Backpage

History

Near the turn of the 21st century, Internet-based classified advertising, particularly the website Craigslist, was having a significant impact on the classified advertising business in newspapers nationwide. Classified advertising in daily newspapers as well as weekly alternatives, suburban papers and community papers was moving to the free advertising model of Craigslist and other smaller websites. In 2004, in response to this phenomenon, New Times Media (later to be known as Village Voice Media), a publisher of 11 alternative newsweeklies, launched a free classified website called backpage.com. The foundation and traditions of free classified advertising and free circulation were part of the fundamentals of the alternative newsweeklies dating back to 1971. The Chicago Reader and the Phoenix New Times were pioneers in these operating philosophies.

Backpage soon became the second largest online classified site in the U.S. The site included the various categories found in newspaper classified sections including those that were unique to and part of the First-Amendment-driven traditions of most alternative weeklies. These included personals (including adult-oriented personal ads), adult services, musicians and "New Age" services.

Adult section

Backpage contained a section for adult postings. It prohibited illegal services including prostitution and users had to agree to these terms before posting on the site. The postings in the adult section of the site often contained sexual innuendo including accompanying images. However, explicit offers of prostitution often appeared there, and were monitored and removed by the company when found. However as of January 9, 2017 the adult listings section of the website has been blocked, and users are unable to access those listings.

Controversy

There has been significant public controversy and discourse regarding the adult section of Backpage.com. Most of the criticism has centered around the charge that Backpage is used to market minors (i.e. underage sex trafficking), and that they contribute to a surge of prostitution in areas that they operate. Media, law enforcement, politicians and parents of trafficked children have weighed in on this matter.

According to the National Center for Missing and Exploited Children (NCMEC), the majority of child sex trafficking cases referred to NCMEC involve ads on Backpage.^[10] Backpage says that it blocks about a million ads per month, mostly suspected of child sex trafficking or prostitution.^[11] Of those, they report around 400 ads a month to NCMEC which in turn notify law enforcement.^[12][13] Content submitted to Backpage is surveyed by an automated scan for terms related to prostitution. At least one member of a team of over 100 people also oversees each entry before it is posted.^[14]

Backpage has had continued issues with credit card processors, who were under pressure from law enforcement to cease working with companies that allegedly allow or encourage illegal prostitution. In 2015 Backpage lost all credit card processing agreements, leaving Bitcoin as the remaining option for paid ads.

In an amicus curiae brief, the National Center for Missing and Exploited Children says the efforts of Backpage are inadequate and their reporting lacked in several areas. They say Backpage does not report all ads that have been flagged as being underage, does not report when someone tries to advertise children under 18 years of age, and does not respond to requests of parents to have ads of their trafficked children removed. They also say Backpage "encourage[s] dissemination of child sex trafficking content on its website". They say Backpage is much slower in removing ads that advertise children than ads placed by authorities aimed at trapping traffickers, guides traffickers in creating false pages for underage children, instructs traffickers and buyers on how to pay anonymously, and makes it easier to make adult posts than other posts. They said "To all intents and purposes, Backpage has instituted no effective procedures to prevent child sex trafficking ads from being created on its site." They say that they do not use obvious techniques to identify traffickers, such as using the same phone number, email address or credit card of a known trafficker, or reusing the same picture of known victim of human trafficking.

Advocates for Backpage point out that by carefully scrutinizing each posting in the Adult section before it is posted, removing questionable posts and reporting potential cases of the trafficking of minors to the authorities and NGOs such as NCMEC, Backpage is aiding in the fight against this activity. In addition, they argue that by providing prompt and detailed information about postings to law enforcement when asked to do so (including phone numbers, credit card numbers and IP addresses), Backpage aids law enforcement in protecting minors from such activity. They also contend that the prompt and complete production of this information results in more convictions for illegal activities and that shutting down the adult section of Backpage will simply drive the traffickers to other places on the internet that will be less forthcoming about crucial information for law enforcement.

Liz McDougall, an attorney serving as general counsel for Backpage.com, said that Backpage is an "ally in the fight against human trafficking." She said that the adult section of Backpage is closely monitored, and that shutting it down "would simply drive the trafficking underground." She said that websites like Backpage, that are able to monitor trafficking activity and report it to law enforcement, are key in the fight against human trafficking. McDougall said that shutting down the service on a cooperative United States–based website would only drive trafficking to underground and international websites that are more difficult to monitor, and are often outside the jurisdiction of U.S. law enforcement.

Numerous writers, non-governmental organizations ("NGO's") legal experts and law enforcement officials including the Electronic Frontier Foundation, the Internet Archive, and the Cato Institute, have pointed out that the freedoms and potentially the entire fabric of the internet would be threatened if this type of free speech is prohibited on Backpage. They cite both First Amendment rights of free speech guaranteed in the Constitution as well as Section 230 of the Communications Decency Act. This law provides protection to Interactive service providers that are the conduits for others’ speech and not the speaker themselves.

Writers for Forbes, the Huffington Post, and Fast Company have suggested that Backpage is a useful tool for law enforcement and the public in exposing the perpetrators of human trafficking. Numerous NGOs and others contend that the potential harm done by a website that features a section for adult posting is far greater than any actions the site may take to aid law enforcement. In many cases, the critics of Backpage say that these efforts are less than is necessary or possible. Some say that no efforts to police the site and report bad actors outweigh the negative impact the site may have in this area. The general counsel for National Center for Missing and Exploited Children said, "Backpage’s reporting is not conducted in good faith." Washington Post writer Glenn Kessler, in a number of his Fact Checker columns, debunked many of the inflated sex trafficking statistics and claims cited by politicians, NGOs, lawmakers and the media.

In 2012, at the behest of a number of NGO's including Fair Girls and NCMEC, Fitzgibbon Media (a well-known progressive/liberal public relations agency) created a multimedia campaign to garner support for the anti-Backpage position. They enlisted support from musicians, politicians, journalists, media companies and retailers. The campaign created a greater public dialogue, both pro and con, regarding Backpage. In 2015, Fitzgibbon Media was closed due to multiple allegations of sexual harassment and abuse by Fitzgibbon owner Tervor Fitzgibbon. Some companies including H&M, IKEA, and Barnes & Noble canceled ads for publications owned by Village Voice Media. Over 230,000 people including 600 religious leaders, 51 attorneys general, 19 U.S. senators, over 50 non-governmental associations, musician Alicia Keys, and members of R.E.M., The Roots, and Alabama Shakes petitioned the website to remove sexual content. New York Times columnist Nicholas Kristof authored a number of columns criticizing Backpage, to which Backpage publicly responded.

In 2012, Village Voice Media separated their newspaper company, which then consisted of eleven weekly alternative newspapers and their affiliated web properties, from Backpage, leaving Backpage in control of shareholders Mike Lacey and Jim Larkin. Executives for the spinoff holding company, called Voice Media Group (VMG) and based in Denver, raised "some money from private investors" in order to purchase the newspapers. The CEO of VMG, said "Backpage has been a distraction—there's no question about it—to the core (editorial) properties." In December 2014, Village Voice Media sold Backpage to a Dutch holding company. Carl Ferrer, the founder of Backpage, remained as CEO of the company.

Legal decisions

Beginning in 2011 a number of legal challenges were initiated by foes of Backpage in attempts to eliminate the adult section of the website and or shut down the website entirely. These actions included legislative initiatives as well as lawsuits brought by individuals; all of these lawsuits, which were mostly brought by politicians and NGOs, were successfully challenged by Backpage, which argued that the First Amendment protections of free speech were being compromised by any restriction on postings by individuals on the Backpage website. The Fifth and Fourteenth amendments to the Constitution as well as the Commerce Clause were also cited as reasons that these efforts were illegal under U.S. law. Section 230 of the Communications Decency Act of 1996 (CDA) served as an additional cornerstone in this defense. Section 230 says 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." This portion of the CDA was drafted to protect ISPs and other interactive service providers on the Internet from liability for content originating from third parties. The enactment of this portion of the CDA overturned the decision in Stratton Oakmont, Inc. v. Prodigy Services Co. in which Prodigy was deemed by the court to be a publisher and therefore liable for content posted on its site. Many observers have credited the passage of section 230 of the CDA as the spark that ignited the explosive growth of the internet. The protection afforded to website owners under section 230 was upheld in numerous court cases subsequent to the passage of the legislation in 1996 including Doe v. MySpace Inc., 528 F.3d 413 (5th Cir. 2008) and Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. Oct. 20, 2009).

Arrest of CEO and corporate officers

On October 6, 2016, Texas Attorney General Ken Paxton and California Attorney General Kamala Harris announced that Texas authorities had raided the Dallas headquarters of Backpage.com and arrested CEO Carl Ferrer at the George Bush Intercontinental Airport in Houston on felony charges of pimping a minor, pimping, and conspiracy to commit pimping. The California arrest warrant alleged that 99% of Backpage’s revenue was directly attributable to prostitution-related ads, and many of the ads involved victims of sex trafficking, including children under the age of 18. The State of Texas was also considering a money laundering charge pending its investigation. Arrest warrants were also issued against former Backpage owners and founders Michael Lacey and James Larkin. Lacey and Larkin were charged with conspiracy to commit pimping.

Backpage denied any wrongdoing and issued a statement to that effect. Backpage general counsel Liz McDougall called the office raid and the arrests “…an election year stunt, not a good-faith action by law enforcement,” She went on to say: “Backpage.com will take all steps necessary to end this frivolous prosecution and will pursue its full remedies under federal law against the state actors who chose to ignore the law, as it has done successfully in other cases.” The company called these actions a violation of the First Amendment as well as the Communications Decency Act (“CDA”) and accused California Attorney General Kamala Harris of an illegal prosecution.

A range of observers immediately criticized the arrests, including writers such as Mike Masnick at Techdirt, Noah Feldman at Bloomberg and Elizabeth Nolan Brown at Reason.com. Masnick points out that the arrests are in contradiction to section 230 of the CDA and the First Amendment rights of Backpage as has been upheld in numerous court decisions over the five previous years. He posited that AG Harris was more interested in the publicity from the arrests for political gain than in enforcing a law she had previously admitted was unenforceable by individual states as specified in section 230. In addition he points out that the details in the complaint appear to support Backpage’s assertion that it responds appropriately when advised of illegal ads on its site and removes them promptly.

Feldman said: “It takes a lot to turn a publisher of sex ads into a First Amendment hero. But the attorney general of California has managed the feat. By charging Carl Ferrer, the chief executive of Backpage.com, with pimping and sex trafficking in minors, Kamala Harris has seriously breached the constitutional wall meant to protect the free press.”

On October 17, attorneys for Ferrer, Larkin and Lacey, sent a letter to the California AG Kamala Harris asking that all charges against their clients be dropped. The AG’s office did not agree to the request for dismissal.

On October 19, 2016, attorneys for Backpage filed a Demurrer to the Criminal Complaint against CEO Carl Ferrer and former Backpage owners Michael Lacey and Jim Larkin. In it they argued that all charges against their clients should be dismissed based upon, among other things, that the Attorney General’s prosecution “tramples First Amendment Rights and is flatly barred by Section 230 as she has admitted”. Numerous previous court ruling and decisions were cited in the Demurrer supporting this position.

The AG filed its response to the Demurrer on November 4, 2016. Backpage Attorneys filed their reply in support of the Demurrer on November 10, 2016. On November 16, 2016 Judge Michael Bowman of the Superior Court of the State of California issued a tentative ruling in this case supporting the position of Backpage and granting its request for dismissal of the case. He then heard oral arguments in his courtroom from both parties and indicated he would issue a final ruling by December 9, 2016.

On December 9, 2016, Judge Bowman issued a Final Ruling 62 on this matter. Bowman dismissed all the charges in the complaint, stating that:

"...Congress has precluded liability for online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.”

On December 23, 2016 the state of California then filed new charges against Backpage CEO Carl Ferrer and former Backpage owners Mike Lacey and Jim Larkin. They were charged with pimping and money laundering.

Lawyers for Backpage responded that the charges rehashed the earlier case that had been dismissed on December 9, 2016. Jim Grant, an attorney for Backpage said: “She (CA AG Kamala Harris) cannot avoid First Amendment protections, federal law or her obligations to follow the law, although her new complaint is a transparent effort to do exactly that." Arraignment was set for January 11, 2017.

Since April 2015, the U.S. Senate Permanent Subcommittee on Investigations ("PSI") has been investigating Backpage.com as part of a stated overall investigation of human trafficking. After a voluntary, day-long briefing and interview provided by the company’s General Counsel, PSI followed up with a subpoena to Backpage.com demanding over 40 categories of documents, covering 120 subjects, regarding Backpage’s business practices. Much of the subpoena targeted Backpage’s editorial functions as an online intermediary. Over the ensuing months, Backpage raised and PSI rejected numerous objections to the subpoena, including that the subpoena was impermissibly burdensome both in the volume of documents PSI demanded and in its intrusion into constitutionally-protected editorial discretion. PSI subsequently issued a shorter document subpoena with only eight requests but broader in scope and also targeting Backpage.com's editorial functions. Backpage.com continued to object on First Amendment and other grounds.

PSI applied in March 2016 for a federal court order to enforce three of the eight categories of documents in the subpoena. In August 2016, the U.S. District Court in D.C. granted PSI’s application and ordered Backpage to produce documents responsive to the three requests.

Backpage immediately filed an appeal and sought a stay, which the district court denied, then filed emergency stay petitions with the U.S. Court of Appeals for the D.C. Circuit, and Supreme Court. Each appellate court issued temporary stays to consider whether to grant a stay pending appeal, but eventually denied the emergency stay requests, However, the D.C. Circuit agreed to expedite the appeal, and one of its judges who considered the emergency stay said he would have granted it. Backpage has continued to pursue its appeal despite producing thousands of documents to PSI pursuant to the District Court order. PSI scheduled a Subcommittee hearing regarding Backpage.com for January 10, 2017.

On January 9, 2017, the United States Supreme Court refused to re-consider a ruling by the U.S 1st Circuit Court of Appeals that a suit filed in Boston federal court in 2014 against Backpage by three women who claimed that Backpage was responsible for them being forced into illegal sex transactions. The Court of Appeals held that Backpage could not be held liable as the “publisher or speaker” for postings on its site by third parties in accordance with the protections provided to website operators under section 230 of the CDA.

Also on January 9, prior to its scheduled hearings on Backpage the next day, the PSI released a that accused Backpage of knowingly facilitating child sex trafficking.

Shortly thereafter, Backpage announced that it was removing its adult section from all of its sites in the United States. Backpage said it was taking this action due to many years of continuing acts by the government to unconstitutionally censor the site’s content via harassment and extra-legal tactics and to make it too costly to continue its legal publishing activities.