Last week's raid by federal agents on the Manhattan offices of Rentboy, a website that facilitated ads from male escorts promoting themselves and their services, has raised howls of protest not only from LGBT activists but many others as well. The New York Times weighed in with an editorial that pointedly asked "whether continuing to spend time and money turning the website's operators into felons is worthwhile, while far more serious crimes, including human trafficking and sexual exploitation, go unpunished."
Others, including such "sex-positive" observers as Daniel Nardicio, a longtime producer of popular underwear parties in New York and on Fire Island, have pointed out that law enforcement agencies are obligated to enforce existing laws, regardless of whether one agrees with them or not. "The activists, bloggers, organizations and those screaming on social media about what happened to Rentboy would do better to ask themselves why they haven't been advocating for legalization before this," Nardicio complained.
Despite these widespread accusation of homophobia, Ari Ezra Waldman, a lawyer, professor at New York Law School and an advocate for the LGBT community, doesn't believe Rentboy was targeted because it was a site that catered specifically to gay men.
"There is a broader question as to why this particular website was targeted," Waldman told me in an interview. "But that said, the question of whether legal or not is irrelevant. There was illegal conduct. Maybe they shouldn't have conducted the raid, but that's not to say it's anti-gay. It's more than likely not."
After all, a site offering similar services to female escorts in California, MyRedBook, was also shut down by the feds despite, like Rentboy, having been operating in the open for years. In May, 53-year-old Ed Omuro was sentenced to 13 months in federal prison for operating the site.
But the Rentboy raid raises legal questions that go beyond whether prostitution should be considered a crime.
For starters, why was the raid conducted under the auspices of Kelly T. Currie, acting US attorney for the Eastern District of New York, in Brooklyn, rather than the Southern District, which covers Manhattan? And why did the Department of Homeland Security (DHS) apparently initiate the investigation?
The criminal complaint against Rentboy maintained that because some of the escorts worked in Brooklyn, there was justification for filing there. "A website based in New York running off an IP address that does business across state lines can be the basis for federal prosecution anywhere," explains Jason Bonk, a litigator in the New York office of law firm Cozen O'Connor. "If you're operating on the internet over a broad customer base, you're expanding the prosecutorial possibilities. We're living in a virtual world. DHS could have gone into any prosecutor's office. It had to end up somewhere."
Dallas defense attorney Paul Saputo cites the prosecution of Silk Road as a precedent. "The defendant was in San Francisco, but the case was filed in Manhattan because of greater resources to prosecute cyber crime related to finances." Site owner Ross William Ulbricht was sentenced to life in prison in May.
That doesn't answer widespread speculation about why the Southern District, where some of the most high-profile criminal cases in the country are litigated, would have declined to take the lead in the Rentboy case. Its chief prosecutor, US Attorney Preet Bharara, has become famous for his vigorous prosecution of extremely complicated white-collar crime.
There definitely are Silk Road-type precedents here. For example, in April, Bharara took on the former leader in the New York State Senate for allegedly taking kickbacks, which would have occurred on suburban Long Island—inside the Eastern District, not his own.
Saputo speculated that it's precisely because Bharara knows what the media glare brings with it that his office stayed away. "The Southern District may have anticipated that the shit would hit the fan and didn't want to be involved for that reason."
Arthur Leonard, another professor at New York Law School whose blog closely follows legal issues of interest to the LGBT community, agrees. Brooklyn's previous US attorney, Loretta Lynch, moved to DC to take over the Department of Justice, so "Brooklyn has an acting attorney looking to make for herself." If that's true, he adds, the move has backfired, "creating an uproar among politically-active gay people."
Pushback has already moved beyond editorial pages and social media comments into the street. On Thursday, a small but noisy crowd gathered in front of Currie's office. Although dominated by veteran LGBT activists, they were calling for the decriminalization of all sex work as well dropping the Rentboy charges.
But why was this a homeland security investigation?
The criminal complaint against Rentboy begins with DHS Special Agent Susan Ruiz explaining her field of expertise. She has, she testifies, "participated in numerous investigations involving crimes related to violations of immigration laws," including "petitions and applications submitted by individuals seeking immigration benefits."
Having scoured the complaint, Leonard thinks DHS was first made aware of Rentboy as a result of the company applying for a special employment visa that used language making it clear what the site was all about. "After 9/11, visa applications were put under DHS as part of their mandate," Leonard noted. "They screen all work-related visas. I suspect that's what activated this after 17 years in business."
DHS appeared to reinforce this in a statement provided to VICE that specifically referenced Immigration and Customs Enforcement. The statement went on to cite "the federal Travel Act, which forbids interstate or foreign travel for the purpose of criminal acts" (emphasis mine).
In response to complaints from the Times and many others that DHS resources would be better spent pursuing potential terrorists and sex traffickers (the latter is not included in the Rentboy complaint), Bonk pointed out that selective enforcement could lead to a slippery slope.
"If it's a case of corporate espionage, DHS, FBI—any agency—can become involved," Bonk said. "Illegality, no matter what form, once there's a visa application, DHS can and should get involved."
"You have to be careful about that," Leonard added. "There are all different kinds of sex work. This is different from exploiting gay runaways or sex trafficking. Rentboy was careful; it had a screening process. But it's still illegal."
Imagine the outcry if DHS ignored incidents of hacking or harassment, Waldman noted. Still, he added, "I can't help but questioning the allocation of resources for this site."
Steve Weinstein is a journalist and editor in New York City who has written for the Wall Street Journal, Entrepreneur, Out, CNBC, New York Magazine, the Village Voice and the International Herald Tribune. He was an editor at the Bridgehampton Sun, the New York Blade, Crain's New York Business, Edge Media Network and also publisher of the New York Press. He is the author of The Q Guide to Fire Island (Alyson, 2007).