Backpage Kills Adult Ads On The Same Day Supreme Court Backed Its Legal Protections, Due To Grandstanding Senators

from the someone-teach-the-senate-the-law? dept

Tue, Jan 10th 2017 6:22am — Mike Masnick

A few years back, we detailed how ongoing grandstanding and toothless legal threats finally forced Craigslist to shut down its "adult services" section. None of that did anything to stop prostitution or human trafficking online. It just moved to other sites -- which was particularly ridiculous, given that Craigslist had been proactive in working with law enforcement to help them track down the actual perpetrators of crimes via the site. And, the illegal behavior just moved on to somewhere else -- as did the ridiculous grandstanding. The main target since Craigslist shut down its services: Backpage.com, the Craigslist-alike site that spun off from Village Voice Media. And now, after an even more intense grandstanding and legal campaign, Backpage has also been pressured to shut down its adult section. If you go to it now, you'll see this instead:

And here's the craziest part. This happened on the same day the Supreme Court basically said Backpage is legal and the legal claims against it are bogus. But the law is apparently meaningless in the face of a pair of grandstanding Senators who want their names in the headlines, pretending they care about human trafficking, while actually making the problems worse.

Last May, we wrote about an excellent 1st Circuit appeals court victory for Backpage.com, which (like nearly every other court before them) found that the site was clearly protected by Section 230 of the Communications Decency Act. As we've discussed many, many times, there are a number of people out there who would like to ignore the fact that while some users of Backpage may be violating the law to engage in prostitution, the proper response is to go after those actually breaking the law, and not the platform they're using. That's the very heart of Section 230, and it's exactly what many, many courts have realized. The case we wrote about last May (and also wrote about when Backpage prevailed at the district court level the previous May) involved three clear victims: women who were forced into selling sex as teenage runaways. Their situation is undoubtedly awful -- but it was the fault of those who exploited and abused them, and not the online service they happened to use.

On Monday, the Supreme Court effectively put its stamp of approval on the 1st Circuit appeals court ruling by denying the plaintiff's petition to hear an appeal on that ruling. While it's not quite the same as saying that the Supreme Court fully endorsed the opinion of the 1st Circuit saying that Section 230 clearly protects Backpage from being blamed for how people use the site, it certainly suggests that the court didn't see any major problems with the ruling.

But... there's just something about Backpage that makes politicians want to stupidly and misleadingly grandstand. Just hours after the Supreme Court effectively blessed the 1st Circuit ruling saying Backpage hadn't broken the law, Senator Claire McCaskill released a report (with Senator Rob Portman) that blasts Backpage for "knowing facilitation of online sex trafficking." This is in advance of a grandstanding Senate hearing that McCaskill/Portman have prepared to parade out the executives of Backpage to yell at them for facilitating sex trafficking, even just as the Supreme Court has basically said this entire line of argument is completely bogus.

The report is a joke. The crux of the report is that, via subpoena, the Senate staffers were able to determine that Backpage edits and or bans certain words that indicate an ad is for prostitution. Let me repeat that: the Senate is mainly annoyed that Backpage proactively looks for and blocks situations where it appears that the ads may be for prostitution -- especially involving children. Yet, the Senate investigators twist this to make it sound like a bad thing.

Over time, Backpage reprogrammed its electronic filters to reject an ad in its entirety if it contained certain egregious words suggestive of sex trafficking. But the company implemented this change by coaching its customers on how to post “clean” ads for illegal transactions. When a user attempted to post an ad with a forbidden word, the user would receive an error message identifying the problematic word choice to “help” the user, as Ferrer put it. For example, in 2012, a user advertising sex with a “teen” would get the error message: “Sorry, ‘teen’ is a banned term.” Through simply redrafting the ad, the user would be permitted to post a sanitized version.

I'm not entirely clear what they're complaining about here. You could also quite clearly see this as Backpage letting users know that it is not a place that should be used for sex trafficking, because it clearly alerts them to things that they don't want on the site. But the Senate staffers seem to have intentionally spun this to appear in the absolute worst light.

On top of that, Section 230 is again quite clear that any effort a platform does take to moderate stuff doesn't change the fact that a site is protected from liability. And that's to encourage exactly the type of behavior that Backpage is already doing: which is choosing voluntarily to block certain types of ads that they don't want. Now, I'm sure some will argue, as the Senate report tries to say, that because Backpage then allows another ad without the "banned" words through, that it's not stopping the underlying activity, but that's basically mandating that any online platform have incredibly adaptive and complex filters to make sure that anyone who tries to get around their filters cannot do so. That's a very dangerous precedent, and would basically make it impossible for any online service to exist, without being massive.

The report argues that the "editing" of posts by Backpage takes away 230 immunity:

Backpage and its officers have successfully invoked Section 230 in at least two other cases to avoid criminal or civil responsibility for activities on the site. In neither case, however, did the court have before it evidence that Backpage had moved beyond passive publication of third-party content to editing content to conceal illegality.

The argument here rests on the ruling in the infamous Roommates.com case from nearly a decade ago -- which remains the biggest case where a Section 230 defense failed. But that's a very different situation. Roommates.com failed because the Roommates system itself was asking questions deemed to be illegal under housing law (about racial preferences and such). That was part of the site that was fully created and controlled by Roommates.com. The difference here is that while Backpage may be running some of its posts through a filter, that's to moderate the content to remove descriptions of illegal sex trafficking or illegal prostitution. In other words, what Backpage is doing is actually moderating content, which is explicitly allowed and encouraged by the "Good Samirtan clause" of CDA 230, found in section (c). That part of the law says that the immunity applies even for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." It seems quite clear that Backpage editing posts to remove such content falls squarely into that bucket.

The report is also strange in that it uses Backpage's own helpfulness to law enforcement against it. It highlights how law enforcement regularly gets reports and details of child trafficking because of Backpage:

According to the latest report from NCMEC, 73% of the suspected child trafficking reports it receives from the public involve Backpage. According to the Massachusetts Attorney General, “[t]he vast majority of prosecutions for sex trafficking now involve online advertising, and most of those advertisements appear on Backpage."

In other words, one of the best tools out there for finding and stopping sex trafficking is... Backpage.com. And the Senators response is to blame Backpage and make them legally liable? How does that make any sense at all? Now that Backpage has shut down those ads, they'll scatter elsewhere. Sex trafficking won't stop and it will be harder for law enforcement to track down and find actual perpetrators or save actual victims. Let's be clear: Senators McCaskill and Portman, in an effort to get their names in the headlines, have just made sex trafficking easier, by making law enforcement's job harder.

The report also makes a big deal out of the fact that Backpage's execs know that the site is used for trafficking and prostitution, but, again, so what? That's like the same claims that the legacy entertainment industry made about YouTube. Just because you know that a site can and sometimes is used for illegal behavior does not automatically make the site liable for that illegal activity. That's quite clear under Section 230, yet totally ignored by this report.

The Supreme Court got this right... while Senators Claire McCaskill and Rob Portman appear to be yet another set of politicians who are grandstanding by blaming a platform, rather than doing anything that will actually help stop sex trafficking. And the end result is that Backpage has shuttered that section. This won't stop or even diminish sex trafficking and prostitution online. Just as it moved from Craigslist to Backpage, it will continue to move elsewhere -- and that will probably be to a site that is even less willing to work with law enforcement to help track down and stop real illegal behavior. Similarly, this witchhunt has taught any new platform that any attempt to diminish the blatant use for sex trafficking and prostitution will be twisted to pretend that it's just trying to "hide" that activity.

This is a travesty. McCaskill and Portman will get their headlines, and sex trafficking will continue -- it will just be harder to help actual victims.

2017 01 10 Backpage Report (PDF)2017 01 10 Backpage Report (Text)

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Filed Under: cda 230, claire mccaskill, grandstanding, rob portman, section 230, sex trafficking, supreme court
Companies: backpage

49 Comments

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Anonymous Coward, 10 Jan 2017 @ 6:36am

Why don't both McCaskill and Portman walk over to Backpage and remove those offensive ads themselves, seems there are several congress critterz that now feel they are authorized to do whatever they please.
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TheResidentSkeptic (profile), 10 Jan 2017 @ 6:37am

A cynic might say..
... that since everything the government attempts to regulate gets worse, I'm fine with them regulating my morals...
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Anonymous Coward, 10 Jan 2017 @ 6:42am

Re: A cynic might say..
you mean...

I am fine with them regulating everyone ELSES morals... just not mine?

I know that is not what you were trying to say, but I though it was a good segue to what is really going on. People never think about that fact that their calls for regulation usually give them exactly what they are working to avoid.
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Anonymous Coward, 10 Jan 2017 @ 6:52am

So now the question is what do the senators or more likely their supporters have to hide. I doubt that they are just busybodies that think that sweeping it under a rug makes the problem go away. It just makes it a little harder to find the stupid criminals, is this another anticompetitive measure that will improve profits of sex traffickers?
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Anonymous Coward, 10 Jan 2017 @ 6:52am

I'm sure that all those poor sex-trafficking victims will be glad they won't be found by any law enforcement team that was alerted by Backpage...now they can be abused through other channels.
Thank you US Senators McCaskill and Portman.
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Anonymous Coward, 10 Jan 2017 @ 7:10am

I think Backpage did the right thing here by making clear and drawing attention to the fact that this was an unconstitutional censorship. I also think that more sites should follow suit to these types of abuse and put a big spotlight on government overreach and dismissal of the Constitution (democrats, republicans, liberals, conservatives, independents, whoever is in power).
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Berenerd (profile), 10 Jan 2017 @ 7:23am

Like any other service or good that is regulated, the cost will just be pushed to the consumer...

On a serious note, I am waiting for them to take down all the Brothel websites, escort websites, etc as they are promoting the same damned thing. Oh wait, Politicians use THOSE services so those are ok.
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Anonymous Coward, 10 Jan 2017 @ 7:33am

So, in other words, backpage turned the issue into a money making opportunity - much like you would have done given the chance.
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Anonymous Coward, 10 Jan 2017 @ 7:37am

I'll just leave this here for the Senators
Backpage alternatives
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Anonymous Coward, 10 Jan 2017 @ 7:38am

Look, the *only* reason adult ads are stymied on backpage is because of backpage. Nothing is forcing their hand, no law, no statute, no nothing. They pulled it, and they can put it back - period.
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nony, 10 Jan 2017 @ 7:54am

Re:
Yep, the power of the senate to subpoena, or attorney generals to put people in jail and take them to court for isn't a law or a statute prevention backpage executives from getting on with thier lives.
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Anonymous Coward, 10 Jan 2017 @ 7:57am

&"...Backpage's execs know that the site is used for trafficking and prostitution, but, again, so what?"*

Gun manufacturers know that their products are used to murder countless thousands of individuals, but they're not held liable for those deaths.

We don't do secondary liability in the U.S., and Section 230 of the CDA simply codifies this ideal into the main law governing the internet.
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Spaceman Spiff (profile), 10 Jan 2017 @ 8:17am

Just shoot them!
First, we take all the politicians out and shoot them. That will take care of most of the lawyers. Then we take the rest of the lawyers out and shoot them. OMG! Peace at last!
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Spaceman Spiff (profile), 10 Jan 2017 @ 8:20am

Re: Just shoot them!
And FWIW, this would also eliminate some of my favorite cousins and nephews...
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Anonymous Coward, 10 Jan 2017 @ 8:20am

When you are spending the tax payers money, it is easy to use the courts to bully someone into submission, as sooner or latter the target decides that their money is being wasted as as fast as they win one case another is brought against them. All it takes is for some politicians to agree that you are a target.
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Anonymous Coward, 10 Jan 2017 @ 8:21am

Re:
Yeah, it has nothing to do with being directly and repeatedly threatened by grandstanding senators and AGs.
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Ninja (profile), 10 Jan 2017 @ 8:29am

I think Backpage is actually calling attention to the censorship problem and maybe it won't really close the adult ads section. Still, if this is permanent I wouldn't blame them. Along with constant attacks against the site itself the owners are being 'legally harassed' by lawsuit after lawsuit against them individually. If this isn't abusing the law just because you don't agree with a perfect legal situation then I don't know what it is. They should be receiving a hefty amount of money for all the bullying they've been through.

And again an issue that should be dealt with by recognizing there is demand and providing legal backup for those who want to engage in it (sex workers and their clients) is instead being pushed further into the shadows facilitating the parts that are really problematic (sex trafficking). Because it worked with drugs. Horray?
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dcfusor (profile), 10 Jan 2017 @ 8:30am

Lazy LEOs
Seems law enforcement wants all manner of things that make their own jobs redundant.
Shut down a site that promotes this or that lawbreaking, and we can then pretend it's not happening.
Let's have backdoored encryption so we don't miss anything.
Let's fix it so some computer can do our jobs and we don't need brains or shoe leather. And hey, if no one knows about c rime, they'll stop doing any, right? (oops, who defines what constitutes crime?).

Seems very short sighted. If they got what they wanted, they'd all be out of jobs, and a lot of pensions wouldn't have to be paid...
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Ninja (profile), 10 Jan 2017 @ 8:31am

Re:
So, in other words, backpage turned the NON-issue into a money making opportunity - much like you would have done given the chance.

Fixed.

Then people who think the world should fit their narrow, petty view of it decided to bully the service out of existence.
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Anonymous Coward, 10 Jan 2017 @ 9:26am

Re:
Or the president to name you...
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art guerrilla (profile), 10 Jan 2017 @ 9:34am

this is great...
...with every boneheaded, counterproductive move, the gummint makes the Dark web that much more attractive and widely used...
pretty soon, won't have to worry about anyone doing 'bad' shit on the intertubes, cause everyone will be on the Dark web...
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Anonymous Coward, 10 Jan 2017 @ 10:03am

Still Waiting
I'm still waiting for the police to arrest city council for providing streets and sidewalks where the hookers and johns like to hang out.

I keep telling them, if we just get rid of the streets and sidewalks all the hookers will be put out of business but they think I am bloddy mad and threatened to lock me up for harassment.
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Anonymous Coward, 10 Jan 2017 @ 10:08am

Re: this is great...
Wrong, this is how you enable pimps and human traffickers, keep the problem out of the view of most of the public. Also, when applied to politics, it winnows out the moderates, and leaves the extremist plotting in private to take over a country.
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Kal Zekdor (profile), 10 Jan 2017 @ 10:38am

Re: Re: this is great...
...Isn't that what he just said?
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Anonymous Coward, 10 Jan 2017 @ 10:49am

We know the truth...
According to the latest report from NCMEC, 73% of the suspected child trafficking reports it receives from the public involve Backpage listings involving senators and congressmen. According to the Massachusetts Attorney General, “[t]he vast majority of prosecutions for sex trafficking now involve online advertising and politicians, and most of those advertisements appear on Backpage."

One politician was quoted on conditions of anonymity, "It's gotten so difficult to find good "pages" to help out in the "office" with the crackdown on these ads. All the good sources of underage (I mean young) bodies have disappeared, you can't even place a "helping father" ad and get a decent response these days. If Backpage shuts down we may have to go back to the Catholic priests to find the appropriate "staff" for our offices."
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beltorak (profile), 10 Jan 2017 @ 11:00am

Re:

I doubt that they are just busybodies that think that sweeping it under a rug makes the problem go away.

You're right, it won't make the problem go away; but you are wrong in thinking that they don't know that. Actually, they don't care, so whether they know it or not is irrelevant. As long as they don't have to look at it. As long as it doesn't inconvenience them. Zero Shits Given. Because then it's "Not My Problem"; their precious little consciences can stay nice and cozy, untroubled by any reminders that they are not doing enough to help others.

Wait, I guess I got that wrong. It does make the problem go away. Provided you realize the problem is "being reminded of this makes me uncomfortable".
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orbitalinsertion (profile), 10 Jan 2017 @ 11:15am

In any other cases, they would keep quiet, find suspicious ads on these sites, take reports, and conduct investigations. Prosecutors and LEOs would decline to say how they originally discovered suspects because it would harmfully reveal investigative techniques.

But theater is more important, and there is more theater on the front end here.
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Ryunosuke (profile), 10 Jan 2017 @ 11:23am

Re: Re: A cynic might say..
that's why i keep saying that (generally) govt shouldn't legislate on moral grounds, rather than public safety and health grounds. The exception is equality, people should be treated the same regardless of who they are.

once you start legislating morals, you will eventually start endorsing a religion, and that's pretty clear here in the US.
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Anonymous Coward, 10 Jan 2017 @ 11:32am

Re: A cynic might say..
Didn't they clean up lake Erie many years ago?
I doubt that was accomplished via happy feelings and good intentions. So, at least once?
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Anonymous Coward, 10 Jan 2017 @ 11:38am

Re:
When it comes to pollution, the consumer pays no matter what. If paying upfront, you pay the manufacturer for the cleanup of the pollution caused by making the product you just bought. If paying after the fact, you pay the subcontractor hired by the government to clean up the pollution caused by making the products someone else bought last century.

Either way - you lose.
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Anonymous Coward, 10 Jan 2017 @ 1:17pm

Re:

Gun manufacturers know that their products are used to murder countless thousands of individuals, but they're not held liable for those deaths.

That's because murder is more acceptable than s-e-x.
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That Anonymous Coward (profile), 10 Jan 2017 @ 1:20pm

Won't someone think of the children?
While these Congresspeople are busy talking about protecting children they have actually endangered them more to get media coverage.

Pity that no media has the courage to report the truth that their witchhunt is a waste of money & resources that does nothing but allow them to grandstand.
Runaways will still be pimped, and now there is a lower chance of them being located & helped.
How many children need to be forced into prostitution so that these Congresspeople can call it mission accomplished?
Media fawning more important than actual reporting.

Maybe the next trafficked kids who want to sue someone for being responsible they can name these 2 idiot Congresspeople who made rescuing them harder.
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Rekrul, 10 Jan 2017 @ 5:01pm

You know, if I ran one of these companies, I'd call a press conference and it would go something like this;

"Our service accepted legal adult ads. Some people used our service to post illegal ads, sometimes involving children. In such cases, we worked with the police to catch the people responsible for exploiting the innocent. In total, we helped law enforcement catch xx sexual predators. Sadly we will no longer be able to do that because our senators feel that merely removing ads from our service will somehow solve the problem. Our hearts go out to all the children who are being sold for sex through online ads, but there is no longer anything we can do to help stop it."
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Eldakka (profile), 10 Jan 2017 @ 5:56pm

Re: Re:
Any threats which were followed through with (e.g. taking it to court) have been defeated.

Backpage is giving in to threats that have no legal basis behind them. It's enabling these people to do the same thing to others. They are giving in blackmail.
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Eldakka (profile), 10 Jan 2017 @ 5:59pm

Re: Lazy LEOs

Seems law enforcement wants all manner of things that make their own jobs redundant.

That's because they want more time to be para-military anti-terroist organisations, rather than law-enforcement organisations.
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Eldakka (profile), 10 Jan 2017 @ 6:04pm

Re: I'll just leave this here for the Senators
One of the search results:

Top 6 websites that are similar to Backpage - Clapway

How appropriate ;)
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R.H. (profile), 10 Jan 2017 @ 9:47pm

Re: Re: Re:
That's the problem when government officials use their positions to blackmail you, it's very effective. These executives have had to fight expensive legal battles every time an Attorney General decides to take them to court for this issue.

Now, they're being subpoenaed by the Senate (coincidentally, one of the AG's who filed suit against them last year is now a US Senator). This adds further cost to them and their business. Maybe after they testify they'll open this section back up since their side of the issue will be on the Senatorial record and with this Supreme Court decision behind them, they certainly have the law on their side already.
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Celeste Guanini, 10 Jan 2017 @ 10:53pm

Re: Am I the only one fighting abuse of conflation?
These moral crusaders are elected with the funding of international banksters who are the exact same group of people that create and run the sex trafficking in the first place. And all of their NGO's derive massive funding fro these same banksters, and he 'billions of profits' derive from this alleged industry are that salaries of these poverty pimps and child exploiters.

Is anyone else tired of the conflation? This is the last 30 years entire progressive politic. It's how they on one hand claim moral high ground by 'fighting sexploitation' and on the other, these same democrat bandits run the social services, and Child Protection rackets that kidnap some 400,000 kids out of homes in the US, where the kids are then most likely to be sexually targeted and then victimized at rates of 70%. And that, by others who work in state and local government from teachers to cops to firemen and so on.

Just Google "Jasmine Abuslin" who is the rule, not the exception in these "child exploitation" case: http://rollingout.com/2016/09/18/teen-prostitute-sues-says-oakland-police-officers-were-her-biggest- clients/

The conflation of "human trafficking" and "sex trafficking" and all of the secret deals done on family court is the exact slippery slope that has stolen our constitution, one secret court, secret law, secret LEO practice at a time because "it's for the children." Anyone who uses that phrase is themselves an exploiter of children.
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Celeste Guanini, 10 Jan 2017 @ 11:01pm

Re: Won't someone think of the children?
These are the same people who run the other sex and child exploitation rackets that are worth billions of dollars: the social workers, Child protection, cops, judges, etc who all are involved in 'childrens programs' and the schools, an foster care programs and so on, where kids stand an increase of 70% more likelihood that they will be sexually assaulted or abused.

And just the foster care racket itself is worth 3.7 billion per year paid out to these poverty pimps.

And guess who the kids are having sex with? The judges, the doctors the lawyers, the cops-and foster moms and dads, of course...Google Jasmne Abuslin, who is the rule, not the exception:

http://rollingout.com/2016/09/18/teen-prostitute-sues-says-oakland-police-officers-were-her-biggest- clients/
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Anonymous Coward, 11 Jan 2017 @ 4:59am

Re: Re: Am I the only one fighting abuse of conflation?
So, all bankers are pedos .. got it.
Does that mean that all pedos are bankers?

Oh wait ... you claim only liberals are pedos ... ok

Hold on .. now it includes police, fire - all government are pedos now - hmmmm - no mention of any churches?

I'm recalling several high profile cases in which they caught a real pedo. Where did they work again? I do not think any of them were bankers, police, or fire - go figure.
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A Point, 11 Jan 2017 @ 5:36am

Just a small point:

SCOTUS deciding not to take a case doesn't confer or imply any judgement by them, nor does it mean they agree with the ruling as it stands. Rather, it points out only that there is a lack of a contrarian ruling or a split between various courts that needs resolution.

There are many, many cases that are potential SCOTUS cases, but they decline most of them every time out. Declining a case isn't any commentary on the case itself.
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dude guy, 11 Jan 2017 @ 10:40pm

damn it
This makes it basically impossible to get free sex off of craigslist for the next few weeks.
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Anonymous Coward, 14 Jan 2017 @ 6:50am

Re: Re: Am I the only one fighting abuse of conflation?

these same democrat bandits run the social services, and Child Protection rackets that kidnap some 400,000 kids out of homes in the US, where the kids are then most likely to be sexually targeted and then victimized at rates of 70%.

Oh, that must be where the democrats get the kiddie sex slaves for back rooms of their pizza parlors, huh?

You don't have any guns, do you?
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Anonymous Coward, 27 Jan 2017 @ 11:22pm

People yust worry about evil, what is taking over the world ,specially in europe.prostitutes are far away from evil, the opposite in fact they are unselfish givers , entertainers and healers and have the power , to give and receive love,like most people dont.people marry for wrong reasons, to be taken care of , not to work , and getting divorce , with a big settlement. Is the goverment taking care of all the unemployed sexworkers now , freespirited people !?
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Site similar to backpage, 15 May 2018 @ 9:33pm

bedpage.com
Site similar to backpage

https://www.bedpage.com/

bedpage.com is site similar to backpage. this is the free ad posting classified site. It is the best Alternative to backpage. people started seaching for sites like backpage and bedpage is overcoming the problems of backpage and people started loving this site for posting their classified ads
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cocoyeung (profile), 24 May 2018 @ 11:48pm

https://www.adlist24.com/ Site similar to backpage too,AD List 24 provides local classified ads for events, jobs, rentals, real estate, buy and sell,or others
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Bedpage Reviewer, 1 Sep 2018 @ 7:08pm

Bedpage is awful (IMO)
I've tested and tried a ton of these so-called alternative Backpage sites and I can say that 99.9% of them are all awful. The worst by far is Bedpage. My review says it all:

https://www.sexdatingapps.com/bedpage-review/

Feel free to leave a comment and let me know what you think. I'm always wanting to hear other opinions.
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