New Government Documents Reveal That Backpage Was Actively Helping Law Enforcement Track Down Traffickers

from the oh,-look-at-that dept

For many years, we've pointed out that for all the salacious stories and claims about how Backpage.com was somehow supporting and facilitating sex trafficking, the site was actually an amazing tool for finding, arresting, and convicting sex traffickers. Earlier this year, we wrote about a very detailed piece in Wired that highlighted just how far Backpage went in helping law enforcement stop sex trafficking:

On October 18, Backpage announced on its blog that it had retained Hemanshu Nigam, a former federal prosecutor who specialized in sex crimes and child abuse, to develop a “holistic” safety program. Nigam sat on the board of the National Center for Missing and Exploited Children and had done similar work for Myspace. In the months that followed, Nigam and his new clients met repeatedly with representatives from anti-trafficking organizations. They discussed changes to Backpage’s site architecture, moderation practices, and content policies. The organizations suggested, for instance, that users should be prevented from employing search terms such as “incest” or “Lolita,” since these might “indicate illegal activity.” Backpage moderators, meanwhile, should be on the lookout for “ads written from masculine perspective,” particularly if they employed the euphemism “new in town,” which “is often used by pimps who shuttle children to locations where they do not know anyone and cannot get help.”

By late January 2011, Backpage had implemented many of the recommendations: It had banned photographs with nudity, drawn up a list of “inappropriate terms,” beefed up its vetting process, and begun referring “ads containing possible minors” directly to Allen’s staff. Ferrer also worked closely with the authorities. According to a Justice Department memo from 2012, “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.” A later memo noted that “even Ernie Allen believed that Backpage was genuinely trying to rid its site of juvenile sex trafficking.”

Where things got more heated was when law enforcement wanted to go after Backpage for consensual sex, rather than trafficking. But, because it was convenient, politicians, law enforcement, and the media kept up the charade that Backpage and its founders were deliberately supporting sex trafficking. However, as a new article at Reason by Elizabeth Nolan Brown makes clear, the government knew all along that Backpage was one of its best partners in stopping sex trafficking. Some new documents have come out as part of the ongoing lawsuit against Backpage and its founders by the feds that kind of undermine the entire narrative about Backpage.

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.

You might notice that one of those quotes above was included in that Wired piece I quoted earlier. However, as Nolan Brown notes, these and another memo were "accidentally" revealed to Backpage's defense lawyers, but then the judge sealed them and ruled them off-limits for the defense, despite their exculpatory nature.

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.

As Reason points out, multiple attempts to pull together trafficking charges against Backpage fell down as investigators realized that Backpage was actually on their side on these things, and there was no evidence of Backpage actually supporting trafficking.

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.

[....]

"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.

This seems notable, and seems to explain why it took so long for the feds to move against Backpage. Remember, that despite all the rhetoric around Section 230, federal criminal laws are exempt from 230, and if the feds actually had evidence of Backpage engaging in sex trafficking, the DOJ could have taken the site down at any time.

The Reason article goes into great detail, often contrasting public statements about Backpage with what was happening behind the scenes, while also showing how those who had decided, unequivocally, that Backpage was evil, would twist any step it made to stop sex trafficking as evidence that it was facilitating sex trafficking.

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, as the memos show over and over again, the feds who were investigating Backpage simply could not make a case against the company, since it was so eager to help to stop sex trafficking.

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."

It seems fairly ridiculous that Backpage is now prevented from using this evidence in court, but at the very least, the court of public opinion deserves to see what was really happening.

Filed Under: cooperation, intermediary liability, section 230, sex trafficking
Companies: backpage

UK, American Breweries Show How The Craft Beer Industry Should Be Handling Trademark Issues

from the how-it's-done dept

Any brief review of the posts we've done here on the craft beer industry's recent heel-turn on all things trademark would give you the impression that there are few good guys any longer and all potential trademark disputes become disputes dialed to eleven in every case. The industry, which has exploded in last twenty years or so, initially developed a tradition for cooperation and congeniality. This was largely to do with the craft industry being heavy on very small startup breweries coupled with the tradition for creative names of brews and artistically inspired label designs. The end result was breweries that quite often swept aside what would be trademark disputes in other industries in favor of camaraderie.

That tradition has unfortunately largely disappeared over the past decade. In its place is what's become the steady corporatization of the craft beer industry, which has dragged expensive legal teams into the ranks. Those legal teams too often treat trademark concerns differently than the old guard did, opting for protectionism and aggression rather than cooperation.

But the old ways are not entirely gone, as demonstrated by UK and American brewery teams that chose instead to work with rather than against one another.

The Loose Cannon Brewery of Abingdon, UK has recently established trademark agreement with Heavy Seas Beer of Baltimore, Maryland as Heavy Seas moves towards selling their beers in the UK and Europe.

Heavy Seas’ flagship brand, Loose Cannon IPA, was potentially going to create confusion with the Loose Cannon Brewery. Happily, the Trademark ownership and use issue has now been fully resolved with Loose Cannon taking over the ownership of the UK trade mark and subsequently granting a license for use to Heavy Seas Beer in the UK. Heavy Seas has granted a mirror license to the Loose Cannon Brewery for the use of the Trademark in the EU.

It's sad how unique this sort of thing has become. Two breweries, between which there was a sensible concern about confusion over trademark rights and branding names, opted to cross-license to one another so that each entity's products could be sold in each market. In addition to demonstrating a congenial approach, it also strikes me that a move like this demonstrates the confidence each brewery has in its own products. This kind of permissive attitude towards what is ostensibly going to be some level of competition only happens when each side is confident that its own fans' love of each beer will keep any real confusion at bay.

Not satisfied with just being cool about all of this, however, the two breweries went a step further to solidify the positive relationship by collaborating on brews as well.

To mark what has been a successful outcome, the two brewers will produce a collaboration brew in 2019 at the Loose Cannon Brewery in Abingdon to introduce Heavy Seas beers to the UK market.

But this needs to be more than a mere feel-good story. It should serve as a template for other craft breweries as to how to interact and resolve potential trademark issues between peers. The craft industry is simply better for outcomes such as these.

And that should be good for everyone.

Filed Under: cooperation, craft beer, eu, licensing, loose cannon, trademark, uk, us
Companies: heavy seas beer, loose cannon brewery

DOJ Proposal Would Let FBI Hack Into Computers Overseas With Little Oversight

from the freedom?-what-freedom? dept

Ahmed Ghappour, over at JustSecurity, alerts us to a rather frightening proposal from the Justice Department that would enable law enforcement to hack into the computers of people who are trying to be anonymous online. At issue is that current rules basically would extend the powers granted for terrorism investigations to everyday criminal investigations, concerning specifically the DOJ/FBI's ability to hack into computers. In the past, judges could issue warrants for such computer hacking if the target was known to be located in the same district. But the proposed change would wipe out that limitation, and basically give the DOJ/FBI the power to get approval for hacking into a much broader range of computers. Without the geographical limitation, there's concern about just how broadly this new power would be (ab)used:

The DOJ proposal will result in significant departures from the FBI’s customary practice abroad: overseas cyber operations will be unilateral and invasive; they will not be limited to matters of national security; nor will they be executed with the consent of the host country, or any meaningful coordination with the Department of State or other relevant agency.

Under the DOJ’s proposal, unilateral state action will be the rule, not the exception, in the event an anonymous target “prove[s] to be outside the United States.” The reason is simple: without knowing the target location before the fact, there is no way to provide notice (or obtain consent from) a host country until after its sovereignty has been encroached.

Without advanced knowledge of the host country, law enforcement will not be able to adequately avail itself to protocols currently in place to facilitate foreign relations. For example, the FBI will not be able to coordinate with the Department of State before launching a Network Investigative Technique. This puts the U.S. in a position where a law enforcement entity encroaches on the territorial sovereignty of foreign states without coordination with the agency in charge of its foreign relations.

In short, every new criminal investigation by the FBI will open up the possibility of a diplomatic nightmare and embarrassment. But, really, who cares when there are criminals to go after, right?

When a state’s sovereignty is encroached upon, its response depends on the nature and intensity of the encroachment. In the context of cyberspace, states (including the United States) have asserted sovereignty over their cyber infrastructure, despite the fact that cyberspace as a whole, much like the high seas or outer space, is considered a “global common” under international law.

[....] Given the public nature of the U.S. criminal justice system, it is hard to see how the FBI will avoid risk of prosecution (similar to that in the Chelyabinsk incident) if the DOJ proposal is approved.

The Chelyabinsk incident refers to involved Russia filing criminal hacking charges against the FBI for the FBI logging into a Russian server, seeking evidence against some Russian hackers.

And, of course, there are other issues with the proposal as well -- as you'd expect any time you see law enforcement seek to move anti-terrorism tools over to standard crime-fighting. For example, the current proposal could authorize questionable hacking techniques by the FBI. Ghappour suggests that if the DOJ really wishes to push forward with such a proposal, it needs to clearly limit the techniques that are allowed:

The Rule should not authorize drive-by-downloads that infect every computer that associates with a particular webpage, the use of weaponized software exploits in order to establish “remote access” of a target computer, or deployment methods that risk indiscriminately infecting computer systems along the way to the target. Nor should the Rule authorize a “search” method that requires taking control of peripheral devices (such as a camera or microphone).

There are other suggestions, of course. As it stands, the proposed amendment allows the FBI to use a wide array of invasive (and potentially destructive) hacking techniques where it may not be necessary to do so, against a broad pool of potential targets that could be located virtually anywhere.

Of course, why would the DOJ ever limit itself when it has the chance to get access to an even more powerful tool for hacking into anyone's computers?

Filed Under: anonymity, cooperation, diplomacy, doj, fbi, hacking, overseas, tor

European Mobile Operators Cooperate On Coverage

from the if-you-can't-beat-'em dept

American mobile operators' advertising is still dominated by claims about their network coverage, from the "Can You Hear Me Now?" guy to consistent sniping about whose network is bigger. But in Europe, competing on coverage largely went out years ago, thanks to smaller geographic areas to cover and denser populations, while converging on a single technology didn't hurt, either. Some operators there have gone so far as to embrace network sharing, where they collaborate on their infrastructure with their rivals to cut costs. Vodafone and Telefonica have announced the biggest network-sharing deal so far, saying they'll jointly build new cell sites and consolidate existing ones in several countries across the continent. Network sharing is seeing renewed interest as operators look to trim their capital expenditures, but it can benefit consumers as well. In one sense, a lot of spending is duplicated by rival operators as they build out network footprints that are roughly equivalent; significantly reducing that cost would have a big impact on their businesses, and allow them to redirect some of those resources elsewhere. As a Telefonica exec says, "by reducing our costs in areas of the business that customers don't see, we can ensure that we invest in areas they truly value." Thus far, many operators' response to the commoditization of their product has been to try and differentiate on coverage; eliminating that factor could spur them to differentiate in other ways, such as with new and better services.

Filed Under: cooperation, europe, mobile coverage
Companies: telefonica, vodafone