After two years of intense scrutiny from the U.S. Senate and elsewhere, online ad-posting site Backpage.com announced that it is shuttering its adult services section, which was repeatedly accused by critics of facilitating child prostitution and human trafficking.
The founders of Backpage, the website accused of hosting barely-disguised solicitations for prostitution, have so far evaded criminal and civil claims by citing a federal law that gives them immunity so long as they did not actually create or develop the classified ads.
But in January, a U.S. Senate subcommittee released a report that one of its leaders said could serve as a roadmap for prosecutions and lawsuits against the website, which was started by the former Phoenix New Times executives Michael Lacey and Jim Larkin.
The subcommittee used its power to subpoena internal emails and documents from Backpage. The documents show managers took an active role in editing ads in the adult section. The subcommittee’s report, titled “Backpage.com’s Knowing Facilitation of Online Sex Trafficking,” concluded that the intent was to aid prostitutes and pimps in using the website to ply their trade without making it overly obvious.
In emails, managers debated what terms should be allowed. “Dirty slut” was fine; “cheerleader” was not. Price lists were fine, so long as they didn’t include brief time periods, like half an hour. There were also specific and graphic guidelines on what type of nudity could be shown.
At times, employees — sometimes called moderators — provided individual guidance for customers posting ads, including one whose email was Urban Pimp and was advertising a “horny, mature woman.” Emails showed Backpage employees also made their standards on ads more restrictive — and their site more sanitized — at times they thought law enforcement might be closely monitoring.
The emails were released to the Senate subcommittee starting in September 2016. Sen. Claire McCaskill, D-Mo., the ranking member of the U.S. Senate Permanent Subcommittee on Investigations, said the “treasure trove” of evidence brought the actions of Backpage into new light. McCaskill, a former county prosecutor, said it was enough to bring charges against its operators.
A federal grand jury has convened in Arizona to hear evidence against Backpage, according to court papers filed by the website’s attorneys in a civil case in Washington. Attorneys revealed the existence of the grand jury inquiry in a February filing, asking that judge to hold the civil case until the criminal matters conclude. Court papers also suggest possible action by the state of Texas, where Backpage is headquartered.
If the Arizona grand jury is following the roadmap of the subcommittee’s report, it will be poring through emails that lay bare some of the inner workings of Backpage. It will also have to decide whether the website merely edited and policed its ads, or whether its actions crossed over into helping develop the ads.
A question of liability
A law professor who has closely followed the cases against Backpage said even if the website knew it was facilitating online prostitution, it was still protected by federal law.
“If an online prostitution ad comes from a third party, a website is not liable for publishing it,” said Eric Goldman, a professor at the Santa Clara University School of Law in California. “It doesn’t matter if they got paid for it. It doesn’t matter if they suspect it’s illegal. If a third party created it, the website is not liable.”
A California judge came to the same conclusion in December when he dismissed criminal charges against Lacey, Larkin and Carl Ferrer, the CEO of Backpage. Later that month, California refiled similar charges against the men. But in his ruling against the first set of charges, the judge said the three did not cause prostitution to take place, nor did they explicitly profit from it.
“As alleged here, the prostitution took place as a result of an advertisement placed by a third party,” the motion read. “Backpage’s decision to charge money to allow a third party to post content, as well as any decisions regarding posting rules, search engines and information on how a user can increase ad visibility, are all traditional publishing decisions and are generally immunized….”
Besides the first set of California charges, Backpage also fought off a federal grand jury investigation in 2013. The website received a subpoena seeking documents, but challenged it in court. A judge quashed the subpoena, according to a filing by the Senate subcommittee. The proceedings were sealed, the subcommittee filing said, and it is not known what jurisdiction had convened the grand jury.
An internal Backpage document called that 2013 ruling a “sweeping victory against the federal government.”
The role of editing
Backpage has been sued civilly at least twice and has beaten back statutes targeting its operations that were passed in three states.
In each of those legal battles, Backpage asserted it had immunity because of Section 230 of the Communications Decency Act.
That law gives immunity to websites that publish content created by a third party. It means websites like Facebook, Twitter and others that count on users to provide content can do so with little worry they would be sued by someone who was damaged by something a user wrote. It means, broadly, that a restaurant can’t sue Yelp if a customer uses the site to post a scathing review.
The law also allows those websites to edit content by, for example, correcting misspellings or deleting obscenities. The law describes “Good Samaritan” and “good faith” efforts to block offensive material from a website.
The Senate report argued the internal emails from Backpage revealed the website was not merely publishing ads, but was “editing content to conceal illegality.” Doing that, the Senate report said, meant Backpage was no longer protected by Section 230.
The Senate report cited a 2008 decision from the 9th U.S. Circuit Court of Appeals that said website operators can cross the line by editing “in a manner that contributes to the alleged illegality.” A website that does so, according to the decision, “is directly involved in the alleged illegality and is not immune.”
A Washington Supreme Court decision said the actions of Backpage were worth exploring, ruling in 2015 that a civil suit brought by three people who said they were sold as underage prostitutes on the site could continue. The ruling said Backpage was accused of doing “more than just provid(ing) a forum for illegal content; the plaintiffs allege the defendants helped develop it.” Attorneys in that civil case said in a motion they would use the disclosed emails to help prove their case against Backpage.
The man who was convicted of being the pimp to two of the underage girls who filed that suit wrote a letter to their lawyers from prison. “Having used Backpage, I’m fully aware of their minimal efforts to thwart the sex trafficking of minors and how simple it is to avoid their security provisions,” wrote Sabir Shabazz. He said he hoped to help the defendants win their case against Backpage.
In January, the day Lacey and Larkin were set to testify before the subcommittee in Washington D.C., Backpage took down its adult section. Visitors instead saw a note saying it had been censored by the U.S. government. Lacey and Larkin refused to answer questions, citing their First and Fifth Amendment privilege.
The two men, who were among the group of journalists who built up the alternative weekly tabloid New Times into a national chain big enough to buy out New York’s venerated weekly, Village Voice, have not responded to interview requests from The Arizona Republic.
Moderators, filters scan ads
It is not entirely clear why Backpage started editing its ads. One employee who worked as a “moderator” of the ads said, in a deposition taken as part of the Washington civil suit, that the editing was done to allow illegal activity to be conducted through the site. He did not say anything about shielding users from objectionable content.
The employee, Adam Padilla, said in his deposition that words were deleted from ads because “those terms made it clear that the person was asking for, you know, money for prostitution.” Padilla said that a “significant” number of ads on Backpage were for the purposes of prostitution.
Padilla, whose brother Andrew Padilla was the website’s chief operating officer, was deposed in August 2016. The next month, Backpage complied with a federal court order, one the website fought all the way to the U.S. Supreme Court, and began producing more than 1 million documents to the U.S. Senate. Those documents offered a peek into the internal workings of the website at the time it made millions of dollars by selling advertisements on its “Escorts” section.
Backpage started editing ads in 2006, according to the U.S. Senate report, and partly automated it in 2010. At times, it employed moderators who worked in India.
The moderation was done at the direction of Ferrer, the CEO of Backpage.com. Ferrer had worked in classified advertising for the New Times tabloid chain and had urged the creation of an online extension of those ads.
A filter was designed that would automatically scrape out words deemed inappropriate, according to the U.S. Senate report. Among them, the report says, were “full service,” “teenage” and “quickie.”
Some words would result in an ad being rejected entirely, according to the emails. Other words would result in automatic editing that would delete the objectionable phrase and let the rest of the ad post.
Some users complained, according to emails, that editing made their ads illegible. One woman wrote in an email that her ad that advertised a model who was “barely 18” ended up reading as if she were offering 18 models.
‘Lipstick on a pig’
By late 2010, the report says, Backpage was internally reporting that 70 to 80 percent of its ads were being edited, either automatically or by the employee known as a moderator. In an August 2010 email, Ferrer said that 20 moderators were employed to edit ads, including the deletion of “code words for sex for money.”
Backpage would let would-be advertisers know why an ad was censored, telling them what forbidden word was used, the report says. In essence, the Senate report says, this served to train customers about how to post ads that would pass muster.
One moderator described the practice as “putting lipstick on a pig,” according to the Senate report.
What terms should be filtered out became the subject of several of the emails included in the report. In 2011, for example, a manager said he decided to allow the words “hung” and “naughty.” Additionally, users could also use the term “flat rate” next to a price, the email said.
Larkin cautioned Ferrer in a 2011 email about what would happen if the website’s editing procedures were made public. “We need to stay away from the very idea of ‘editing’ the posts, as you know,” Larkin wrote. “I want to be certain that you are comfortable with the revelation of the security items. And the general tone.”
Backpage relied on its filtering system to help it avoid the fate of its main competitor, Craigslist. The Connecticut attorney general had called Craigslist a “blatant Internet brothel” in 2009. That website restricted and then shut down its adult-oriented classified ads.
Finding a new opportunity
In September 2010, when Craigslist shut down its adult section, Ferrer sent an email, included in the Senate report, about the news. “Craig killed his adult section last night in all US markets,” it read. “It is an opportunity for us. Also a time when we need to make sure our content is not illegal.” Ferrer warned that Backpage would be “under close scrutiny by media, craig and AG’s next week.”
Backpage attempted to clean up its site by expanding the list of words or phrases that would trigger rejection of a potential ad entirely.
In October 2010, various public officials and state attorneys general had publicly criticized Backpage or written letters asking it to follow the lead of Craigslist and remove adult ads from its site. That month, the attorney general of Massachusetts held a public hearing on the role of websites in facilitating human trafficking.
This put Backpage in a “crisis” mode, according to emails. Backpage hired a company in India to moderate posts.
In an October 2010 email to Backpage staff based in the U.S., Andrew Padilla, Backpage’s chief operating officer, authorized extra staff and overtime in order to do a four-day clean-up effort of adult ads.
Ads were allowed to contain “HBO type nudity,” he wrote. “We’re still allowing phrases with nuance, but if something strikes you as crude or obvious, remove the phrase.”
Padilla said policing words was most important. “Images aside,” he wrote, “it’s the language that’s really killing us with the Attorneys General. Images are almost an afterthought to them.”
Padilla told the staff to err on the side of caution. “You’re not going to get in trouble for being too clean right now,” he wrote in an Oct. 17, 2010, email.
In December 2010, Ferrer ordered a “deep cleaning” of older ads, removing phrases and images that were allowed under the previous less-stringent standards.
Ferrer wrote that the task was urgent because “CNN is running a report soon.”
Lists of banned terms
In January 2011, in an apparent response to the CNN report, Ferrer sent an email to Padilla suggesting the terms “daddy” and “little girl” be added to the list of filtered terms. Ferrer later suggested that additional words should be added to the filter: “high school,” “school girl,” “cheerleader,” “innocent,” “tight” and “fresh.”
The next month, February 2011, Ferrer instituted a more moderate policy on the ads. He told the supervisor of the moderators in India that employees in Phoenix would be going easy on some types of violations. He said ads that included pricing, the number 69 or photos of breasts covered by arms would be allowed. “Put succinctly, moderators should err on the side of the user,” he wrote.
Padilla and Ferrer also discussed the term “lactating.” Padilla argued it should not result in an automatic rejection of an ad because, “it’s fetish and it pushes the edge at a time when we’re losing our edge.”
That same month, Ferrer, in an email, asked for a list of banned terms so he could use it at a presentation to the National Association for Missing and Exploited Children. Emails show he had another meeting with law-enforcement officials and anti-sex-trafficking advocates in July 2011.
Backpage had publicly touted its role in aiding law enforcement by having staff send alerts if ads potentially contained underage girls or criminal acts. The website had congratulatory emails from law enforcement and a list of cases where it had testified against an accused pimp.
But, according to the U.S. Senate report, Backpage’s use of an automatic filter hurt those efforts by editing out terms before any moderators would see the original ad.
Automating the deletion of key terms, according to the Senate report, “concealed the illegal nature of countless ads and systematically deleted words indicative of criminality, including child sex trafficking and prostitution of minors.”
In 2013, a moderator sent an ad to the National Center for Missing and Exploited Children. But a supervisor, Joye Vaught, wrote to the employee, “I probably wouldn’t have reported this one.” The moderator replied in an email that “she looked drugged and has bruises.” Vaught replied: “She just doesn’t look under 18. These are the kind of reports the cops question us about. I find them all the time, it’s just usually you who sends them.”
Ferrer, in a 2009 email, wrote to an employee that he believed there was very little trafficking of underage girls on the site. He said some emails that claimed certain ads featured underage girls were written by competitors.
“I need verification like law enforcement or multiple complaints from trusted sources,” Ferrer wrote. He said the particular ad the employee raised concerns about “probably was a competitor trying to punish them.”
‘Stop pandering to yahoos’
In January 2012, Lacey offered his staff talking points via email after 14 people were indicted in a child-sex-trafficking ring in Denver that used Backpage. The month before, in Detroit, the bodies of four women were found in the trunk of a man’s car. The accused killer told police he found three of the women on Backpage.
Lacey wrote that the company’s response needed to note that “as deplorable as this case is, and it is appalling, it is one bad case amongst how many millions of ads that involved no one under age.”
Lacey also compared Backpage’s role in the case with services used by other accused criminals. “Drug dealers use cell phones, fed-x (sic),” he wrote. “When you bust them you do not advocate shutting down phone service, overnight deliveries.”
Lacey said the cases were isolated and did not represent “a tsunami of underage trafficking.”
“Prosecute this case, these individuals, get care and treatment for the victims and stop pandering to yahoos,” he wrote.
Within the walls of Backpage, moderators were told not to specifically mention prostitution in any internal notes they wrote about why they deleted an ad. Andrew Padilla wrote to one moderator that “Backpage, and you, in particular, cannot determine if any user on the site is involved with prostitution. Leaving notes on our site that imply that we’re aware of prostitution, or in any position to define it, is enough to lose your job over.”
Adam Padilla, the moderator who was deposed in a civil suit, and whose brother was the chief operating officer, said employees were also told not to discuss their jobs outside the office. “Because there was so much of that, like, nudity and prostitution stuff on a lot of the ads, so they didn’t want, they just told us not to talk about it,” he said.
Padilla, though, also said he didn’t think Backpage created or contributed to the market for online prostitution. “Because if it hadn’t been Backpage, it would have been somewhere else or some other site,” he said.
As of Friday, the adult section of Backpage was completely removed from the website. Previously, clicking on that section had brought up a page that had displayed the word “censored” and offered information about the website’s legal troubles and links to civil-liberties groups.
Meanwhile, under the Dating category of “women seeking men,” a woman named Jennifer posted photos of herself in a bikini and described herself as “Sexy, Skilled & Highly REViEWED.” After her phone number, she wrote the phrase, “Nothing illegal offered here,” next to a picture of a winking devil.
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