Details Of Charges Against Backpage Execs For 'Pimping' Look Totally Bogus

from the you-can't-do-that dept

Backpage.com has been the target of lots of moralizing, grandstanding law enforcement types, who absolutely hate the fact that there's a classified site out there where some users use it for prostitution (I know that some of the comments will discuss the question of whether or not prostitution should even be a crime, but right now it is, and so this article won't focus on that other discussion). As we've noted time and time again, it's bizarre that law enforcement folks keep blaming the platforms, when those platforms are actually really useful for law enforcement to track down, arrest, prosecute and convict people actually breaking the law. Still, the grandstanding forced Craigslist to completely shut down its adult section, and most of that traffic moved over to Backpage.

And now, the CEO of Backpage, Carl Ferrer, has been arrested in Texas for "pimping," with both Texas Attorney General Ken Paxton and California Attorney General Kamala Harris pushing out grandstanding press releases to talk about how tough on prostitution and pimping they are.

There's just one big problem in all of this: the charges are almost certainly completely bogus, and Harris and Paxton are flat out ignoring federal law on this matter. Specifically, they're ignoring the law we talk about all the time: Section 230 of the Communications Decency Act. As we've noted over and over again, CDA 230 says that internet platforms are not liable for the content created by users. There's an exception for federal criminal acts, but not for states. Various state Attorneys General have been whining about this for years, and demanding Section 230 get a new exception just for them, but that hasn't happened. So Harris and Paxton clearly know about Section 230, and clearly know that they're just ignoring the law. They apparently don't care. They're either too focused on the publicity grandstanding value of pretending like they're "tough on crime," or they're hoping that by presenting emotional stories, they'll win over judges and convince them to ignore Section 230.

Harris is currently running for the US Senate, so the timing of this is particularly interesting. Paxtron isn't up for reelection for another two years, but is currently enmeshed in a securities fraud scandal in Texas, facing criminal charges in Texas and civil charges from the SEC, so perhaps he's looking for something to distract the press from that.

But the simple fact is this arrest is almost certainly bogus. The criminal complaint is really light on details, repeatedly claiming that Ferrer and two other Backpage execs (Michael Lacey and James Larkin) "knew" about specific underage victims being trafficked on the site, but presents no evidence to support that. The much more interesting read is the declaration in support of the arrest warrant for the three men, signed by California special agent Brian Fichtner.

While it does note that there is a "confidential attachment" to this declaration, what's in the declaration itself doesn't come anywhere close to being enough information to get around the protections of Section 230 -- and, in some cases, actively seems to work against the case, even as the declaration seems to think otherwise. I kept waiting for the "smoking gun" in the declaration, but instead, it appears that Backpage not only does go above and beyond what's required by the law, but when contacted by law enforcement was quick to take down specific ads they called out.

The declaration notes that the California DOJ contacted people being advertised on Backpage, and met with some of the individuals, and it always resulted in offers of sex for money. That may be true, but again, Section 230 makes it clear that the criminal act is the prostitution, not the fact that they used Backpage for ads. Then, there's this weird situation where Fichtner talks about creating some ads himself, which seems to really undermine the DOJ's overall argument:

In March 2015, I created two undercover advertisements on the website BACKPAGE. One of the ads was posted in the "Escort" section and offered the service of adult companionship for money, the other ad was for the sale of a sofa and was posted in the "buy, sell, trade" section of BACKPAGE. The minimum fee to post the "Escort" ad was $10.00. Posting the sofa was free of charge. BACKPAGE also offers the ability to upgrade an ad for an additional fee. I upgraded both ads, allowing the ad to be automatically reposted to the top of the page several times during the day. The total cost of the "Escort" ad with the upgrade was $111.20. The total cost of the sofa ad with the' same upgrade was $1.22. Both of the ads were posted using the same undercover cell phone number. DOJ Special Agent (SA) Tera Mackey monitored the undercover cell phone. Within minutes of the "Escort" ad going live, SA Mackey began receiving calls and texts. SA Mackey told me she received hundreds of inquiries for the "Escort" ad, but received only one inquiry for the sofa. SA Mackey said all the calls and texts related to the "Escort" ad were requests for sexual acts in exchange for money.

So? The fact that the escort ads are more popular than the sofa ads isn't exactly news -- nor is the fact that they're more expensive. Basic economics says the more popular ads should cost more, right? But none of this means that Backpage is guilty of anything. Again, so much of the affidavit seems to basically be based on this argument: lots of prostitution happens on Backpage, therefore Backpage is guilty. But that's not what the law says. The law is quite clear that Backpage has to actually be much, much more involved in the prostitution than just providing a platform that prostitutes and pimps use -- even if Backpage knows that some (or even a lot) of its ads are for prostitution.

And then there's the next bit, which seems to totally undermine the case against Backpage and its execs:

After letting the undercover ads run for approximately (ten )10 days, I decided to call BACKPAGE and ask them to remove it. My goal was to learn the process of removing an "Escort" ad from BACKPAGE that law enforcement identifies as an ad for prostitution. My first call was to Liz McDougal, BACKPAGE legal counsel, but I received her voicemail. My next call was to FERRER. When FERRER answered the phone, I identified myself as law enforcement. I told him that I had identified a prostitution ad in the "Escort" section of BACKPAGE (I did not tell FERRER that I posted the ad) and that I was seeking a way to remove the ad. FERRER initially directed me to report the ad by email to abuse@BACKPAGE but then he asked for the name of the ad. I provided him with the Post ID number for the ad. It was apparent that FERRER was looking up the "Escort" ad on his computer because I could hear him typing as I provided him with the Post ID number. He explained that if I report the ad to abuse@BACKPAGE, I should include my phone number in order to confirm that I was law enforcement. He mentioned that they have been "spoofed" by individuals claiming to be law enforcement when they were not.

FERRER told me he located a second ad from the same "user," but it was for a "sofa" and did not appear to be illegal. FERRER said he would personally report the ad and "lock it out." He said it would be removed by the end of the day. A short time later, I searched the website to try and locate the "Escort" ad and the sofa ad, but both ads had been removed. I tried to repost the "Escort" ad, but Backapge.com did not allow it to go through.

Uh, so... how is this evidence of a crime? It seems like the exact opposite. It appears that when directly informed about illegal ads, the company takes them seriously, deletes the ads, closes accounts and blocks reposting of the same ads. That's exactly the kind of thing that CDA 230 is supposed to encourage. By making platforms protected from liability for the actions of their users, the law also says that any efforts at monitoring/filtering/blocking cannot be used to argue for liability on the content that was not blocked. Yet that's exactly what Kamala Harris and Brian Fichtner do here. It's as if they don't know or don't care about the law!

And then Fichtner finds more nefarious filtering that further undermines his case (and, again, which 230 says cannot be used against Backpage):

In May 2015, I created another BACKPAGE "Escort" ad with the goal of trying to post an ad containing sexual verbiage indicative of a prostitution ad. I used the words "cum" and "quickie" in the ad, but when I tried to post it, I received a message that told me those words were "forbidden in this category." I had to change the words to "come" and "quick session" in order for the ad to be accepted.

BACKPAGE may have restricted the use of the sexual verbiage in my undercover ad, but when I conducted a random search of the BACKPAGE escort section, I viewed numerous "Escort" ads that contained photos and videos that depicted full nudity. Many of these nude ads were simulating and/or performing sexual acts. BACKPAGE states they moderate their ads and implement a policy against posting obscene or lewd and lascivious graphics and photographs, however, my personal observations have indicated otherwise.

Again, this is the exact thing that CDA 230(c)(2)(A) is specifically designed to prevent. It says that "No provider or user of an interactive computer service shall be held liable on account of 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." I'm guessing that prosecutors will argue that these efforts are not done in "good faith," but that seems like a really difficult hill to climb.

And, of course, it's not like this is the first time Backpage has gone to court. All the way back in 2011 a court said that Backpage was protected by Section 230. Then in 2015, it won a big case in Massachusetts thanks to Section 230. That case was appealed and the appeals court also gave Backpage a solid 230 win. And then, in a different case, where Cook County Illinois sheriff Thomas Dart strong-armed credit card companies into no longer doing business with Backpage, the 7th Circuit appeals court slammed him for doing so, pointing out that it was a clear 1st Amendment violation, and also citing Section 230.

So far, the only real win against Backpage was an odd ruling from last year in Washington state court, which basically argued that a case shouldn't be dismissed outright, but could proceed in spite of 230.

Bizarrely, this new criminal case against Backpage's execs uses the illegal act by Sheriff Dart to its advantage.

In July 2015, major credit cards stopped processing BACKPAGE transactions and BACKPAGE began to allow users to post Adult ads for free. Nonetheless, BACKPAGE has continued to collect fees for promoted or sponsored ads and created complex payment processing procedures to avoid detection from financial institutions.

Note how the document conveniently leaves out the fact of why they stopped processing, and how that was later found to be unconstitutional? Also, check out the "complex payment processing procedures to avoid detection from financial institutions" line. You know what that was? It was Bitcoin. That's it. After Dart illegally pressured credit cards into no longer working with Backpage, they started allowing people to pay with Bitcoin, because that was basically the only option left to stay in business. To paint that as some sort of nefarious attempt to "avoid detection" is ludicrous.

The declaration also involves interviews with various users of the site, and even then, some of them work against the case, including one underage user of the site who flat out says that it's not Backpage's fault, since they have no idea how old she is:

I asked A.C. if she knew of any policy restrictions for advertising on BACKPAGE. A.C. said she knew there was a restriction about posting adult ads on their website. I asked if she ever encountered a problem posting in the adult section on BACKPAGE as a minor. She said, "Well no, because how are they supposed to know I'm underage?"

And, again, that's the very point of CDA 230. Platforms have no way of knowing such details and any attempt to hold them liable for not knowing what they couldn't actually know would be ridiculous and crippling for basically every internet platform (including our own).

This lawsuit is bad news. It should almost certainly be tossed out, but it appears Harris is more focused on using the publicity to move up a notch to her next job. Her grandstanding press release is basically completely ridiculous:

“Raking in millions of dollars from the trafficking and exploitation of vulnerable victims is outrageous, despicable and illegal,” said Attorney General Harris. “Backpage and its executives purposefully and unlawfully designed Backpage to be the world’s top online brothel. Thank you to the California Department of Justice Special Agents, investigators, attorneys, and our partners in law enforcement who have worked tirelessly to bring the operators of this online brothel to justice and protect thousands of victims of trafficking.”

That's ridiculous. First, they didn't design it that way. The fact is that various State AGs have harassed lots of other sites into shutting down and had all the traffic flow to Backpage. So perhaps she should be arresting herself for promoting Backpage to this position. Also, that history should show that this won't do a damn thing to "protect thousands of victims of trafficking." They'll just move on to the next site.

If Harris really wanted to protect victims of human trafficking she'd go after the people actually doing the trafficking. And you know the best way to find them? Maybe to use Backpage as a tool to track them down. But killing Backpage will just make that harder, allowing traffickers to move on to other venues that may be a lot less willing to cooperate with law enforcement.

I know that there will be some people who will jump in on the comments and argue that because so many ads on Backpage were clearly for prostitution that Backpage must be guilty. But that's not how the law works, and it's not how the law should work. You blame the people actually doing the crime, not the people who made the tools they use. But I guess when Kamala Harris and Ken Paxton want to grandstand, it's easier to go after the internet companies than actual human traffickers.

Filed Under: carl ferrer, cda 230, grandstanding, james larkin, kamala harris, ken paxtron, michael lacey, prostitution, section 230
Companies: backpage

State Attorney General Won't Fight Court's Block Of Law Curtailing Sex Offenders' First Amendment Rights

from the well,-at-least-not-directly dept

A California law requiring registered sex offenders to turn over a wealth of information related to their internet use to police will not go into effect, thanks to both a Ninth Circuit Court decision and the state's attorney general, who has decided not to petition the Supreme Court to examine the ruling.

Attorney General Kamala Harris says she will not ask the Supreme Court to let California enforce a voter-approved law that would require more than 70,000 sex offenders to disclose their Internet identities to police — a decision that apparently means the law will not take effect.

The law was part of Proposition 35, a ballot measure passed by an 81 percent voting majority in November 2012. The challenged provision would require registered sex offenders, who already must disclose their address to police, to also reveal their e-mail addresses, user names and Internet providers.

Other portions of the law, mostly dealing with increased sentences for sex trafficking crimes, will still be enforced. But the law's First Amendment implications -- rights even sex offenders are entitled to -- were too much for the courts to ignore. The law would not only clamp down on those currently serving time, but would also require the same disclosure from offenders who were no longer incarcerated, including those whose probation or parole had been completed.

The requirement “significantly burdens those individuals’ ability and willingness to speak on the Internet,” Judge Jay Bybee, one of the court’s most conservative members, said in the 3-0 ruling.

Of course, the law's sponsors, along with law enforcement, see this decision as turning the internet into a giant sex offender playground.

The measure’s chief sponsor, Chris Kelly, a former chief privacy officer for Facebook, criticized Harris’ decision.

“You cannot promote Internet safety by protecting the anonymity of sex offenders,” Kelly said in a statement. “This is clearly a case of misplaced priorities and indicates a blatant disrespect for California voters.”

Prioritizing dislike over guaranteed rights is "misplacing priorities." No disrespect towards California voters, but it's easy selling an idea that takes rights away from sex offenders. Very few people will vote to protect the rights of these criminals, even if it means statutory rapists, and anyone dragged under the wheels of the justice system by law enforcement's bumbling anti-sexting efforts, are treated identically to those who have committed more abhorrent crimes. The assumption that laws like these make is that the internet is only abused by sex offenders and never simply used in the same ways non-criminals use it.

The courts have upheld sex offenders' First Amendment rights, much as they would for others charged with lesser crimes. While the state AG may not be willing to petition the Supreme Court (which would presumably result in another "no" answer), the state's legislators will be going back to the drawing board to find some way to infringe on sex offenders' First Amendment rights that might escape the notice of the judicial branch.

[T]he attorney general will ask the Legislature to rewrite the disclosure requirement to meet the court’s objections.

Clearly, the state can't take no for an answer, even when it's been told twice that it can't limit the speech of certain people simply because they're universally loathed. Those fighting for these rights have the toughest battle. To guarantee rights for the greater population, they have to fight for those the greater population disdains. If they don't, mission creep is a distinct possibility. Not fighting when its hardest to defend ensures that in the future, it won't just be child molesters and rapists turning over their online identities to the police.

Filed Under: california, chris kelly, kamala harris, passwords, privacy, sex offenders, social media

Scumbag Revenge Porn Site Operator Arrested... But Many Of The Charges Are Very Problematic

from the bad-cases-make-bad-laws dept

A fair amount of attention has been paid to the announcement from Kamala Harris, the attorney general for California, that Kevin Bollaert, the operator of a revenge porn site, and corresponding "pay me to take down the revenge porn" site, has been arrested and charged with a variety of crimes, including extortion. Make no mistake about it: Bollaert is a scumbag and these revenge porn sites -- especially those with the extortionate concept of "pay us to take down those nude photos you never wanted posted in the first place" -- are highly problematic. But... as with all kinds of "highly problematic" activities, it all too often happens that law enforcement's zeal to take down the bad guy means they twist laws in dangerous ways that could have significant consequences for plenty of good sites. That appears to be the case here.

Again, Bollaert is a despicable person. A year ago, Adam Steinbaugh was one of the first to detail the nasty practices of "YouGotPosted" (or "UGotPosted") and the companion site "ChangeMyReputation." However, as Eric Goldman details, there are a bunch of dangerous problems with the charges that Harris filed against Bollaert, mainly in that many of them seem to blame him for the way users use the site -- something that the site is protected from under Section 230:

The other two asserted unlawful purposes are (1) online harassment per Penal Code 653m(b) (criminalizing “repeated contact by means of an electronic communication device”), and (2) the civil tort of public disclosure of private facts (citing a troubling precedent, In Re Rolando S.). Unlike the extortion claim, both allegations depend on the behavior of the website’s users. The complaint doesn’t allege that Bollaert himself made repeated contacts with victims using an electronic communication device, or that Bollaert himself disclosed anyone’s private facts. Instead, the complaint alleges that Bollaert ran a UGC website where users performed unlawful activities. But that’s exactly what UGC websites do: they let users publish content online for both good and evil. If we hold UGC website operators responsible for the fact that their users sometimes commit crimes, then all UGC website operators are criminals.

Fortunately, that’s not the law. In 1996, in 47 USC 230 (Section 230), Congress said that websites aren’t liable for third party content, even if the third party violates state criminal law. From my perspective, based on the allegations in the complaint and arrest warrant, the identity theft charges predicated on harassment and privacy violations appear to be preempted by Section 230

It's no secret that the various state attorneys general, including Harris, would love to wipe out Section 230. So perhaps she sees this as a chance to take a case so emotionally charged that she can get a favorable ruling. That's dangerous, since as Goldman notes, this would effectively wipe out Section 230 for many, many sites that allow user contributed content.

A second problem with the complaint is that it relies on an identity theft law used against Bollaert. But anyone looking at the situation would know right away that this isn't any kind of identity theft. Again, Goldman explains:

The crime asserted here, Penal Code 530.5(a), has two elements. First, the defendant must willfully obtain personal identifying information. Second, the defendant must use that information for an unlawful purpose.

When applied to actual identity theft, these elements make sense. If I steal your social security number and use it to obtain a credit card that I use to run up fraudulent charges, the two elements are clearly satisfied.

As applied to Bollaert, in contrast, the elements are confusing. (The criminal complaint, as typical for the genre, doesn’t explain how the law applies to the facts). How did Bollaert willfully obtain personal identifying information? He allegedly ran a UGC website where users could submit photos and personal information structured into standardized categories. It seems like this allegation would equally describe how all UGC websites “willfully” obtain content from their users.

The one area where the claim may actually make some sense is the extortion claim -- as that definitely seems questionable. However, once again, this can run into some problems. For example, you can see a perfectly legitimate service that charges some sort of processing fee to take down content that had been previously posted. Merely charging to remove content, by itself, shouldn't be seen as extortion. Hell, we've recently had comment spammers who apparently got punished by Google's search rankings email us about removing the comment spam they were able to sneak through our spam filters. When I mentioned how silly this was on Twitter, many people suggested that we should charge the spammers to remove their spam comments. That actually seems like a reasonable (if amusing) idea. But would that be extortion? Under the claims against Bollaert, it's possible that such an action would be considered the same thing -- but I doubt most people would think the request to spammers would be extortion (not that we've done it either way).

And that leaves this whole case in a tricky spot. Bollaert's site was a problem. What he was doing was despicable in so many ways it's almost difficult to keep track of them all. But, if the case is allowed against him, it's quite possible that very bad precedents will be set that lead to significant problems for tons of legitimate sites. As Goldman notes, however, there's a good chance it will never get this far. Bollaert almost certainly will take a plea deal, and Harris will get yet another headline about how she's protecting the citizens of California, even if her legal theories might undermine its economy -- and many of the sites that people around the globe enjoy.

Filed Under: california, extortion, identity theft, kamala harris, kevin bollaert, liability, revenge porn, section 230
Companies: changemyreputation, yougotposted

California AG Pretends Copyright Infringement Is Theft; Charges Streaming Site With Grand Theft

from the hmm... dept

I was a bit confused to see California Attorney General Kamala Harris announce that she, with the help of the MPAA, had broken up an "online piracy ring" that was streaming movies online. That's because Harris has no authority when it comes to copyright issues. Copyright is a federal, not state law, and copyright cases need to be in federal court. But that's not what happened here. Instead, she rounded up a trio of brothers, Hop, Tony and Huynh Hoang... and charged them with grand theft, conspiracy and receiving stolen property. I was wondering if there was any actual "theft" going on here, or if Harris is simply redefining theft to get around federal preemption rules for copyright infringement. From her statements, it sounds like a blatant attempt to get around federal preemption as a favor to the MPAA.

“Digital piracy is theft. It is a serious crime that harms one of California’s most important economic engines – our entertainment industry,” said Attorney General Harris. “This case sends a clear message that the California Department of Justice will investigate digital piracy and prosecute violators to the fullest extent of the law.”

Except that infringement and theft are two very different issues, which are taken care of under two very different laws. I know that the MPAA loves to call infringement "theft" but it does not make it legally "theft."

Separately, it's worth pointing out that the details of this case, once again show that the claims of people that various "pirate" sites are making tons of money doesn't have much support:

Over the 18 months of the website’s operation, the brothers earned approximately $150,000 in advertising revenue.

So, 18 months, 3 brothers, $150,000. That's $50,000 per brother. Or, about $33,000 per year, per person, not counting expenses. If the sites were even remotely popular, most of that money went towards hosting. So, not exactly a huge moneymaker.

Either way, the bigger issue here appears to be the attempt by the MPAA and AG Harris to redefine copyright law as "theft" to avoid a federal case concerning copyright. That's an incredible attempt to change the meaning of the law, which one hopes a judge will toss out on preemption grounds. If these brothers actually did what they're accused of, why not go after them on copyright infringement grounds? It seems likely that the MPAA has been just waiting for a case like this to try to circumvent the basic tenets of copyright law, to pretend that laws on theft apply.

Filed Under: california, copyright, infringement, kamala harris, preemption, streaming, theft
Companies: mpaa

California Looking To Protect You From The Scourge Of Airlines Not Mentioning Privacy Policies You Don't Read

from the i-feel-so-much-safer dept

Back in October, we wrote about how California Attorney General Kamala Harris was threatening United Airlines over Twitter, because their mobile app apparently didn't prominently display the app's privacy policy. California has a silly law that requires privacy policies. Now, Harris has actually sued Delta airlines over the same thing. Of all the illegal things that Harris could be going after, is focusing on mobile apps that don't prominently display their privacy policy really the best use of her time and my taxpayer dollars?

The whole infatuation with privacy policies is, frankly, stupid. They do nothing to actually increase your privacy. Since the only thing they do is hold you to your own rules, they actually encourage companies to take your privacy less seriously, since to avoid possible liability, they're likely to craft privacy policies that aren't as strict. Furthermore, no one reads those things. Forcing companies to display a broadly written policy designed to limit their liability, which no one cares about and no one will read... just seems like a complete waste.

Of course, as we've discussed before, this is exactly what state Attorneys General do all the time. They pick some random issue they can grandstand about, and then pick on companies over those issues, putting all sorts of public pressure on them, solely for the purpose of generating headlines about how they're "protecting consumers" or some other bogus claim... and then they use those headlines for when they run for higher office. The Attorney General slot is quite frequently seen as a stepping stone to becoming governor, and so many AGs abuse the position with these kinds of legal threats and lawsuits almost entirely to be used as campaign fodder. It's sad and pathetic and does little to actually protect the public.

In Harris' press release about the lawsuit, she makes this silly claim: "Losing your personal privacy should not be the cost of using mobile apps, but all too often it is." But that's ridiculous. Just because Delta doesn't link to its privacy policy from the app doesn't mean that users lose their personal privacy.

The only encouraging thing here is that looking through the comments on the Ars Technica article linked above, they seem almost universally to be against Harris for filing such a silly and pointless lawsuit. Maybe, one day, we can hope that such pointless grandstanding is seen for what it really is: a cynical ploy to make an Attorney General look good in the press, rather than any legitimate legal issue.

Filed Under: california, kamala harris, mobile apps, privacy, privacy policies
Companies: delta