Backpage: Subpoena Blitz

It’s no secret Michael Lacey and James Larkin built on the backs of (let’s be generous here) ‘questionable’ motives and a couple of key legal loopholes.

With Section 230 as their weapon, they pushed their way into the court system. At first it seemed the side of law and decency was losing after the slimy Backpage duo won an early series of civil suits, successfully challenging anti-Backpage laws in New Jersey, Tennessee, and Washington State.

But many of the court opinions in granting them their temporary victories noted problems inherent in their judgments. As one Tennessee judge wrote: “[The court] may not use a butcher knife on a problem that requires a scalpel to fix.”

By this point the nation’s attorneys general had had enough. In their view, Backpage and other copycat platforms were clearly exploiting loopholes to evade justice. They were using Section 230 as an excuse to duck their responsibilities to users and cheat the system.

Then in July 2013, 49 attorney generals signed a letter to Congress saying that the law needed an overhaul. And it would change everything.

State attorneys general weren’t the only prosecutors itching to get in on the action. The Feds were too, but they had a problem: They couldn’t identify a viable federal crime. Prostitution wasn’t a technically an offense at the federal level as it is charged under state law. As such they didn’t seem to think they could make sex-trafficking charges stick.

Indeed, back in 2011, the Justice Department had quietly opened a grand jury investigation into Backpage in Washington State; according to an internal memo, prosecutors interviewed more than a dozen witnesses and subpoenaed more than 100,000 documents but ultimately decided that “a successful criminal prosecution of Backpage is unlikely.”

It felt vaguely reminiscent of the federal case against Al Capone, who famously avoided prosecution for his mob related crimes. It wasn’t until authorities pursued the kingpin for tax evasion that he would be ultimately sent away for 11 years in a federal penitentiary.

Perhaps it was with this thought in mind that authorities investigating the Backpage ‘crime family’ decided to change tactics. They proposed making their case under the Travel Act but, as they noted, that theory “had never been litigated in a similar context.” So they formulated another potential plan to bring down the infamous sex ring mob. The Justice Department wrote: “Moving forward [we] should take a hard look at bringing this case as a civil forfeiture case, with its lower standard of proof.”

Under this scenario, the government could seize a website operator’s assets and property, then place the burden of proof where it properly belonged, on Lacey and Larkin to convince a jury they weren’t implicated in the full spectrum of criminal activity it was only too clear they were engaged in.

And just like a mob case, they started low down the chain with the copycat knock-offs and began ‘rolling them up’ one by one.

In June 2014 the Justice Department seized myRedBook and demanded that the site’s owner, Eric “Red” Omuro, forfeit $5 million in cash and property. The following summer, the Department of Homeland Security launched a similar raid against “the nation’s largest online male-escort service,” Rentboy, and its owner, Jeffrey Hurant. Both men pleaded guilty to violations of the Travel Act in exchange for lighter sentences and lesser fines. The forfeiture approach seemed to be working.

Meanwhile, investigators and anti-child-sex-trafficking advocates began making their case against Backpage on Capitol Hill.

In April 2015, Senator Rob Portman, a Republican from Ohio and the chair of the Permanent Subcommittee on Investigations, fired off the following tweet: “[B]ackpage essentially sells human beings. It’s horrible, and I’m going after them.”

Portman’s subcommittee quickly issued a blitz of subpoenas, seeking internal documents that would reveal the sham of Backpage’s ‘self moderation’ practices. The site fought back, but in September 2016 the US Supreme Court ruled that it had to fork over more than 1  million internal emails and other records. Every duplicitous decision, every bit of shameless commentary, every confession of illegality between Backpage employees and managers, was about to come spilling out.

The question remains: why aren’t the Feds interrogating Tony Ortega for his complicity in supporting, promoting and running a propaganda campaign in defense of Backpage?

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