Mimesis Law
25 June 2017

When Even Prosecutors Think Backpage’s Shutdown Sucked

February 7, 2017 (Fault Lines) – Last month, authoritarians across the United States had a lot to celebrate when they forced Backpage, the world’s second-biggest classified-ads website, to shut down its adult section. A motley crew of elected officials at all levels of government, including United States senators, state attorneys general and local law enforcement, bullied Backpage and its executives into getting rid of it, supposedly because they were concerned about people being “sex trafficked” (sold for sex against their will) on the site.

Of course, as Reason’s Elizabeth Nolan Brown points out, Backpage was already cooperating with law enforcement to bring sex traffickers to justice – something that won them numerous accolades from state and federal cops. Purely with respect to fighting crime, the government’s victory was somewhere between empty and actively harmful. No criminals were caught when the adult section shut down. Worse, by driving any actual predators on the site deeper underground, the government may have made it harder to help sex-trafficking victims going forward.

What’s more, politicians and law enforcement conflate sex trafficking with voluntary prostitution. As call girl, former madam and “whores’ rights activist” Maggie McNeill has been arguing for years, there are no good data to suggest anything but a tiny fraction of sex workers are trafficked. (She estimates the percentage of prostitutes controlled by pimps at 1.5%.) What’s certain is that a lot of prostitutes who choose the work because it pays well used Backpage’s adult section, and the government’s self-indulgent crackdown put their livelihoods at risk. Since the very existence of sex work tends not to sit well with family-values voters, this may not be a huge tragedy for the people responsible.

And the methods Backpage’s enemies used to put pressure on the site ranged from the wildly lawless to the flagrantly unconstitutional. Thanks to Section 230 of the Communications Decency Act and the First Amendment, Backpage and its execs won every single court case over the course of the government’s witch hunt. But as anyone who’s had to defend against a frivolous defamation suit knows, it’s not necessarily about whether your position has merit, but whether you can afford to back it up in court. Caving is almost always the cheaper option, even if it’s legally and morally pusillanimous.

For years, Backpage’s execs fought a rearguard action against bad actors in government who wrapped themselves in the mantle of righteousness to score political points by “shutting down” something that, to the extent it was happening at all, was already being dealt with. In the process, the government trampled on protected speech, knowingly violated federal law and put voluntary prostitutes and actual sex-trafficking victims at risk. It was, in a nutshell, bad.

But the government’s Fabian strategy paid off when Backpage decided it couldn’t afford to keep resisting. The adult section is in ashes. So what happened to the hookers? David Ovalle has a wide-eyed article in the Miami Herald in which he realizes they didn’t go anywhere. They’re still right under our noses.

A scan of Miami’s Backpage.com site quickly uncovers dozens of women and men like Abigail, who have simply hung their sex business shingle in new places on the site. Now, with the “adult” category gone, she posts ads on the “women seeking men” dating section.

In other words, they’re doing exactly what Craigslist’s sex worker base did when that site shut down its adult section after a similar bullying campaign in 2010. The only difference is that Craigslist’s users moved to the “Casual Encounters” section. Sex work always finds a way; it’s the world’s oldest profession for a reason.

How does law enforcement feel about this? They’re no dopes, after all, and if it’s on the Miami Herald’s radar, you can bet it’s on theirs.

The shuffling on Backpage is being watched closely in Miami-Dade, where prosecutors have been aggressive about going after pimps and traffickers, while trying to provide rehabilitation services to girls who have been coerced into selling their bodies.

Scouring Backpage for victims, particularly underage runaways, has been a chief tool for Miami-Dade’s Human Trafficking Unit, leading to scores of arrests in recent years. Just over half of adult victims in recent Miami-Dade cases, and 40 percent of minor victims, were advertised on Backpage.com, according to prosecutors.

The first part suggests Ovalle isn’t a man to question law enforcement’s motives or scrutinize their claims. The second part implies he’s unaware that pimps are a rarity and underage runaways are much more likely to choose to “[sell] their bodies” than be “coerced.”

Ovalle’s lack of journalistic follow-through creates a bit of a problem.[1] Without any detail on what Miami prosecutors consider a sex-trafficking case or hard numbers so we can assess whether they’re pursuing a realistic number of cases, it’s tough to say whether Miami law enforcement used Backpage to go after real traffickers or added unrelated cases to the mix.

We can, however, make an educated guess. Since 7% of prostitutes in a 2013 FBI sting were found to be under 18[2] (half that in a New Zealand study,) 10% of underage prostitutes in a 2011 John Jay study reported having pimps and fewer than half those pimps are likely to control their prostitutes rather than vice versa, we can expect the number of genuine underage trafficking cases among Miami-based Backpage users to be very low. For prosecutors to have made “scores of arrests” is therefore a little eyebrow-raising.

The real meat of the article is a bunch of quotes from law enforcement and other interested parties on the Backpage shutdown, all of which are remarkably negative. Some prosecutors say it was an exercise in futility.

State Attorney Katherine Fernandez Rundle dismissed Backpage’s widely publicized closing of its adult section closing as nothing more than a “shell game.”

“They’ve all moved to the dating section,” Fernandez Rundle said. “The same victims are being found there.”

Others see the potential for a setback in the fight against legitimate cases of trafficking.

“It would be a mistake for investigators or prosecutors to assume that trafficking will decrease because of the shutdown of Backpage’s escort ads,” said Jane Anderson, a former Miami-Dade assistant state attorney who now works for AEquitas, an anti-human trafficking resource organization for prosecutors.

“In fact, investigators and prosecutors must now be even more proactive and resourceful to uncover trafficking that is occurring on lesser known websites, including other areas of Backpage.”

The most explicit criticism comes from, of all people, a sex-trafficking victims’ advocate.

“It’s a symbolic crusade,” said Kimberly Mehlman-Orozco, an author and criminology professor at George Mason University who serves an expert witness in human-trafficking cases. “They’re trying to get some accolades and look like the heroes. It’s having a negative effect on the ability for law enforcement to rescue victims and prosecute offenders. The best we can do is facilitate the capabilities of police to investigate.”

Naturally, none of the three are willing to concede that there may not be many victims out there. However, to the extent that Backpage was an important place to go to fight what trafficking there is, all three acknowledge that the anti-Backpage coalition’s shutdown effort didn’t help a bit. Two even think it made things worse.

It’s notable how few people have come forward to defend what happened. The most vocal messages of support came from the participants themselves, who made a point of congratulating each other for their role in bringing it about. And when Florida prosecutors and the staff of Reason magazine agree that an act of government was ill-advised, you can be pretty sure it wasn’t the greatest idea ever.

Life goes on. Prostitution on Backpage goes on, even though some sex workers saw their livelihoods disrupted for the sake of a politician’s vanity. Sex trafficking goes on, though the victims are a little tougher to reach. And all the while, senators both new and old slap each other on the back for their great work flaunting the law and the Constitution, because the end justifies the means. Some end.

[1] And I haven’t even mentioned the grotesque way he botches Backpage’s legal history, including by omitting critical context and claiming judges ruled in ways they did not.

[2] I hope you people appreciate that I googled “florida age of consent” for this post. I’m probably on a watchlist now.

4 Comments on this post.

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  • L
    7 February 2017 at 6:10 pm - Reply

    ‘Some’ sex workers? More like literally hundreds of thousands perhaps even millions of sex workers! Imagine if a company went out of business and hundreds of people lost their jobs it would be big news in the case of Backpage literally hundreds of thousands of people have lost their jobs can you imagine the stress that this is put on their families? I am one of those people.

  • David Meyer-Lindenberg
    8 February 2017 at 11:11 am - Reply

    Sadly, I don’t know how many sex workers saw their livelihoods endangered when the adult section shut down, and I’m loath to make my readers stupider by pretending to have anything like an accurate estimate. So “some” it is.

    I’m sorry the political grandstanding hurt you. It was a moronic move all around. Here’s to hoping you bounce back soon.

  • In the News (#712) | The Honest Courtesan
    11 February 2017 at 5:01 am - Reply

    […] We have so many more vocal allies now than we did when I started blogging seven years ago! […]

  • Backpage and the Texas Tribune’s Tinfoil Hat
    17 February 2017 at 9:53 am - Reply

    […] hurt the voluntary sex workers who made up the vast majority of its user base, and even some prosecutors agree the move backfired and put real victims of sex trafficking at […]