With Backpage.com Prosecution, Left Ties Online Free Speech to Transgender Prostitutes’ Rights

Michael Lacey and James Larkin, Backpage
Cliff Owen/AP

President Trump signed the FOSTA-SESTA anti-sex trafficking bill last Thursday, the same day Backpage.com CEO Carl Ferrer pleaded guilty to a conspiracy charge related to the shutdown of what Attorney General Jeff Sessions called “the dominant marketplace for illicit commercial sex.”

Internet activists of both leftist and libertarian orientation quickly connected the two events, despite the fact the shutdown preceded the passage by Congress of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA or SESTA after an earlier version of the bill).

“Backpage was shut down soon after the passage of FOSTA, a bill passed last month that will make websites more liable for what users do and say on their platforms. Advocates for FOSTA held up Backpage as the poster-villain for why they claimed we need stronger anti-trafficking protection,” the left-wing Motherboard, tech division of Vice News, writes.

President Donald Trump however, had yet to sign FOSTA when the indictment against Backpage.com came down and none of its provisions were actually in effect. No part of the law, which loosens CDA 230’s protections against lawsuits in cases of sex-trafficking was needed for the Backpage.com indictment.

“FOSTA-SESTA legislation has not yet been signed into law so could not be used for the recent take-down of Backpage.com. The take-down was a function of federal criminal law already on the books,” Rick Lane, a technology policy expert who was involved in the original debate surrounding the passage of CDA 230,” told Breitbart News.

Lane saw FOSTA as seperate to the Backpage.com take-down, explaining:

The FOSTA-SESTA legislation was never just about Backpage.com or giving federal law enforcement more legal tools. The focus of the legislation was about amending Section 230 of the Communications Decency Act to give local and state law enforcement and human trafficking survivors the legal tools to go after websites that are knowingly facilitating human trafficking. Once FOSTA-SESTA is signed by the President both the feds and states will have the power to help make the Internet a safe, secure and sustainable Internet for all.

Despite this, some internet businesses see the bill as deeply troubling. Most notably, Craigslist justified its decision to shut their own personal ads entirely over fears of new liability from FOSTA.

The left-leaning internet freedom think tank Electronic Frontier Foundation characterizes FOSTA as “censorship,” a view shared by many of the bill’s opponents. Lane pushed back on the notion of censorship and the idea that the Backpage.com take-down would chill free speech online, telling Breitbart News, “There is no difference between Internet free speech and free speech. The DOJ effort was about taking down a criminal enterprise. Criminal activity is not protected free speech online or offline.”

Some of the opposition to Backpage.com’s shutdown emanated from corners concerned with “sex workers” rights, including those who advocate the legalization of prostitution. A Tuesday report in the left-leaning Daily Beast, for example, explicitly linked FOSTA-Sesta and Backpage’s demise, arguing both are particularly detrimental to “transgenders.” The Beast quotes one transgender activist describing the situation as “like the great depression for transwomen of color” because of this demographic’s purported reliance on prostituting themselves. “We’re already being hunted all over the world. Trans women are dying at alarming rates. And you really created SESTA and FOSTA? I can’t even think what’s going to happen because of this,” said another.

“[I]t’s really an anti-sex sledgehammer,” Engadget columnist Violet Blue writes, calling FOSTA, “the worst possible legislation curtailing free speech online.”

Blue continues:

Sex workers are right to be scared. They’re facing all this sudden and casually disastrous censorship as a threat to their safety and livelihoods, and are well aware that few are willing or brave enough to fight for their free speech and human rights. Even sex writers such as myself know this; any of us who’ve tried to make a living off anything relating to sex online has a list of products, services, banks and payment processors, social networks, companies, and business tools that everyone else takes for granted — that we are expressly prohibited from using.

Motherboard spoke to a prostitute who expressed similar views:

Canada-based sex worker @asbinvancity told me in Twitter direct messages that this bill is already impacting her work, even though she’s living and working outside the US. Before Backpage’s seizure, she was able to screen clients using it. Now, people ask her for services she doesn’t provide, people with blocked phone numbers call her, and would-be clients try to reach her through various apps.

One man who disagrees is Attorney General Sessions. “For far too long, Backpage.com existed as the dominant marketplace for illicit commercial sex, a place where sex traffickers frequently advertised children and adults alike,” he said. “But this illegality stops right now.”

Another is FBI Director Chris Wray, who in his statement separated the alleged crimes from their internet locations entirely. “Whether on the street or on the Internet, sex trafficking will not be tolerated. Together with our law enforcement partners, the FBI will continue to vigorously combat this activity and protect those who are victimized.”

The Ferrer plea followed the unsealing of the Justice Department’s indictment against seven other owners, executives, and managers of Backpage.com last week, providing the reasoning behind the shutdown.

The 61-page, 93-count indictment was issued under seal in the U.S. District Court for the District of Arizona on March 28. The seven are slapped with federal charges of conspiracy, facilitating prostitution (under something called the Travel Act that allows certain typically-local offenses to be charged federally when they occur across state lines), and money laundering in the document that also seizes a long list of bank accounts, websites, and properties through forfeiture.

The homes of two of the defendants, Backpage.com co-founders Michael Lacey and Jim Larkin, were then raided by federal authorities over the weekend. Also charged in the take-down are the company’s Executive Vice President Scott Spear, CFO John E. “Jed” Brunst, Sales and Marketing Director Daniel Hyer, and operations managers Andrew Padilla and Jaala Joye Vaught.

The indictment lays out a years-long story of the website’s leadership, ignoring the rampant use of their site to advertise prostitutes’ services, including, in some cases, underage girls and so-called “sex-trafficking” victims.

The executives are alleged to have gone even further, deliberately formulating policies to facilitate and not discourage pimps and prostitutes use of their service. Examples include employing automatic and manual methods to strip the most explicit pictures and words from ads – including words that implied the prostitutes in the ads were underage – and then posting the edited ads anyway.

The money laundering charges stem from alleged actions taken by the executives to “offshore” the profits – which eventually topped $100 million a year, most of it allegedly from prostitution ads – and a deal by which Lacey and Larkin are alleged to have sold their holdings in the company to a Dutch firm that was only a shell designed to shield them from scrutiny while they continued to profit.

Much of the indictment is based on internal company documents that came to light from a U.S. Senate investigation into the site last year. State Attorneys General had been trying to discover internal documents like these in years of investigations that were hampered in part by restrictions on states’ power imposed by Section 230 of the Communications Decency Act (CDA 230). No such restrictions applied to the federal government and the U.S. Senate, hence FOSTA-SESTA would have had no effect on the prosecution even if it had been in place.

Some voices, however, continue to look to the Backpage.com saga as a means to link the broader issue of internet censorship to the fight over prostitution legalization and “transgender” welfare.

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