Secret Memos Show the Government Has Been Lying About Backpage

For nearly a decade, Backpage has been demonized by politicians, denounced in legislatures, and dramatically mischaracterized by the press, Hollywood, and well-funded activist groups. As early as 2010, top prosecutors from 21 states claimed the classified-ad platform was “exploiting women and children.” In 2012 Washington state passed the first (but not last) law aimed specifically at toppling Backpage, and by 2015 U.S. senators were investigating the company.

Though the Department of Justice shut down Backpage.com in 2018, it still activates strong scorn in some corners. (“They were selling children,” the California senator and Democratic presidential candidate Kamala Harris said in March.) Several founders and former executives of the company—arrested last year on federal charges of conspiracy, facilitating prostitution, and money laundering—are now awaiting a 2020 trial, as they try to fend off prosecutors eager to seize their assets and disqualify their lawyers.

“For far too long, Backpage.com existed as…a place where sex traffickers frequently advertised children and adults alike,” said then–Attorney General Jeff Sessions upon their April 2018 arrest. U.S. Attorney Elizabeth Strange alleged that Backpage made “hundreds of millions” by “placing profits over the well-being and safety” of victims.

Claims like these have always been bogus. Now, thanks to memos obtained by Reason, we have proof that prosecutors understood this all along.

A Tale of Two Memos

In April 2012, two federal prosecutors sent their boss a memo about Backpage, the site that had, since 2004, been operating like a parallel Craigslist. What would unravel over the course of the 24-page document contradicts almost everything we’ve heard from federal authorities about Backpage since.

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.

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.

This memo—subject: “Backpage.com Investigation Update”—and the earlier one from Crisham and Swaminathan would wind up being accidently sent by federal prosecutors to Backpage defense lawyers last year. But both would be ruled off-limits for defense use, placed under seal, and only subject to public courtroom discussion last week after prosecutors tried to sanction defendants for a few paragraphs from the memos appearing in a June Wired article.

“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. But the matter didn’t stop there.

Washington-based federal prosecutors kept trying to compel more internal documents from Backpage. A few people whose ads were posted on the site when they were underage began to sue (and lose) in civil court. In 2015, Illinois Sheriff Tom Dart threatened sanctions against credit card companies that kept doing business with Backpage, forcing the company to sue for relief. Backpage won that one too, but not before being forced to first make ads free and then find alternative payment methods, like accepting checks and bitcoin, for ad payment (moves prosecutors will later use against them in the money laundering case).

Also in 2015, Congress passed the “Stop Advertising Victims of Exploitation” (SAVE) Act relying almost exclusively on anti-Backpage rhetoric, and the Senate Subcommittee on Permanent Investigations started subpoenaing Backpage records and testimony. The following year, Kamala Harris (at that point still top prosecutor for California) twice had Backpage CEO Carl Ferrer and former owners Michael Lacey and James Larkin arrested on (unsuccessful) pimping charges.

Backpage leadership started 2017 being hauled before Congress to testify on their supposed “knowing facilitation” of child sex trafficking and ended the year the subject of a propaganda film (“I Am Jane Doe”) promoted by the likes of comedians Amy Schumer and Seth Meyer and narrated by actress Jessica Chastain. Josh Hawley—then the newly-elected attorney general of Missouri and now an anti-technology crusader in the U.S. Senate—also went after Backpage that year, saying it “directly and actively promoted illegal sex trafficking.”

By the time the FBI raided Lacey and Larkin’s homes, tossed them in jail, and seized the site in April 2018, few public figures would defend Backpage or those associated with it. Years of much-hyped horror stories about the site and heinous claims about its leaders had been coming from all angles—Democrats, Republicans, women’s groups, religious groups, attorneys general, actor-activist Ashton Kutcher, state and national lawmakers, The New York Times, the McCain Institute, the FBI, movies, newspaper ads, billboards, and much more. The preferred narrative about the site was clear, and nearly impenetrable.

Which is why these memos from 2012–13 pose such a problem. They show that years’ worth of hand-wringing and hysteria over Backpage has been built on lies.

 

“Backpage genuinely wanted to get child prostitution off of its site”

The core claim against Backpage has always been that it enables underage prostitution. Over time, this evolved from a more modest assertion—that any site allowing adult ads would inevitably attract some posts by minors—to claims that Backpage was uniquely negligent in this capacity, indifferent to the plight of victims, and perhaps even actively encouraging sex traffickers to use the site. (“We [tried to] make them realize it was not only legally but also morally wrong to sell children,” but “they wouldn’t hear of it,” Cindy McCain told The Arizona Republic in 2016.)

Back in 2012 and 2013, federal prosecutors privately expressed a quite different outlook.

But first—lest anyone think the more recent rhetoric reflects changes at Backpage since 2013—it’s important to note that most of the actions covered in the Senate investigative report and much of the subsequent criminal indictment come from this 2012–13 time period or earlier. And, since then, neither civil court cases nor a variety of official investigations has uncovered anything wildly different than what was found by the Washington-based U.S. attorneys.

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.”

Ernie Allen, then in charge of NCMEC, thought so too. He had told prosecutors he believed Backpage was genuinely trying to combat underage ads, although “use of the Internet to market commercial sex was so fluid that any system of moderation and reporting was destined to fail” (as prosecutors paraphrased).

Backpage executives—including CEO Ferrer and then-owners Lacey and Larkin (who sold Ferrer the company in 2015)—had been working closely with the quasi-governmental children’s group to establish best practices. They weren’t about to give up on all adult advertising, which Lacey and Larkin had been publishing in the back pages of their weekly print newspapers since the 1970s. But Backpage took to heart other steps suggested by authorities.

For instance, not only did all ads featured a “Report Ad” button, with an expedited process for folks reporting suspected sexual exploitation, but the site also featured prominent links to the NCMEC CyberTipline. And while most sections of Backpage were free for users, “Backpage followed Craigslist’s policy, initiated at the suggestion of NAAG, of charging a fee for each adult services advertisement,” something NAAG championed for its ability to reduce ad volume and yield evidentiary data for law enforcement.

In 2011, Backpage staff flagged 2,695 ads for NCMEC review, according to the NCMEC president’s testimony before Congress. He also said that at the group’s request, Backpage leaders had begun stepping up the number of reported ads

Later, Allen and NCMEC would insinuate that the increase was evidence of a spike in child sex trafficking and/or of Backpage being the biggest online proponent of it. But back then, Allen admitted Backpage had done more monitoring and proactive reporting than any other site in adult advertising.

Backpage seems to have been taking an especially cautious approach. Operations manager Andrew Padilla told moderators to flag any sex work ads where a poster looked to be under age 21, and in general to “be over-inclusive,” according to the Washington-based prosecutors. They also note that, in many cases, not even the most careful moderators may be able to discern an ad subject’s age.

Many adult ads used only partial photos. And some teens “may simply appear to look older” than they are, states the 2012 memo. “It is difficult for even trained investigators to conclude” age from photos, making it hard to say Backpage monitors should have been capable of this “extraordinarily difficult” task.

Interestingly, investigators found Ferrer had proposed authorities provide Backpage with phone numbers of those “known to be involved in juvenile prostitution,” so it could use filters to flag and automatically report attempted use of those numbers. Such a system “might be more useful than just look at the pic and saying the model looks too young,” Ferrer reportedly told Agent Vienneau in 2012. It could also help find minors no matter what part of the site—adult, services, dating, etc.—on which their ads were placed.

Authorities declined to follow up on Ferrer’s idea. (McNeil and Swaminathan do suggest moderators should have been given more “specific criteria,” whether this “be body fat, breast development, or other features,” for determining from photos if someone is under age 18—a proposal that manages to come across both creepy and clueless.)

Later, critics would suggest that Backpage was uniquely reckless in its age verification processes. (The Senate report even claims the whole point of telling users they must be 18-plus to post was so minors would know to lie about their age.) But back in 2012, prosecutors admitted that Backpage measures “were standard across the tech industry and online content purveyors.” Mandating “additional age verification protocols or procedures is both impractical” and a “limitation on free speech,” which implemented broadly “would bring online business to a halt, as it threatens the very fabric of the internet.”

 

Illegality of Adult ads “is not so plain” 

Since child sex trafficking charges were a non-starter, prosecutors wondered if a case could be made that Backpage recklessly promoted and profited off of prostitution. While prostitution itself is not a federal crime, sex for pay is criminalized in most of the country, so using a tool of interstate commerce (the internet) with the intent to facilitate prostitution could count.

But there was a problem with this theory, too. Several, in fact.

“Remarkably,” the 2013 memo said, no one in or outside Backpage would “admit the company knowingly accepted adult prostitution advertisements.”

This wasn’t the only surprise for the investigators—who, to their credit, seemed willing to actually check their initial assumptions. In so doing, they highlighted how many supposedly illicit activities on Backpage may not have been illegal at all.

“As we are learning in this investigation, women posing in sexually suggestive poses, wearing virtually nothing and advertising various forms of sexual massage and other ‘good times'” does not necessarily imply exploitation or even illegal prostitution, noted McNeil and Swaminathan:

Upon closer analysis of the adult web market, it is clear that there are many adult services which come very close to prostitution, but which are lawful. For instance, it is legal to advertise to pay actors to have sex in a film….It is also legal to offer or solicit sex, so long as it is not in exchange for money. Thus, Backpage permitted express references to sexual acts in its adult personal section. It is also legal to offer to be a ‘sugar daddy’ [and] likewise, strippers or escorts may be paid to simulate sex for a fee, to dance or perform solo sex acts, to provide companionship, and to give ‘sensual’ massages. There are no rules which prohibit strippers or genuine escorts from posing in sexually explicit positions or from giving hands-on therapy. While someone who has little experience with the adult services market may readily conclude that Backpage’s escort advertisements offer prostitution services, such a conclusion is not so plain after one recognizes how much sexually explicit commercial conduct is lawful.

In any event, Backpage did try to ban outright illegal activity in ads. Overall, the company’s conscientiousness and cooperation on this front presented “a very substantial hurdle to any prosecution,” wrote McNeil and Swaminathan in 2013.

“In the course of introducing evidence about what Backpage did not do to monitor its site and exclude prostitutes, much evidence would be admitted about what Backpage did do to monitor its site,” they said. The court would likely hear about the “express warnings placed on the site and circulated in the company prohibiting advertisements for illegal conduct” and “all sorts of evidence about what Backpage did to work with law enforcement to stop child trafficking.”

If the Justice Department did want to claim Backpage was reckless, the memo suggested, it could possibly use Backpage’s ample responses to subpoenas and reports to NCMEC to establish the company knew that minors were sometimes advertised and that this would continue.

This is not a standard we apply to other digital platforms or to other crimes. People are robbed, assaulted, defrauded, extorted, harassed, discriminated against, and much more via digital classified ads, social media, and popular apps of all sorts. These cases wind up yielding criminal cases and suits in civil court, sometimes very serious ones. But few suggest that this means Yelp, Tinder, Twitter, Facebook, etc. should cease entirely.

It also offends on a basic level of fairness. Because Backpage worked so closely with authorities to stop bad actors, it had given the government all the goods it needed to prosecute—even as prosecutors ignored the many sex-ad hubs that weren’t working with authorities.

[youtube https://www.youtube.com/watch?v=DPchvgMsjl8?feature=oembed&w=500&h=281]

“reliance on this type of evidence would be extraordinary in a criminal case”

Since nabbing Backpage on knowingly facilitating illegal sex work would be a stretch, the 2013 memo suggested that the best way to prosecute might be to bring conspiracy and money laundering charges.

This is what the Justice Department did last year. And much in the current theory of prosecution against Lacey, Larkin, and other former Backpage leaders is laid out in the 2013 memo.

Money laundering charges would “not focus on Backpage as a publisher of on-line advertisements or as a co-venturer with pimps, but as a launderer of funds derived from adult prostitution,” the memo said. But, again, the authors ran into “several substantial proof issues” in showing that any promotion, facilitation, or funding from prostitution per se was intentional.

Proving “the company knew that the advertising fees being paid by adult ‘escorts’ were criminally derived property” would be difficult, they noted. So too proving that any particular $10,000 came from prostitution proceeds (as required by some money laundering statutes).

“We would be required to rely on expert testimony, statistical analysis and inferences to prove that,” they wrote. “While relying on such evidence in a civil case may be common, reliance on this type of evidence would be extraordinary in a criminal case.”

The Justice Department could try for conspiracy to commit money laundering charges, suggest the prosecutors. But again, there’s the intent problem. The state would “be left to argue inferences of a specific criminal intent in the face of evidence that Backpage was engaging in extensive monitoring” to the opposite effect.

The most concrete evidence available of intent to promote adult prostitution were two short statements made by executives. In 2011, board member Don Bennett Moon allegedly said he could not “deny the undeniable” when pressed whether the site was sometimes used to promote prostitution.

That same year, during a meeting between Backpage leadership and NCMEC, Ernie Allen was—by his own account—pressing Backpage to get rid of all “Adult” ads when Michael Lacey said that adult prostitution was none NCMEC’s business. According to the memo, “Allen responded that ‘at least you know what business you are in,’ to which Lacey did not reply.”

The memos suggested that these statements might work for proving intent but were not much to go on. Doing so would raise “substantial issues” of concern and amount to relying on “inferences drawn from obtuse statements and silences to prove an element of the offense.”

Nonetheless, these statements would find their way into the Senate investigation of Backpage and the current criminal indictment. This is the sort of iffy evidence that everyone decided to run with.

 

Politics Over Protection

The memos and the investigation that produced them should have tamped down enthusiasm for the crusade against Backpage. By almost all accounts, the most productive relationship between Backpage and those in power was a symbiotic one, in which the site served as a partner in preventing and punishing exploitation.

Instead, officials kept pursuing sanctions against Backpage and spreading tales of alleged depravity among its staff.

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 in these 2012 and ’13 memos—in statements not made for political posturing—we see something else entirely.

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.”

Brnovich did not rule last week on defendants’ motion to dismiss the case. For now, the trial is scheduled to start on May 5, 2020.

It’s worth noting that since Backpage was seized by the feds (April 2018), and the federal law against prostitution ads became law (later that month), we’ve seen cops across the country complain that it’s harder to find and prosecute cases involving underage prostitution. Federal “rescue” numbers are also down in recent years, as are the total number of sex trafficking of children prosecutions by the feds.

Some will call this evidence that shutting down Backpage actually did put a dent in trafficking. But research on the online ad market says that after initial an initial drop last spring, adult ads levels have rebounded. And since the vast majority of these platforms employ no more stringent age-verification tools than Backpage did, whatever amount of ads for minors got through on Backpage is also likely getting through now.

Cops can still peruse these sites, as they did with Backpage. But the adult ad market is now more decentralized and thus harder to monitor, and has also undergone some switching to encrypted or just less visible platforms (or, alternately, moved to mainstream platforms like Instagram but with more tame public posts). More importantly, many of these other sites don’t proactively report, provide data, and work with law enforcement like Backpage did.

With Backpage.com’s shutdown, “we have taken a major step toward keeping women and children across America safe,” Jeff Sessions claimed when the site was seized.

Reading these memos, it seems clear the government put the political usefulness of a crusade against a caricatured evil tech company above the genuine safety of American women and children. Soundbite salvation came at the cost of actually fighting endangerment, exploitation, and abuse.

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Backpage DOJ 2012 Memo (PDF)

Backpage DOJ 2012 Memo (Text)

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Backpage DOJ 2013 Memo (PDF)

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