventually came in April 2018, resulting in the arrest and charge of Ferrer, Larkin, Lacey, and seven other Backpage officials for human trafficking and money laundering charges. As of now, Ferrer has pled guilty to money laundering and facilitation of prostitution charges with a cap of five years in prison in exchange for his testimony against Larkin and Lacey. Ferrer admitted to using an automated moderation process to remove incriminating words from ads before posting rather than reporting them to law enforcement. This removal was designed to create a sense of plausible deniability, which proved successful when suing Sheriff Dart. Backpage.com and all its affiliates were seized by the FBI and are not currently operational (Jackman, 2018).
Image used without permission from Reuters
However, while the fall of Backpage.com is a success for trafficking survivors, it is important to note that while Backpage is no longer operational, ads will likely find a home at another web provider, much like ads on Craigslist moved to Backpage in 2010. Until the federal government implements regulation regarding the internet marketplace where children are sold, the idea of Backpage will continue to exist by a different name.
Revisiting the CDA is one possibility, but regulation is possible even in accordance with Section 230. Prostitution, though largely illegal, does constitute commercial speech and is not protected by the First Amendment in the same way other speech is protected. Additionally, this would place online sex ads under the jurisdiction of the Commerce Clause, placing responsibility and the ability to regulate in the hands of Congress. Furthermore, the government has a substantial interest in protecting children from sex trafficking and this goal is directly advanced by regulating online sex ads (Makatche, 2013). Congress has both the duty and the legal ability to regulate the online marketplace where children are sold for sex. At this time, it is impossible to measure the success of the recently passed Fight Online Sex Trafficking Act (FOSTA), a bill designed for this specific purpose.
Works Cited
Jackman, T. (2018, April 13). Backpage Ceo Carl Ferrer pleads guilty in three states, agrees to testify against other website officials. Retrieved from The Washington Post: https://www.washingtonpost.com/news/true-crime/wp/2018/04/13/backpage-ceo-carl-ferrer-pleads-guilty-in-three-states-agrees-to-testify-against-other-website-officials/?utm_term=.752de29354a3
Makatche, A. (2013). The Commercial Sexual Exploitation of Minors, the First Amendment, and Freedom: Why Backpage.com Should be Prevented form Selling America’s Children for Sex. Fordham Urban Law Journal, 227-263.
Makin, D., & Bye, C. (2018). Commodification of Flesh: Data Visualization Techniques and Interest in the Licit Sex Industry. Deviant Behavior, 46-63.
Mazzio, M. (Director). (2017). I Am Jane Doe [Motion Picture].
Mendel, J., & Sharapov, K. (2016). Human Trafficking and Online Networks: Policy, Analysis, and Ignorance. Antipode, 665-684.
Ruelas, R., & Cassidy, M. (2018, April 6). Backpage founder charged by feds after human trafficking investifation. Retrieved from AZ Central: https://www.azcentral.com/story/news/local/arizona-investigations/2018/04/06/backpage-executive-michael-lacey-indicted-prostitution-charges/310430001/
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