Federal Backpage Indictment Shows SESTA Unnecessary, Contains Zero Sex Trafficking Charges

Last Friday, the DOJ somehow managed to seize Backpage's websites, despite SESTA/FOSTA still lying on the president's desk waiting for a signature. The anti-Section 230 law, d/b/a an anti-sex trafficking statute, was declared a necessity by supporters -- the only thing able to pierce service provider immunity and somehow bring sex traffickers to justice by... [checks notes] arresting or fining tech company executives.

The indictment [PDF] behind the DOJ site seizures has finally been made public. It contains a wealth of details about Backpage's adult ads business and a plethora of charges (93) levelled at seven Backpage principals, including founders Michael Lacey and James Larkin.

What you won't find amongst the charges is anything about sex trafficking. Lacey is charged with 79 felonies, which include money laundering (which occurred after credit card companies were pressured into refusing to process Backpage ad payments), conspiracy, and 50 counts of Travel Act violations. Because Backpage processed adult ads for sex traffickers all over the nation, prosecutors are able to bring federal charges for state-level "facilitating prostitution" violations against Backpage execs under the theory these electronic transactions "crossed" state lines.

So, for all the handwringing about sex trafficking and "untouchable" tech execs, the DOJ has nailed a handful of execs and foregone any concerns about their apparent role in sex trafficking. What the indictment shows is Backpage allegedly facilitated a whole lot of consensual sex between paying customers and sex workers. The indictment also inadvertently shows how Backpage made things safer for sex workers.

In one internal email, LACEY actually bragged about the company's contributions to the prostitution industry: "Backpage is part of the solution. Eliminating adult advertising will in no way eliminate or even reduce the incidence of prostitution in this country" For the very first time, the oldest profession in the world has transparency, record keeping and safeguards."

To the government, this is a bad thing. To sex workers, it was a way to pre-screen customers and reduce their own risks. The government really doesn't care if sex workers are beaten, raped, or killed. It would rather force the oldest profession as far underground as possible and presumably let attrition cull the supply side. Meanwhile, it will busy itself with arresting the demand side, because that's the easiest way for it to rack up convictions. It quotes an affidavit from a Boston PD detective stating that "since 2010," the PD had arrested "over 100 buyers of sex of both adults and minors through Backpage.com ads." And this stops sex trafficking how? There's no mention of pimps being arrested despite the same detective making the sworn statement that "nearly all" cases associated with Backpage "involve pimp-controlled prostitution."

But that's about all the nice things I have to say about Backpage. The indictment contains details from internal documents showing ad moderators routinely stripped references to underage sex from ads so they could still allow the ads to run and presumably reach customers. They also show Backpage never implemented recommendations from NCMEC (National Center for Missing and Exploited Children) and researchers to better police ads for possible abuse of minors. The communications obtained by the government also show Backpage withheld info from NCMEC to keep its referrals to less than 500 a month. So, while it was referring plenty of stuff to the child exploitation clearinghouse, it was also holding stuff back so as not to appear to be a clearinghouse for child exploitation.

As for the efforts it made to strip ads of terms and pictures that might have given away the illegal nature of the acts being advertised, I'm less appalled. To be sure, this sort of facilitation is illegal. But the moderation efforts, in some cases, prevented illegal ads from being posted and only allowed those through that eliminated indications sex was being exchanged for money. The ads were likely legal post-moderation, but the acts being slyly advertised, not so much.

The bottom line appears to have been the main consideration -- not adherence to multiple statutes in the multiple states Backpage served customers. That leads to another fact routinely trumpeted by politicians and prosecutors: that the vast majority of Backpage's income came from "illegal" sex-for-sale ads. It's a fact but it's somewhat misleading. Sex ads were the only base service Backpage charged for. It was always going to make the most money from these ad sales. It's not because they were so much more profitable on their own. There's just nothing else to compare it to. Something that costs something is always going to generate more income than stuff given away for free.

On top of that, this ad section -- where Backpage made money -- was already killed by Backpage voluntarily. People selling and buying sex didn't just vanish, though. It migrated to other sections of the site, just like it did when Craigslist killed their adult services section off years ago. The market didn't disappear. It just became a little bit tougher to locate.

Whether you believe Backpage execs are scapegoats or pariahs, one thing is certain: legislators didn't need to tamper with Section 230 protections to make this happen. Plenty of existing statutes were available for prosecutors to wield against the website and its founders. And for all the talk of sex trafficking over the weekend, there's not a single charge related to sex trafficking in the long list being presented to a federal judge.