Digital Pimps or Fearless Publishers?
The owners of Village Voice Media gamed the online classified business with Backpage.com and made millions. But when it became a breeding ground for child rape, the publishers became something else: defendants.Digital Pimps or Fearless Publishers?
The owners of Village Voice Media gamed the online classified business with Backpage.com and made millions. But when it became a breeding ground for child rape, the publishers became something else: defendants.
On October 6, Carl Ferrer, the goateed CEO of Backpage.com, left his Amsterdam office to visit the online classified-advertising site’s U.S. headquarters. He never made it back to Europe. The 55-year-old was promptly arrested by law enforcement officials from various jurisdictions after his plane touched down at Houston’s Bush Intercontinental Airport. He was then taken to Sacramento County Jail in California and authorities raided Backpage’s mid-rise Dallas office for evidence in the case authorities planned to build against him. The California attorney general announced felony charges of pimping, pimping a minor, and conspiracy to commit pimping against Ferrer. (And yes, these are the real names of charges in California.)
Backpage is the most prominent online destination for on-demand paid sex in the United States, and according to the arrest warrant for Ferrer and others, it made nearly 99 percent of its over $50 million revenue in California from January 2013 to March 2015 from charging for erotic classified ads. It is, in essence, an escort advertising network nestled in a Craigslist knockoff.
Despite its CEO’s arrest, Backpage is still operational. Clicking through the website today, one can see that it is stocked with ads for all sorts of humdrum products, from car parts to studio apartments to overstocked moccasins. Many of its sales categories are sparsely populated. Last week, Brooklyn’s "Roommates" section contained one to three listings a day from people using the website to try to find a stranger to share a home with. It looks like a relic from an earlier era of the internet, with an ugly, spare design that announces how little the site’s dowdy appearance affects its success. Meanwhile, hundreds of emoji-decorated listings from people looking for far more fleeting and intimate meet-ups populate its sexual categories, from the euphemistic "Body Rubs" to the more straightforward "Strippers." There are promises of "Girlfriend Feelings," busty Russians, a "big soft booty white girl" in town for just one more day, women offering to deliver themselves as if they were on Seamless, and so much more. Clicking around for less than five minutes, I saw many butt cheeks. It is, quite clearly, not stringently moderated for explicit content beckoning an exchange of goods for sex.
Backpage’s lurid side has wormed its way into pop culture. Rappers like YG, Vic Mensa, and Migos all name-drop it in songs. (Sample lyric, courtesy of French Montana: "And I ain’t got a Backpage / fucking with them hoes.") Last October, Backpage figured into a viral Twitter story about "hoeism" and murder. The website is a sloppy pseudo-honeypot where police click through hundreds of ads peddling sex before pouncing. In Jacksonville, Arkansas, last year, police dubbed a sting "Operation Backpage" after using the website to nab women selling sexual services. Last month, 10 men were arrested in Colorado after police monitored Backpage to build a sting operation. Also in November, a man who police call a pimp and who allegedly chained teenagers up inside a makeshift bedroom in Detroit was arrested after the teens escaped; a criminal complaint filed against the man says he would arrange "incalls" and other meetups for johns in his ramshackle de facto cell through several Backpage postings.
Ferrer, a former Dallas Observer classifieds salesman, wasn’t in jail alone for long. Michael Lacey and James Larkin, the founders of Backpage.com, joined the company’s CEO the following week, when they turned themselves in in Sacramento after the California attorney general charged each of them with conspiracy to commit pimping. (All three men have since been released on bail.)
"Backpage and its executives purposefully and unlawfully designed Backpage to be the world’s top online brothel," California Attorney General Kamala Harris said in a statement in October. Her office had brought the charges against the men in the middle of what would turn out to be her successful campaign for U.S. Senate.
Backpage general counsel Liz McDougall called the arrests an "election year stunt."
Whether or not it was designed to be a brothel, and whether its owners are neutral web hosts attacked for political gain or nefarious pimps adept at skating the law, is what the court must decide. But what Lacey and Larkin wanted Ferrer to do when they launched Backpage was something less controversial: They wanted him to steer the advertising business that would keep their journalism passion project afloat.
Lacey and Larkin have a history in the newspaper pages, backs and fronts — the Phoenix New Times, L.A. Weekly, SF Weekly, the Miami New Times, the Dallas Observer, and the Village Voice, among others. These papers mixed local investigative reporting, satire, "edgy" columns, and thoughtful culture reviews into young-skewing, provocative, and often excellent journalism. The offices of Backpage.com are housed four floors above the Dallas Observer’s offices. Backpage and the Observer originally shared a floor, but the paper moved in an attempt to establish distance between Village Voice Media’s editorial side and its digital classifieds operation. So Ferrer never left the top floor in Texas. But he wasn’t around in the beginning, in Arizona. Back then, it was just Lacey and Larkin.
The Backpage saga started with the most flamingly liberal of gestures. Before he was jailed over an alleged pimping conspiracy, editor Mike Lacey was a completely different strain of anti-establishmentarian. "We started the Phoenix New Times back in 1970 at Arizona State University because the campus police said we couldn’t lower the flag to half-mast after Kent State," Lacey told New York magazine in 2005, just as he was taking over The Village Voice. "We didn’t want to burn down the ROTC building, we just wanted to lower the flag because it was the right thing to do. Somehow, we thought we needed to start a newspaper to get the nuances of that point across. And to have a little fun. Throw a little spirit of Mad Magazine into the debate."
The interview was Lacey’s attempt to calm New Yorkers’ nerves shot by the notion of a desert-raised hustler taking the helm at the Voice, the struggling but still venerable ur-alt-weekly. Along with his far quieter business partner, Jim Larkin, he had nurtured one Arizona alternative newspaper into a ballsy reporting powerhouse and started a news fiefdom. The Phoenix New Times started as a disorganized lark for college kids, but it was unusually preoccupied with actual, hard-hitting journalism. Beginning in 1970, they spun their small paper into a national media company, gathering a stable of around a dozen alt-weeklies; the apex of its acquisition phase was the 2005 purchase of the Voice. As a capstone, they adopted the Village Voice Media name.
"Lacey, in my estimation, was a journalism-first guy. He actually cared about doing good journalism," a former Village Voice Media employee told me. "He’s the kind of guy who likes saying fuck you to people in power. The Backpage stuff seemed more like Larkin’s territory."
"Numbers guy" Larkin stayed out of the limelight and steered clear of editorial, but Lacey welcomed attention. He developed a reputation; he loved fighting and scotch and words, like Hemingway’s corpse reanimated in Arizona. He came to work one day with his thick knuckles inked with a threat or a blessing, depending on the day: H O L D F A S T.
"He’s a dick, but a dick who believes he has principles," a former Village Voice employee explained.
The bellicose publishers knew they faced an uphill battle while buying the Voice, but seemed to welcome the struggle. They relished fights; after purchasing SF Weekly in 1995, Lacey reportedly vowed to put its chief competitor, the San Francisco Bay Guardian, out of business, which led to a courtroom fight over predatory ad pricing in 2008. "They’re cowboys. They’re really cowboys. They’ve always been that way, and for lack of a better term, they’re stubborn," California collections lawyer Jay Adkisson, who helped the Guardian, told The Stranger in a postmortem of the case.
At the time of the takeover, former Village Voice Media CEO David Schneiderman blamed Craigslist for the woes suffered by papers that relied on classified ads. "Craigslist is the biggest single crisis the Village Voice has faced in its whole 50 years," he told New York magazine. To fight Craigslist, the owners created an imitator, and promoted rank-and-file ad man Ferrer into a new position. Backpage.com — their solution to the company’s crisis — was born, janky and unlovable, in 2004. According to a former Village Voice Media coworker, the site was Ferrer’s idea, concocted as a way to compete with Craigslist. Like Craigslist, it had an "Adult Services" section. Unlike Craigslist, the section wasn’t very popular.
The publishers’ troubles with law enforcement preceded Backpage. In 2004, the Phoenix New Times published a series of articles on Maricopa County Sheriff Joe Arpaio’s real estate dealings. This enraged Arpaio, and he sicced a grand jury on the paper for publishing his address as part of its reporting. During the proceedings, a prosecutor issued a wild subpoena in 2007 demanding that the newspaper turn over IP addresses, names, and other identifying information for every website visitor since 2004, including which sites they’d visited before, as well as all of the paper’s notes and documents on the sheriff. Larkin and Lacey published the subpoena contents in a withering item called "Breathtaking Abuse of the Constitution." They were arrested later that day on charges that they revealed grand jury secrets. The pair later sued Maricopa County for false arrest; the county settled for $3.75 million. Larkin and Lacey donated $2 million of the award to Arizona State University’s Walter Cronkite School of Journalism. The showdown with Arpaio added to the duo’s swashbuckling Media Bad Boys mythology.
The idea of an alt-weekly chain building a revenue model around sex ads made historical sense. This genre of classified had long been a part of the business model, having generated money for alt-weeklies since their print beginnings, including the classified sections for Lacey and Larkin’s media properties. Even the tony, genteel New York Review of Books sells ads for phone sex and erotic massage to bolster finances. "The Village Voice carried adult advertising for decades before the internet; the web, Craigslist, and Backpage have merely caught up with America’s original alternative newspaper," Lacey retorted to the New York Observer after it published an article critical of Backpage. "Adult content is routinely found on Facebook, the Yellow Pages, cityvibe, eros.com, escorts.com, theeroticreview.com, myprovider.com, Google, Twitter, YouTube, and at least two dozen other well known, if not personally patronized, locations."
Lacey and Larkin operated The Village Voice for seven years before selling it, along with their repertoire of alt-weeklies, in 2012. Surprising coworkers, the rabble-rousers gave up their long-standing journalism empire in their late 60s to focus on the sleazy ad operation they had originally created to act as a sin-eating business model. "They gave us this bullshit story about, ‘Oh, well, we don’t want to taint the paper, we don’t want to taint the paper.’ Except Lacey and Larkin went with the money. They didn’t care about being tainted," a former Village Voice Media employee told me.
As criticism, investigations, and legal fights mounted, though, the pair ultimately sold Backpage.com to two Delaware-based holding companies, and then a Dutch company was created as its new "parent" in December 2014. "You know why they set it up in Amsterdam?" a former employee asked me. "Because prostitution is legal." Ferrer remained the CEO, and the arrest warrant claims that Lacey and Larkin each received a $10 million "bonus" in 2014 — before the sale. (Backpage attorney Bob Corn-Revere says that the duo has not had any ownership positions within the company for two years.)
The reporters, writers, editors, and other newspaper employees who had once been in thrall to the odd partnership moved forward in an uncertain industry; many did not think of their former bosses again until an unusual episode this year — as chronicled in a City Pages story and corroborated by several former Village Voice Media employees who spoke with The Ringer: Through a law firm, Lacey asked ex-employees for their current addresses, and then sent checks to those who replied. I have spoken to former employees who have, respectively, received the checks and cashed them, held on to them, or considered donating the money to a sex trafficking victim’s organization.
There are plenty of working theories about why Lacey would send his employees this money — to remind fierce reporters that they owed paychecks and career-building years to a company funded by sex ads, perhaps, or to entangle former employees into the current scandal so they’d feel obligated to recuse themselves from reporting. "Whatever the motivation is, I would say there’s a good chance it was to move some money around or get rid of some money. But Lacey’s an eccentric guy," a former employee said. "If none of this Backpage stuff had happened and I got a check for $5,000 from Mike Lacey one day, I wouldn’t think it would be so strange, coming from him." Another employee hypothesized that Lacey was simply getting wistful about old workers he’d "raised hell" alongside.
Lacey is supposed to be a brawler, an ornery story-wrangler. Larkin is supposed to be his loyal moneyman. Together, they intended to give the world the middle finger with old-fashioned journalism. That crusader narrative doesn’t square with a business that law enforcement authorities say facilitates child rape. The torture of the young — enslavement, degradation — that’s for Real Bad Guys, not Media Bad Boys.
Backpage is a favored target for ambitious politicians, and frequently cited in sex worker stings. This fall’s arrests, however, marked an ignoble milestone: the first time any of its employees had been arrested in connection with the escort ads hosted on its website.
The high-profile arrests were triumphs amid tumult for California Attorney General Harris. The 51-year-old was running for the first California U.S. Senate seat to open up since 1992. "Perhaps more than any other rising Democratic star running for federal office this year, Harris embodies the future the party would like to imagine for itself in the fast-approaching post-Obama era," The New York Times Magazine wrote in a profile of the attorney general earlier this year. On November 8, she won that Senate race and became the second black female senator-elect in U.S. history. She is an Obama favorite, and the tattered DNC will likely hoist her higher as an anti-Trump contender. "I stopped the bad child traffickers" is a knockout political narrative, one of the rare tales that seems to easily transcend partisanship. The arrests reaped accolades from powerful people. Senator John McCain, for instance, released a statement applauding Ferrer’s arrest. "We cannot allow this evil to endure," Texas Attorney General Ken Paxton said in his statement. (The arrests followed a joint investigation by the California Department of Justice and the Texas Attorney General’s Office.) The executives at the National Center for Missing and Exploited Children (NCMEC) were also gratified.
The nonprofit views Backpage as so tightly tied to the sale of children for rape that the website is now the first place it searches for children reported missing. In a 2016 amicus brief, the organization outlined the ways in which it believes that Backpage has been deliberately optimized to keep the child trafficking industry going, including having relaxed posting rules for escort ads while requiring other sellers to provide valid telephone numbers. It also describes a case in which one child was "sold for sex more than 50 times on backpage.com beginning when she was 12 years old." The organization has worked on more than 420 cases in which children were trafficked through Backpage.
"I don’t know that anyone really believes that there’s a way, with a website offering those services, to completely eliminate [the sex trade]," Staca Shehan, the executive director of the NCMEC’s Case Analysis Division, told me. "But there’s a lot to be done to reduce the likelihood, to reduce this website as a target to buy and sell children for sex."
The relationship between Backpage and NCMEC was originally cooperative, but Shehan says it soured in 2013, when the center decided the site’s crackdown attempts were theater. She said that Backpage would voluntarily report that it took down one advertisement for a minor, but that her researchers would discover the same image of the child in many other posts that remained online and untouched. This infuriates Shehan. "Why would you report one, and not all the other ones that your website is hosting? Why wouldn’t you remove that ad if you suspect that a child is being sold for sex and block the individual user?" she said.
In March, the Senate voted unanimously to hold Ferrer in contempt for failing to comply with a subpoena for a separate investigation into Backpage’s activities — the first contempt authorization in more than 20 years. This investigation paints Backpage as a deliberately sinister operation, claiming that the company edits advertisements to make them look less like sex trafficking. "Our investigation showed that Backpage ‘edits’ advertisements before posting them, by removing certain words, phrases, or images. For instance, they might remove a word or image that makes clear that sexual services are being offered for money. And then they would post this ‘sanitized’ version of the ad," Senator Rob Portman said in a statement. "In other words, Backpage’s editing procedures, far from being an effective anti-trafficking measure, only served to sanitize the ads of illegal content to an outside viewer."
While lawmakers like Portman see Backpage as a demonic helpmate for rapists and abusive pimps, the website has a reputation as a valuable safety tool within some sex worker communities.
Consenting, adult sex workers often praise Backpage for helping minimize the risks of their job. Sex worker advocacy groups have condemned the prosecution of Ferrer, Lacey, and Larkin. In San Francisco, sex workers and supporters gathered to protest the Backpage arrests. "This culmination of a three-year investigation by the California government is a shocking waste of resources for a political stunt that leaves sex workers and trafficking victims stigmatized, isolated, and more vulnerable to violence," the Urban Justice Center’s Sex Workers Project said in a statement condemning Ferrer’s arrest.
The phantoms of other shuttered and beleaguered sex ad sites worry sex workers who view digital classifieds as instrumental to their safety. RedBook, a long-running Bay Area hub for sex work ads, was shut down after an investigation by the IRS and FBI in 2014. "Authorities say the San Francisco–based website, which primarily served California and Nevada, facilitated prostitution and had to fall. Sex workers say the site provided a meager safeguard against predators, pimps, and cops," the Sacramento News & Review wrote. "When it disappeared, the most at-risk workers — those of limited means and greatest need — were displaced to the streets."
Shehan has stressed that NCMEC is focused solely on Backpage as a facilitator of child abuse, and that it is unconcerned with sex workers who are consenting adults. And children are included in the arrest warrant. "Backpage acknowledges that pimps routinely pay Backpage for ads trafficking children for sex," it reads. The warrant cites testimony from young women, including minors, who had been pimped out and raped.
However, the prosecutors are going after these men for facilitating consensual adult sexual encounters as well as child abuse, and despite the emphasis on crimes against the young, Harris is prosecuting these men for their role in hosting advertisements for consenting adults as well.
While lurid and sad, the arrest report for Ferrer, Lacey, and Larkin has another striking feature: None of the incidents recounted involved the men arranging for or paying for sex, nor did they involve the participation of the men authorities describe as "pimps." There is no mention of "pimping" in the traditional sense, the act of controlling sex workers, or arranging meet-ups, or taking a cut of their income. The men were arrested as pimps simply by dint of owning and operating a website where other people pimped, even though Backpage’s disclaimer instructs users to report underage trafficking and illegal activity.
The arrest warrant describes how a California Department of Justice agent personally called Ferrer to alert him of an illegal ad. Upending expectations, the warrant notes that the CEO promised to promptly remove this ad — and then kept his word and promptly removed it. So it isn’t that the website lacks moderation; the allegation is that Backpage’s moderation isn’t sufficient enough, and that insufficiency is tantamount to the act of pimping.
It is an unusual stretch of the definition of a very old crime. By arresting Backpage’s current and former executives, Harris was sending a message: If the definition of pimping hadn’t yet changed, she was trying to change it.
It didn’t take long for Craigslist to become the online destination for sex work ads. Connecticut Attorney General Richard Blumenthal wrote a letter to Craigslist in 2008, asking the website to remove sexual solicitations and to better enforce its rules, but the government campaign against the site reached its first peak when an Illinois politician took it up as a pet cause. Before Kamala Harris, there was Cook County Sheriff Tom Dart: In 2009, Dart filed a complaint against Craigslist, seeking to shut down its Erotic Services section as a public nuisance. "The blatancy of erotic services has made Craigslist the bete noir of law enforcement," Dart’s complaint says.
Although the lawsuit was thrown out — more on that soon — Craigslist shut down its Erotic Services section in 2010. It didn’t do so without a fuck-you, though, placing the word "Censored" over its retired section. Killing law enforcement’s bete noir did not eradicate sex worker ads from the website, of course. What it did was push sex workers to look for more hospitable sites. When Craigslist’s sex ads petered out, Backpage began to boom.
While Craigslist slinked away from its problems by shuttering its erotica section, websites that continued to operate have fared far worse. Southwest Companions, a website for sex workers ran by a former interim president of the University of New Mexico and a New Jersey physics professor as "a hobby," was the target of a similar lawsuit for facilitating prostitution. The lecherous academics became professional pariahs, and they were arrested on charges of promoting prostitution. A state judge cleared them after ruling that the website was legal and was not a "house of prostitution" in 2012.
As I mentioned earlier, RedBook was shut down — and its 54-year-old founder, Eric Omuro, arrested on charges of facilitating prostitution. "Omuro’s guilty plea marked the first-ever federal conviction of a website operator for the crime of facilitating prostitution," Wired reported on the case at the time. In 2015, the Manhattan offices of Rentboy.com, a gay-focused escorting site, were raided. CEO Jeffrey Hurant and six other employees were arrested on charges of promoting prostitution. Charges against the employees were dropped, and Hurant pleaded guilty in October. Mimicking the language used to describe RedBook, Craigslist, and Backpage, Rentboy was dubbed an "internet brothel" by authorities.
As competitors were either snagged by law enforcement or scared away from the sex ad biz by the specter of law enforcement, Backpage emerged victorious and immune-seeming from its early legal scuffles, even as lawsuits sullied the reputation of its owners. The affidavit in the case against Ferrer, Lacey, and Larkin claims that Backpage made more than $3.1 million during one week in 2015 from sex ads, and that the website derived 99 percent of its revenue from sex ads from January 2013 to March 2015. This year, Bloomberg Businessweek called Backpage "a fierce standard-bearer in the war over online free speech, wrapping its business model in the First Amendment to fend off enemies in law enforcement and government."
The aforementioned Sheriff Dart was one of those more prominent enemies Backpage fended off. The Illinois firebrand transferred his vendetta against Craigslist to Backpage. Visa and MasterCard stopped processing credit card transactions on the adult services side of Backpage in 2015 after Dart lobbied the companies in a letter requesting that they cut ties with the classifieds site. "Sheriff Dart’s Demand to Defund Sex Trafficking Compels Visa and MasterCard to Sever Ties with Backpage.com," a press release from the sheriff’s office stated. Backpage sought an injunction against Dart last year; while it was initially denied, Backpage won in appeals. Backpage argued that Dart was violating First Amendment rights by limiting freedom of expression. In the November 2015 decision, a panel of Circuit Court judges agreed. "The sheriff ripostes that he’s not using his office to organize a boycott of Backpage by threatening legal sanctions, but merely expressing his disgust with Backpage’s sex-related ads and the illegal activities that they facilitate. That’s not true, and while he has a First Amendment right to express his views about Backpage, a public official who tries to shut down an avenue of expression of ideas and opinions through ‘actual or threatened imposition of government power or sanction’ is violating the First Amendment," the ruling reads. The Supreme Court refused to hear Dart’s appeal, effectively shelving one crusade against Backpage.
The newspapers owned by Lacey and Larkin started an editorial offensive as lawsuits mounted, law enforcement sniffed, and pundits opined. (The New York Times’ Nicholas Kristof was a particularly dogged opponent, the Tom Dart of journalism.) Two lengthy feature stories appeared in the company’s papers, looking critically at the supposedly burgeoning child trafficking issue. One of the stories called it the "underage-prostitution panic" and mocked Ashton Kutcher for exaggerating a statistic about children trafficked for sex. "The stories suggested that nonprofit operators gain financial support by inflating the magnitude of the child sex trade," the L.A. Times noted in 2011.
But Backpage’s many opponents didn’t buy into the notion that sex trafficking claims were overblown. More critics — including victims of child trafficking — tried to hold Backpage’s owners responsible for what people bought and sold on their site. In 2010, for example, a Missouri-based 15-year-old sued Village Voice Media and Backpage over claims that they facilitated child pornography and child prostitution. The suit was dismissed. "Congress has declared such websites to be immune from suits arising from such injuries. It is for Congress to change the policy that gave rise to such immunity," U.S. Magistrate Judge Thomas Mummert wrote.
"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," First Circuit Judge Bruce Selya wrote in a 2016 decision. In that case, three anonymous victims, all minors, sued Backpage, saying that the site facilitated sex trafficking in Massachusetts. One girl alleges she was raped more than 1,000 times at the age of 14 by people who found an ad selling her on Backpage. Despite sympathizing with the plight of the Jane Doe plaintiffs, the First Circuit ruling disagreed that anything Backpage did differed from the functions of a traditional web publisher, just as Mummert’s ruling had before it.
In 1995, Time released a since-discredited cover story on the horrors of the internet. The child model’s face is bathed in blue computer-glow, the word "CYBERPORN" in all caps below his spooky open mouth. It was corny, but it made people pick up the phone and dial their representatives; panic over the internet’s perverting tendencies was at an apex. Congress passed the Telecommunications Act in 1996, overhauling law surrounding that industry for the first time since 1934, and the legislation included the Communications Decency Act, intended to regulate "indecency" and obscenity online. The main purpose of the CDA: to make sure no kids saw porn online. It made transmitting "offensive" material that minors could see punishable by two years in prison and a $250,000 fine. It was like Tipper Gore had snuck into Congress to write telecommunication legislation.
People hated it. Remember when websites went "black" to protest SOPA and PIPA, the bills that would have essentially blacklisted parts of the internet, a few years ago? They protested in a similar way against the CDA, and for good reason: Much of it was unconstitutional. The Supreme Court struck down the anti-free-speech provisions in the CDA in 1997. Ironically, this legislation — developed to clean up the internet from pornography and other "indecency" — now serves as the single most powerful defense that websites use to protect themselves from liability for the actions of their users.
And now, instead of conflicting with the First Amendment, one section is the most important protection for digital publishers against prosecution. Section 230 states that website operators and service providers are not legally liable for the content that their users post. It even includes a "Good Samaritan" clause to ensure that web companies that attempt to moderate criminal and other unsavory content off their sites are not penalized for making mistakes or incomplete moderation.
This section is frequently cited when judges dismiss civil suits against Backpage. "Congress did not sound an uncertain trumpet when it enacted the CDA, and it chose to grant broad protections to internet publishers," Judge Selya’s ruling reads. "Showing that a website operates through a meretricious business model is not enough to strip away those protections. If the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation."
"Facebook, Twitter, Instagram, Snapchat, web hosting ISPs — all of these companies that provide these [online] services," Electronic Frontier Foundation staff attorney Sophia Cope told me. "In 1996, Congress realized that if these internet intermediaries had maximum exposure to legal liability, there’d be a severe disincentive for them to exist. The small-shop entrepreneurs and startups, they wouldn’t even make an attempt, because if one user did something illegal on my platform, I’d be liable for what my user did."
"Instead of holding Twitter liable for a defamatory tweet, the person who wrote the tweet is supposed to be held responsible. And you could see, if there was no protection for Twitter, they’d be bankrupt pretty quickly," Cope said.
Section 230 is why Jack Dorsey is not in jail for all the ISIS tweets. It’s why you can’t sue Kevin Systrom if your son overdoses on illegal drugs purchased via Instagram. It’s the reason I can’t sue Evan Spiegel for harassment if a dude sends me unsolicited pictures of his dick on Snapchat.
"This protection has been absolutely essential to the development of the internet in this country and really around the world," the Center for Democracy & Technology’s Emma Llansó told me.
Without a legal shield, Llansó says web providers would be permanent fixtures cowering in front of judges, vulnerable to a constant barrage of frivolous lawsuits. "They’d be in court all the time. And they’d run up inordinately high legal bills, even if they were ultimately successful in defending a case."
"Just the prospect of having to defend a court case over weeks and months would really encourage hosts to censor, with a heavy hand, anything their users post," she continued.
Harris, as California attorney general, has sought other ways to weaken this law. In 2013, she joined 46 other state attorneys general in a complaint to Congress that asked legislators to amend CDA so that it no longer preempts state criminal law. Congress has thus far not made the amendment, which means that Section 230 continues to supercede state law — including those used to charge Lacey, Larkin, and Ferrer.
Legal immunity holds in this way only as long as Backpage remained the host of content and not the developer of content.
Despite the shield that Section 230 provides to web publishers, in September 2015 the Washington state Supreme Court ruled that Backpage is not immune to state lawsuits against it, because former child sex workers suing the company alleged that it had purposely designed its content requirements to help pimps. "It is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking," Justice Steven Gonzalez wrote.
At a November 16 hearing in state Superior Court in Sacramento, Judge Michael Bowman decided to give Attorney General Harris more time to prepare her case — but Bowman made it clear that he sees Section 230 as a major obstacle for the plaintiff. The next hearing for Backpage’s trio takes place on December 9.
"Any rational mind would concur that the selling of minors for the purpose of sex is particularly horrifying and the government has a right and a duty to protect those most vulnerable victims," he wrote. "That legitimate state interest is not absolute, however, and must be constrained by the interests and protections of the First Amendment to the U.S. Constitution." Bowman emphasized that it is Congress’s job — not a judge’s — to change legislation if it wants to weaken Section 230.
"Whenever there is unpopular speech or an unpopular speaker, there is pressure on maintaining the integrity of Section 230," Backpage attorney Bob Corn-Revere told me. "Thankfully, the courts have resisted that. The decisions have been really uniform in maintaining the broad immunities that Congress created with Section 230, and I expect that judicial trend to continue."
There is a chance that Harris will attempt to argue that Ferrer, Lacey, and Larkin were not simply intermediaries, that they had ordered the actual words of the sex ads to be changed to avoid criminal prosecution. The Senate’s Permanent Subcommittee on Investigations wrote during its investigation, "We find substantial evidence that Backpage edits the content of some ads, including by deleting words and images, before publication. The record indicates that in some cases, these deletions likely served to remove evidence of the illegality of the underlying transaction." Perhaps Harris has obtained this evidence and plans to present it to the court. However, there is no mention of that angle in the arrest warrant. Merely establishing that Backpage is bad at moderating content is probably not enough to disregard Section 230. In fact, as I mentioned earlier, the Good Samaritan clause specifically immunizes web hosts and services even if they alter the content of third-party users. This provision exists so that these sites won’t be afraid to moderate content. After all, if a blogger is vulnerable to an expensive lawsuit for trying to remove racial slurs and hate speech from their comments section, for instance, that’d incentivize them not to moderate at all.
To look at how doomed the internet would be without Section 230, look no further than a lawsuit that occurred before the Communications Decency Act was enacted, Stratton Oakmont v. Prodigy. If the name "Stratton Oakmont" sounds familiar, that may be because it’s the name of the quaaludes-fueled, bombastically evil Wall Street firm portrayed in Wolf of Wall Street. An anonymous user trash-talked a Stratton Oakmont employee for committing fraud on Prodigy’s "Money Talk" messaging board. The firm sued and in 1995 the court found that Prodigy was liable for this anonymous (and eventually vindicated) comment.
Now imagine if Section 230 didn’t exist in 2016. Forget The Ringer getting sued out of business for rude pieces about powerful people. Without Section 230, Medium could get sued into oblivion for something someone says in the responses section of our website. All the major social networks have deep pockets, but considering the recent spate of litigious billionaires, newer media hosts like Gab.ai could get wrecked.
Backpage is a compelling scapegoat for prosecutors. Its trio of old, white men, made rich by helping others sell sex, is hardly sympathetic. Lacey’s defiant knuckle tattoos are quirky, but it’s hard to find them noble after reading about a 13-year-old whose pimp tattooed his name across her small eyelids "marking her as his property."
Without the buffer that Section 230 provides, free speech will certainly be chilled, as publishers will fear lawsuits for objectionable content. As President-elect Trump and high-profile supporters like Peter Thiel have embraced the concept of litigating enemy publishers out of existence, weakening this law at this time could have especially devastating consequences. This is why Harvard constitutional law professor Noah Feldman described Ferrer as an "unlikely defender of all our rights" in a column for Bloomberg View criticizing Harris’s legal argument.
If there is crime on a street, the way to stop it is not to bulldoze the street or throw the city planners in jail. The line of thinking that fingers these men as pimps has obvious holes in it. If a couple stays at an Airbnb and the man kills the woman, Brian Chesky shouldn’t be handcuffed as a murderer. Even if 500 men killed their partners at Airbnbs all over the world in one night, it wouldn’t mean Brian Chesky is a murderer.
It’s not clear that wounding Backpage would affect the sex trade, including illegal child trafficking, in any meaningful way. Baylor University economics professor Scott Cunningham studies risky and criminal economic behavior, with special attention paid to how sex workers operate online. He does not believe that prosecuting the Backpage heads will have any meaningful long-term impact on the digital sex trade. "I’m very skeptical that [the lawsuit] is going to somehow lead to permanent disruption," he told me. "I still think that clients and prostitutes are going to find each other."
"The economic gains from trade are so large, I think that the market will figure out a way around it — unless it really does handicap internet service providers by weakening the Communications Decency Act," Cunningham said. "Then it may do something."
The rise of "internet intermediaries" like Facebook, Twitter, and Reddit (and, yes, Backpage) has resulted in a democratization of platform. Now anyone with a Wi-Fi password or data plan has a bounty of places to speak in public or semi-public digital spaces. This lowered barrier to publishing has led to major cultural changes, some good, some bad. It is inarguably, flagrantly bad that it’s easier to target children because of online classified sites. And if the accusations levied by the Senate and the National Center for Missing and Exploited Children are true — if Backpage’s operators and founders have deliberately not done all they can to stop the facilitation of child rape — well, that makes them mercenaries and menaces.
What it does not make them is pimps.
An earlier version of this piece gave the incorrect location for a sting that police dubbed "Operation Backpage"; it was in Jacksonville, Arkansas, not Jacksonville, Florida.