Conspiracy of Silence

We have seen how Backpage had used litigation tactics by manipulating legal loops to keep from itself from facing the music.

Most courts had had no choice but to grant them temporary victories because of the unduly broad language of the Section 230 loophole.

But following the subpoena blitz we previously reported on, Portman and his colleagues on Capitol Hill had what they considered incontrovertible evidence in the way of Backpage’s own internal communication. (Indeed, much of this evidence was contained verbatim in the report’s 840-page appendix, which included highlights from the emails and other documents the site had been ordered to produce.)

The report outlined three major steps that would lead to Backpage’s doom. In the early days of the site, most ads for commercial sex were deleted outright. By early 2009, however, Ferrer personally had begun to instruct his employees to manually remove any obscene photos and “forbidden words,” then post the ad anyway. In an email, his ham-fisted attempt at self-justification was nothing short of transparent. He wrote that he considered this the more “consumer friendly” approach, because it would avoid “pissing off a lot of users who will migrate elsewhere.” But the true goal, as the Senate correctly understood, was to give those ads “a veneer of lawfulness.”

One former Backpage moderator, identified in the report as “Employee C”, testified that she saw her role as: “Putting lipstick on a pig, because when it came down to it, it was what the business was about.”

By late 2010, Backpage had developed an automated filter called “Strip Term From Ad”. It was tuned to remove problematic words (“lolita,” “rape,” “fresh,” “little girl”) before any human moderator had seen the ad. Because the original language wasn’t saved on Backpage’s servers, the Senate correctly argued, there would be no real record of the offending content—nothing to send to law enforcement. As the sub-committee explained: “Of course, the Strip Term From Ad filter changed nothing about the real age of the person being sold for sex or the real nature of the advertised transaction.”

Perhaps that’s why, in mid-2012, Backpage instituted a slapdash hybrid process, automatically editing some ads while automatically banning others, depending on the terms used. But the Senate immediately caught the bad faith on display here, too. Ferrer whined that the auto-bans were causing confusion among users; if they submitted an ad that contained a banned term, they had no way of knowing why it had been rejected. And so Backpage rolled out an alert feature, which informed users which specific term was to blame. However, the Senate correctly surmised by doing this Backpage was effectively “coaching its customers on how to post ‘clean’ ads for illegal transactions.”

The appendix of Portman’s report was full of smoking guns like this.

In late 2010, for instance, Backpage’s operations manager, Andrew Padilla, castigated one of his employees for putting a note on a user’s account suggesting she was a prostitute. Padilla shot back at the employee, writing: “Leaving notes on our site that imply that we’re aware of prostitution, or in any position to define it, is enough to lose your job over… If you need a definition of ‘prostitution,’ get a dictionary.”

The following summer, mere months after an ill-fated meeting with the head of The National Center for Missing and Exploited Children, Ernie Allen, Larkin cautioned Ferrer against drawing too much attention to Backpage’s so-called ‘moderation practices’.

In one particularly damning email he spells it out, practically giving away the game by flatly admitting: “We need to stay away from the very idea of ‘editing’ the posts, as you know.”

They knew full well what their were doing and attempted to keep it quiet because they understood that if the truth were exposed their culpability would at last be exposed.

Ironically, however — when all is said and done — it may well prove that this conspiracy of silence is precisely what will help seal Backpage’s fate. And Tony Ortega, Backpage Chief Propagandist, has remained silent since his former bosses have been indicted.

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