PSI Implicates Backpage in Facilitating Child Online Sex Trafficking, Promises More Action

On the eve of the hearing, Backpage said it shuttered its adult content section as a "direct result of unconstitutional government censorship," a move that pleased lawmakers and child advocates but disappointed some civil society and free speech supporters. The move also came after the Supreme Court didn't intervene. "For years, the legal system protecting freedom of speech prevailed, but new government tactics, including pressuring credit card companies to cease doing business with Backpage, have left the company with no other choice but to remove the content in the United States," said the company in a statement. Portman told reporters after the hearing that the advertiser's action "obviously ... was a vindication of our report. It was not censorship. No one told them to do that. It was, I guess, self-censorship on their part knowing that they've been caught."

"Last night was a night when a child likely was not sold off of Backpage.com. It has been years since somebody could say that," said Yiota Souras, general counsel for the National Center for Missing & Exploited Children, referring to closing the site down. She told us after the hearing that NCMEC has never recommended that the company shut down a site, but has advised and encouraged it and other companies to change its practices to not facilitate and enable child sex trafficking. But Souras said Backpage's activities aren't about free expression, free internet or about the First Amendment but about criminal activity that isn't protected by the law.

The Center for Democracy & Technology said the firm's bowing to government pressure is a "direct blow" to online free speech. "This issue is about far more than just one company or one form of speech; it’s about protecting the right of all Americans to freely express themselves online and to find platforms for their constitutionally protected speech. This is an important reminder that our online freedoms remain under threat,” said CDT President Nuala O’Connor in a statement. "While the fundamental legal framework protecting free speech remains strong, too often we see government officials attempt to circumvent these protections to achieve their censorship goals."

Ferrer and colleagues including Chief Operating Officer Andrew Padilla, co-founders Michael Lacey and James Larkin and General Counsel Elizabeth McDougall invoked their First and Fifth amendment rights in declining to answer questions from Portman and ranking member Claire McCaskill, D-Mo. They were excused after about 30 minutes of questioning from PSI, and the executives declined to comment to reporters. At the start of the hearing, Backpage counsel Robert Corn-Revere of Davis Wright asked PSI if he could read a statement on behalf of the witnesses. Portman and McCaskill denied the request, but said it would be made part of the record.

Corn-Revere provided the statement to some reporters after the witnesses left and before the second panel, which featured the parents of two victimized underage girls. He said that "although the subcommittee has taken the position that the First Amendment does not apply to decisions by Backpage.com about how to publish or edit third-party content, courts across the country have held such choices by Backpage.com, Google, and other online intermediaries are essential to maintaining an open Internet and are fully protected by the First Amendment." He said decisions about accepting and rejecting ad submissions and about editing and displaying them are protected by the Constitution as well as protection "against the forced disclosure of editorial policies."

The company and PSI have been fighting for nearly two years with lawmakers taking Ferrer to court to force him to testify and provide documents (see 1603170042, 1608170007 and 1610070013). Citing the panel's report, Portman said Backpage portrayed itself as an ally of anti-sex trafficking efforts, but the company actually deleted words in sex ads such as "lolita," "teenage," "rape," "school girl," and "amber alert" before publishing those ads. He said the company actively edited "70 to 80 percent" of ads in the adult section.

In one question to Ferrer, Portman said Backpage avoided liability by invoking protection from Section 230 of the Communications Decency Act. The law is often used to shield website operators from lawsuits arising out of third-party content so it would allow freedom of expression and innovation to flourish on the internet. But Portman said the site used CDA to perpetrate a "fraud" on the courts and victims. "Backpage took an active hand in creating the ads on your site," he said. He and McCaskill also asked questions on such things as Backpage's underreporting underage sex trafficking ads to NCMEC and practices that refused to delete suspicious ads if parents requested them.

On the second panel, a witness identified as "Nacole S.," the mother of one of three trafficked victims who sued the firm in 2014 (see 1603180035), said the company has been "abusing constitutional protections for greed and gain" and called Ferrer "no warrior for free speech," but "just another pimp." In March, the 1st U.S. Circuit Court of Appeals dismissed the lawsuit by the three victims, saying Backpage wasn't responsible for their appearance in prostitution advertisements posted by third parties. They appealed to the Supreme Court, which Monday refused to hear the case, letting the lower court ruling stand.