Backpage.com and other websites that host ads by pimps for the services of their girls, remain out of reach by the police, protected by federal law and the First Amendment
By Brian Rokos | The Press-Enterprise | September 25, 2016
Five years after the National Association of Attorneys General urged classified advertisement website Backpage.com to remove its “escort” listings, law enforcement officials appear no closer to realizing their goal of eliminating what they consider thinly disguised solicitations for prostitution.
Since the letter signed by all 50 attorneys general was sent to Backpage, there have been some successes in prosecuting the pimps that place the ads, which dance around the edges of the law by withholding most mentions of price for “candy,” “massages,” and “service.”
Just last week, the San Bernardino County Human Trafficking Task Force arrested Marquell Deante “Kell the King” Stewart, who investigators said forced juvenile girls to work for him and advertised their availability on Backpage. In August, detectives said they broke up a ring trafficking enslaved Chinese nationals that operated in nine counties, including San Bernardino and Riverside, and advertised on Backpage.
But the big prizes, Backpage.com and other websites that host the ads, remain out of reach, protected by federal law and the First Amendment.
“They are a tool for human traffickers,” San Bernardino County District Attorney Mike Ramos said. “We have seen the ongoing victimization of those being trafficked for sex in San Bernardino County and across the country.”
Liz McDougall, Backpage’s general counsel, disagrees. She says the company is on firm legal ground and works hard to report abuses of the website.
Still, law enforcement officials are keeping their noses to the keyboard. On Sept. 28, Ramos, president of the National District Attorneys Association, will be one of the opening speakers at an international human trafficking summit in Honolulu.
Ramos said he plans to discuss successes his office has had fighting human trafficking — suppression, victims’ rights, Stop the John and intervention — and the next steps that should be taken with legislation.
“To me that is really just a crime that is so easy to access for both the john and the traffickers,” Ramos said.
Protected speech
Any legislative action would likely involve Congress attempting to amend the Communications Decency Act, an effort that would be sure to touch off a constitutional fight, said Erwin Chemerinsky, dean of the UC Irvine School of Law.
A court ruling in March strengthened Backpage’s legal position.
The U.S. Court of Appeals for the First Circuit upheld the dismissal of a lawsuit against Backpage brought by three women who had appeared in escort ads posted by their pimps. The judges ruled that Section 230 of the Communications Decency Act prohibits treating an online service provider such as Backpage “as the publisher or speaker of any information provided by another information content provider.”
Chemerinsky said the ruling that puts the onus on the advertiser to comply with anti-prostitution laws means “it’s going to be very difficult to stop things like Backpage from being able to have the ads.”
With the First Amendment protecting commercial speech, Chemerinsky said, law enforcement’s best alternative would be for police to target individual pimps, one lurid listing at a time.
“There’s no doubt what it is for,” he said, while adding, “Just because some (ads) are illegal doesn’t mean they all are.”
Backpage must answer
Police department vice squads scour Backpage ads, looking for cases to pursue. They’ll look for photographs that appear to depict minors and contact the advertiser to set up an undercover sting. They go after the pimps. Police now largely consider the prostitutes to be victims and offer them services and the opportunity to redirect their lives.
Backpage has said it scans for 25,000 terms and code words linked to prostitution, sex trafficking and child exploitation, and it reports about 400 suspicious ads every month to the National Center for Missing and Exploited Children.
“I firmly believe what we are doing is part of the solution and in the best interest for the victims,” McDougall said.
Backpage will have to prove that point after the U.S. Supreme Court this month refused to block a congressional subpoena seeking documents on how Backpage screens ads for human trafficking. The Senate Permanent Subcommittee on Investigations had sought the documents as part of its investigation into human trafficking over the internet.
McDougall, meanwhile, drew a distinction between the criticism from elected officials such as district attorneys and attorneys general, and what she said is support from front-line police who combat human trafficking.
“This has nothing to do with politics, and everything to do with victims,” said Ramos, who has announced plans to run for state Attorney General in 2018.
San Bernardino police vice Detective Kim Hernandez praised Backpage, to a point.
She said Backpage is responsive to requests for records on those who purchase escort ads
“In that way that’s positive,” Hernandez said. “But I think that they could do better as an organization to combat human trafficking if they didn’t allow the escort ads at all.”
Hernandez said the ads are deceptive, sometimes showing photographs of an adult when the person advertised is a minor. And sometimes a minor is shown.
“It’s shocking because they (customers) can see how young they are in the photographs,” she said.
Asked if she is hopeful about her mission, Hernandez said: “My biggest sense of hopefulness is that people are becoming more educated about human trafficking. My hopefulness comes from increasing sentencing requirements.”
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