On Monday January 9th, in response to the release of a report by the US Senate on the activities of Backpage.com, Backpage’s adult classified ads section now just directs you to a page with a “censored” label on it:
Clicking on the main “Find out why” link on the ‘censored’ page, leads you here, where Backpage.com proclaims that they have been censored by the US government and have been forced to shut down their adult classified section. However, is this what actually happened?
There has been no government order for Backpage.com to shut down its adult classified business. Indeed, all of BP’s non-US domains still contain adult ads — for example, http://london.backpage.com/FemaleEscorts/ just forwards to http://london.backpage.co.uk/FemaleEscorts/, where there are hundreds of escort ads.
So what’s going on here?
Yes, Backpage has definitely been harassed by various sections of the US government. Pressure has been brought to bear upon Mastercard and Visa not to take money from Backpage.com, and numerous prosecutions having been attempted against the site. However, in our opinion, the principals of Backpage are running for cover due to their past questionable behavior, which the Senate report has exposed.
We’ve read the senate report. It seems to detail activity conducted by Backpage employees which is illegal under the United States law. As Backpage has all of their operations and computer servers located in the United States, this seems to be a serious error in judgement on the part of the owners and chief officers of the company.
Backpage.com, like other American owned and operated websites has greatly benefited from a law passed by the US government in 1996 called ‘The Communications Decency Act’ or CDA for short. As much as we all complain about the inefficiencies of the US congress, the CDA has turned out to be a fantastic piece of law, and has been instrumental in the rise of companies as diverse as Google (in particular Youtube), Facebook, Amazon and Ebay.
Section 230 of the CDA provides broad immunity to any ISP (Internet Service Provider) that republishes content online. The courts have held that companies such as Youtube, Facebook, and Backpage are considered ISPs. The CDA further protects companies that engage in a good faith screening or blocking of material, that is posted by their users or other content providers that the ISPs have found to be objectionable.
This is why for instance, you can post horrible photos to Facebook, and if they are reported, Facebook will then remove them; but because of the CDA, Facebook can’t be held liable. On the other hand, the user that originally posted the content can be held liable (if that content is found to be illegal).
So why is Backpage.com in trouble? Why did they take down their escort ads? It’s just users posting content on their site, right? If escorts want to post ads for their services on Backpage.com, then there shouldn’t be any problems for Backpage, regardless of whether or not the content of those ads is legal or illegal.
Well, it turns out that according to internal communications that BP turned over to the senate committee, the website both manually and automatically edited their user’s escort ads, and they then published those ads to the site. They did this on the escort’s behalf, but without coordination with the escorts that were doing the posting of ads. In effect, Backpage became the actual publisher of escort ads.
Wait, aren’t escort ads legal? Isn’t escorting legal everywhere? Yes, escorting is legal, but as we all know, prostitution, that is the explicit trading of money for sexual favors among adults, is not legal in the United States (and in some other countries in the world). The prostitution of minors is illegal in nearly every country in the world, as is the forced prostitution of people (commonly referenced as sex trafficking or human trafficking).
What the senate report found was that Backpage took ads that they knew were illegal or were probably illegal, and changed the ads to make them look legal, and then published those ads on their web site. As an example, there is documentation about them removing such words as “young”, “teen”, and “lolita” from ads, and then publishing the ads without those terms. This editing took place both manually and automatically (with a computer script that scanned ads during the publishing process).
There have been repeated court cases brought against Backpage in various states, example one, example two, example three, but each time BP has won those cases, relying in large part on section 230 of the CDA, that indemnifies them, because they are not responsible for the content that others publish on their site. What the senate report states is that BP is the actual publisher of the illegal content, and is thus responsible for it. This suggests that Backpage has misrepresented their business activities to the courts in these past cases.
The senate report details how over time Backpage has changed their position internally on how they deal with questionable ads. At some points in time they rejected questionable ads, at other points they manually edited the ads, and then published them; other times they had an automatic filter on user ads that removed phrases that looked illegal and then published the ads. In all cases when Backpage edited the ads and then published them, they did so without interacting with the original poster.
Backpage has made hundreds of millions of dollars from the publishing of escort ads, this gives lots of incentive for zealous district attorneys to prosecute Backpage.com and attempt to seize those funds. Actively publishing ads that you know to originally contain questionable content, especially content suggesting prostitution with minors (as terms such as lolita suggest), is a recipe for disaster.
Backpage handed over a million pages of internal documents and emails to the senate report, and within 1-2 months, the senate report found numerous examples of what they considered the illegality of Backpage’s actions. We imagine that given the time constraints, there is likely more dirt to be uncovered.
We expect that Backpage is going to be hit with a variety of criminal complaints from aggressive district attorneys. Backpage obviously has a large legal fund to defend themselves, but based on the senate report, we would be surprised if they continue to be in business for much longer.