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Why the Senate’s Attack on Backpage Will Backfire

Shutting down Backpage deprives adult sex workers of a low-cost, safe and private way of advertising their services.

The businessmen who run the classifieds website received a serious verbal lashing from a Senate subcommittee on Tuesday. They were accused of committing a crime that every member of the committee eagerly denounced — profiting from the sexual exploitation of children. Backpage had already shut down its popular adult services section the day before, citing ongoing acts of “government censorship.”

It may be easy for lawmakers of both parties to agree that child sex trafficking should be condemned, but the hearing and the 20-month probe behind it drew plenty of controversy outside the Senate chamber. For a company accused of facilitating the exploitation of kids, Backpage saw a good number of organizations rush to its defense, including internet freedom groups, free speech advocates and libertarian think tanks.

After Backpage shut down its adult services section, anti-trafficking advocates lamented the loss of an avenue for locating missing children. Dr. Lois Lee, president of Children of the Night, a group that works to bring minors out of the sex trade and receives financial support from Backpage, said the company’s efforts to assist her organization were “totally unique.”

“Ads for Children of the Night and our 24/7 rescue hotline were featured prominently on Backpage, and became the highest source of our calls and increased the numbers of children coming to us for rescue,” Lee said. “This resource for children in need to easily find us has been extinguished.”

Backpage also provided adult sex workers with an affordable way to advertise their services. Now, sex work activists are scrambling to provide support for the most vulnerable among them, particularly low-income women and women of color, who just lost a low-cost option for finding work in the privacy and safety provided by a smartphone or computer screen.

Activist Monica Jones told Truthout that some former Backpage users may now look for clients on the streets, where they are much more likely to encounter violence and arrest. Jones said sex workers lose venues like Backpage “all the time” and will adjust, but in the meantime, people could be harmed, especially trans women and women of color.

“It’s going to take a while to adjust, but during that time a lot of people are going to be arrested,” said Jones, whose own high-profile story of arrest and harassment brought national attention to widespread police profiling of trans women of color.

In the face of lawsuits from trafficking victims as well as criminal probes, Backpage attorney Elizabeth McDougall has argued time and again that the company behind the website works with law enforcement and children’s advocates to catch and prosecute sex traffickers, and shutting down the website is not a solution to the problem.

Courts have sided with Backpage in every case, agreeing with McDougall that the First Amendment and a section of the Communications Decency Act protect the site from being legally responsible for the third parties who use it. On Monday, the day before the hearing, the Supreme Court declined to hear a case brought by three sex-trafficking victims who sued Backpage for allegedly making child sex trafficking easier, a charge Backpage denies.

The Senate committee, lead by Sen. Rob Portman and Sen. Claire McCaskill, attempted to shred Backpage’s defense. Sourcing from more than one million internal company documents, some of them more than a decade old and extracted by subpoenas that Backpage fought in court, the committee produced a staff report accusing Backpage of knowingly facilitating illegal acts of prostitution and child sex trafficking in order to profit off the sales of sex ads.

Despite the damning tone of the Senate report, it’s no secret that sex workers post ads on Backpage for erotic services that could be considered illegal in most states. The site’s founders, Michael Lacey and James Larkin, are the former owners of large alternative newspapers, such as the Village Voice. Ads for escorts, strip clubs and sex hotlines have appeared in the back of such papers for years.

The question hanging over Backpage is not whether some of its users are breaking the law; it’s whether the company is doing enough to ensure that the people in the ads are consenting adults and not victims of human trafficking, which involves coercion and is often incorrectly conflated with sex work.

McDougall has maintained that it is law enforcement’s job to stop sex trafficking, not Backpage’s, but the company has helped cops track down traffickers anyway, leading to glowing reviews from police departments across the country.

The Senate committee tells a different story. The report describes a system by which website moderators identified words that suggested minors could be involved in adult ads, such as “teen” or “Lolita,” and then scrubbed the words from the ads without removing the ads from the site. In 2012, this system apparently evolved, and users began receiving an error message when trying to post ads containing banned words.

The committee accused Backpage officials of “coaching” potential child sex traffickers in ad writing by alerting them to which words should be taken out. Sen. Portman said this proves that Backpage did not simply facilitate posts by third parties, but “took a hand in creating” ads for illegal activities posted on its site, attempting to poke a hole in the company’s defense against liability under the Communications Decency Act.

Portman and McCaskill grilled Lacey, Larkin and Backpage’s current head officers about this system of editing ads, but we won’t know their side of the story, at least not right away, because they invoked their right under First and Fifth Amendments and did not answer questions. In a press statement, the company said the committee’s probe “undermines efforts by to cooperate with law enforcement and provide information to identify, arrest and prosecute those who engage in human trafficking.”

Free speech advocates argue that ads for adult services are not presumptively illegal; even if they contain words like “innocent” and “school girl” that Backpage made efforts to keep off its site. The First Amendment may protect Backpage, but did the company do enough to ensure trafficking did not occur on its site?

The evidence in the report is at times contradictory. For instance, Backpage regularly reports suspicious ads to the National Center for Missing and Exploited Children (NCMEC) to assist the group’s efforts in tracking down missing kids, but the committee cited this as evidence that Backpage “knows” about the problem.

The report also cites this excerpt from an email written by Backpage Chief Operations Officer Andrew Padilla in a discussion on age verification with other company officials:

And even if an age verification was a deterrent to someone hoping to post an ad on Backpage to traffic a minor, it doesn’t mean they’re going to stop trying to traffic a minor. It only means they won’t be doing it on our site, where Backpage and NCMEC and law enforcement are in the best position to put an actual stop to the crime.

Rather than incriminating Backpage, this excerpt seems to lay out a basic argument for leaving the website alone. Even if the company’s anti-trafficking efforts were less than sincere — the company has wrangled with NCMEC over its policies for years — pressuring the company to shut down the website does not help, nor does it address the underlying problem. Traffickers will use other means, including websites that have no interest in editing ads or working with anti-trafficking groups, such as Children of the Night and NCMEC.

It’s unlikely that bringing Backpage before a Senate committee prevented sex traffickers from doing business, but it could have real impacts on consenting adults. Now that Backpage is shut down, sex workers have one less option for finding work. This may not matter for highly paid workers who can afford websites that charge heavy fees, but for those on the margins, it could mean returning to the streets.

Some anti-sex-work advocates seem to think that Backpage’s shutdown will mean fewer people working in the sex trade. Yet Jones dismissed the idea that sex workers should just find work in a different field, because sometimes sex work is their best option. She spoke of a hypothetical single mother struggling to pay bills. She may decide that sex work is her best option for making money she needs right away because it’s a job with flexible hours and a high per-hour pay rate.

“Someone might engage in sex work because it gives them the income they need to survive,” Jones said.

Congress could be working to alleviate conditions like poverty that leave single mothers in a pinch and motivate young teenagers to run away from home, where they could fall into the hands of sex traffickers or simply decide to sell sex of their own volition in order to survive. Unfortunately, initiatives, such as raising the minimum wage and providing more funding for mental health care and public schools in poor neighborhoods, are not top items on the current agenda.

If the Senate’s Backpage probe proves anything, it’s that lawmakers continue to understand sex work as a simple crime and not a job that people do for a variety of reasons. Sex work advocates argue that criminalization is what drives segments of the industry into the shadows and makes it difficult to enforce standards that can prevent trafficking and other labor abuses in the first place.

Kristen DiAngelo, an organizer with the Sex Workers Outreach Project, said that if politicians are serious about stopping sex trafficking, they should decriminalize sex work, as human rights groups and even United Nations officials now recommend. When police hunt down prostitutes, sex trafficking victims are bound to be harmed and end up in handcuffs as well.

“It is easier for them to grandstand than actually do the work,” DiAngelo said of politicians in Washington. “All of this simply speaks to the need for a revamping of our government and law enforcement agencies. They are no longer listening to the people or concerned that their actions are harming us.”

Instead, Portman and McCaskill are patting each other on their bipartisan backs for supporting a cause that almost no one can disagree with, apparently unaware of how their actions may impact the lives of those living in the shadows of poverty and criminalization.

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