For many years, we’ve pointed out that for all the salacious stories and claims about how Backpage.com was somehow supporting and facilitating sex trafficking, the site was actually an amazing tool for finding, arresting, and convicting sex traffickers. Earlier this year, we wrote about a very detailed piece in Wired that highlighted just how far Backpage went in helping law enforcement stop sex trafficking:
On October 18, Backpage announced on its blog that it had retained Hemanshu Nigam, a former federal prosecutor who specialized in sex crimes and child abuse, to develop a “holistic” safety program. Nigam sat on the board of the National Center for Missing and Exploited Children and had done similar work for Myspace. In the months that followed, Nigam and his new clients met repeatedly with representatives from anti-trafficking organizations. They discussed changes to Backpage’s site architecture, moderation practices, and content policies. The organizations suggested, for instance, that users should be prevented from employing search terms such as “incest” or “Lolita,” since these might “indicate illegal activity.” Backpage moderators, meanwhile, should be on the lookout for “ads written from masculine perspective,” particularly if they employed the euphemism “new in town,” which “is often used by pimps who shuttle children to locations where they do not know anyone and cannot get help.”
By late January 2011, Backpage had implemented many of the recommendations: It had banned photographs with nudity, drawn up a list of “inappropriate terms,” beefed up its vetting process, and begun referring “ads containing possible minors” directly to Allen’s staff. Ferrer also worked closely with the authorities. According to a Justice Department memo from 2012, “unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.” A later memo noted that “even Ernie Allen believed that Backpage was genuinely trying to rid its site of juvenile sex trafficking.”
Where things got more heated was when law enforcement wanted to go after Backpage for consensual sex, rather than trafficking. But, because it was convenient, politicians, law enforcement, and the media kept up the charade that Backpage and its founders were deliberately supporting sex trafficking. However, as a new article at Reason by Elizabeth Nolan Brown makes clear, the government knew all along that Backpage was one of its best partners in stopping sex trafficking. Some new documents have come out as part of the ongoing lawsuit against Backpage and its founders by the feds that kind of undermine the entire narrative about Backpage.
The memo—subject: “Backpage.com Investigation”—reveals that six years before Backpage leaders were indicted on federal criminal charges, prosecutors had already begun building a “child sex trafficking” case against the company. But this case was hampered by the fact that Backpage kept trying to help stop sex trafficking.
“Information provided to us by (FBI Agent Steve) Vienneau and other members of the Innocence Lost Task Force confirm that, unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations,” wrote Catherine Crisham and Aravind Swaminathan, both assistant U.S. attorneys for the Western District of Washington, in the April 3 memo to Jenny Durkan, now mayor of Seattle and then head federal prosecutor for the district. Vienneau told prosecutors that “on many occasions,” Backpage staff proactively sent him “advertisements that appear to contain pictures of juveniles” and that the company was “very cooperative at removing these advertisements at law enforcement’s request.”
“Even without a subpoena, in exigent circumstances such as a child rescue situation, Backpage will provide the maximum information and assistance permitted under the law,” wrote Crisham and Swaminathan.
You might notice that one of those quotes above was included in that Wired piece I quoted earlier. However, as Nolan Brown notes, these and another memo were “accidentally” revealed to Backpage’s defense lawyers, but then the judge sealed them and ruled them off-limits for the defense, despite their exculpatory nature.
Backpage lawyers in the criminal case have been barred from using the memos as part of their clients’ defense. The previous judge handling the case (who recused himself) agreed with the prosecution that the memos, which had been filed under seal in the Western District of Washington, must remain sealed and that the defense must destroy its copies.
At an August 19 hearing, Judge Susan M. Brnovich ruled that they will stay that way. But Brnovich denied the state’s request to sanction defendants over quotes from the memos appearing in the June Wired story.
At the hearing, lawyers for defendants had pointed out that there were months when the memos were not under seal and that many people had viewed or had access to them both before and during that time. In issuing her order, Brnovich agreed that the memos had “clearly been distributed to many people,” including “other people that the government was working with,” and said any suggestion Backpage defendants or lawyers had supplied the memos to Wired was pure “speculation.
As Reason points out, multiple attempts to pull together trafficking charges against Backpage fell down as investigators realized that Backpage was actually on their side on these things, and there was no evidence of Backpage actually supporting trafficking.
Over the next year, their office would undertake a large investigation into Backpage’s internal processes and potential criminality.
This included a “preliminary review of more than 100,000 documents,” subpoena responses “from more than a dozen entities and individuals,” interviews with around a dozen witnesses, and “extended grand jury testimony from an additional six witnesses,” mainly Backpage employees. Still, it failed to produce “the kind of smoking gun admissions which we had hoped would propel this investigation to indictment,” wrote Swaminathan and another assistant U.S. attorney, John T. McNeil, in a January 2013 memo.
“At the outset of this investigation, it was anticipated that we would find evidence of candid discussions among [Backpage] principals about the use of the site for juvenile prostitution which could be used as admissions of criminal conduct,” wrote McNeil and Swaminathan in their 2013 update. “It was also anticipated that we would find numerous instances where Backpage learned that at site user was a juvenile prostitute and Backpage callously continued to post advertisements for her. To date, the investigation has revealed neither.”
They recommended that bringing criminal charges would be unwise.
This seems notable, and seems to explain why it took so long for the feds to move against Backpage. Remember, that despite all the rhetoric around Section 230, federal criminal laws are exempt from 230, and if the feds actually had evidence of Backpage engaging in sex trafficking, the DOJ could have taken the site down at any time.
The Reason article goes into great detail, often contrasting public statements about Backpage with what was happening behind the scenes, while also showing how those who had decided, unequivocally, that Backpage was evil, would twist any step it made to stop sex trafficking as evidence that it was facilitating sex trafficking.
Since the time when the memos were first drafted, officials have figured out ways to frame any positive parts of Backpage operations into legal liabilities and points of public horror. The meetings with NCMEC and the efforts to help police? Proof that Backpage knew of the problem. Preventing explicit offers of sex for money? The Senate said that was just Backpage wanting to “conceal the true nature” of ads. Filtering out open-to-interpretation words? Banning underage ads? Same, said the senators. Their report portrayed the fact that Backpage used moderation at all as some sort of seedy ploy.
Requiring card payments for adult ads—as NAAG suggested, since cards can be traced—was spun as a deliberate effort to profit off exploitation. Accepting bitcoin after Dart threatened card companies? Evidence of subterfuge. Accepting checks after the Dart harassment? That let prosecutors tie specific ad buys to real identities and transactions, thus helping them fulfill a previously-lacking element necessary for money laundering charges.
In effect, everything the company did to enhance protection and legality was twisted into evidence of criminality and moral failure. And, for years, folks have promoted these topsy-turvy explanations.
Yet, as the memos show over and over again, the feds who were investigating Backpage simply could not make a case against the company, since it was so eager to help to stop sex trafficking.
In 2012, Crisham and Swaminathan seemed impressed by how cooperative Backpage was with police and other members of law enforcement. Backpage data offer “a goldmine of information for investigators,” they noted. In general, staff would respond to subpoenas within the same day; “with respect to any child exploitation investigation, Backpage often provides records within the hour.” Staff regularly provided “live testimony at trial to authenticate the evidence against defendants who have utilized Backpage,” and the company held seminars for law enforcement on how to best work with Backpage staff and records.
“Witnesses have consistently testified that Backpage was making substantial efforts to prevent criminal conduct on its site, that it was coordinating efforts with law enforcement agencies and NCMEC [the National Center for Missing and Exploited Children], and that it was conducting its businesses in accordance with legal advice,” wrote Swaminathan and McNeil in 2013. Furthermore, they noted, their investigation failed “to uncover compelling evidence of criminal intent or a pattern or reckless conduct regarding minors.” In fact, it “revealed a strong economic incentive for Backpage to rid its site of juvenile prostitution.”
Ultimately, it was their assessment that “Backpage genuinely wanted to get child prostitution off of its site.”
It seems fairly ridiculous that Backpage is now prevented from using this evidence in court, but at the very least, the court of public opinion deserves to see what was really happening.
Read more: techdirt.com