Backpage CEO arrested on pimping charges — but they probably won't stick

Texas authorities on Thursday arrested the CEO of Backpage.com, the classified ad website that’s become increasingly synonymous with the online sex trafficking industry, and raided the company’s headquarters in Dallas.

Carl Ferrer, 55, was taken into custody when he stepped off his flight from Amsterdam in Houston and slapped with felony charges of pimping a minor, pimping, and conspiracy to commit pimping. California and Texas’ attorneys general had led a joint investigation into the operations of Backpage.com and put a warrant out for Ferrer’s arrest.

Backpage has come under scrutiny because of its alleged complicity in underage sex trafficking, allowing its users to write posts advertising escort services that often feature nearly nude pictures or videos. The National Center for Missing and Exploited Children saysthat “most child sex trafficking today is facilitated by online classified advertising websites.”

Running sex ads is a lucrative business. According to a statement from the California District Attorney’s Office, Backpage’s internal revenue reports showed that from January 2013 to March 2015, 99 percent of the company’s global income “was directly attributable to the ‘adult’ section.”

Ferrer is being held for extradition to California. Arrest warrants have also been issued for Michael Lacey and James Larkin, the founders of the company, on charges of conspiring to commit pimping.

If convicted, Ferrer could get up to 22 years in prison. Larkin and Lacey may get up to six years each, based on similar cases.

But while champions of this cause may be cheering at these arrests, the reality is that prosecutors could have a hard time proving Ferrer’s culpability or complicity.

The law that would in theory protect Ferrer and his cohorts from prosecution was initially designed to cleanse the internet of pornography and any other material that might be deemed obscene.

President Bill Clinton introduced the Communications Decency Act — sometimes referred to as the “Great Internet Sex Panic of 1995” — to regulate obscenity in cyberspace. It faced significant legal hurdles, with free speech advocates contending that it violated internet users’ constitutional rights, and in the end, all that was left of the Communications Decency Act was Article 230 — Say, for example, some internet user posts a pornographic image on Facebook, or Reddit, or Twitter. Article 230 protects those websites from being liable for the offensive image.

That’s why Article 230 is often held up as the reason the internet is a place where you’re never more than two clicks away from obscene content.

Backpage has been named as a defendant in at least seven separate lawsuits. They have also successfully challenged efforts by the states of Washington, New Jersey, and Tennessee to enact laws that would limit legal impunity for businesses allegedly involved in child prostitution.

In August, a judge from the U.S. Court of Appeals for the 1st Circuit ruled in Backpage’s favor in a case against three young women who sued the site for running prostitution ads featuring their photos. Their claim was based on the Trafficking Victims Protection Reauthorization Act, which applies to anyone who “knowingly benefits, financially or by receiving anything of value” from human trafficking.

Backpage doesn’t require ad posters to include legitimate phone numbers and systemically scrubs photos of metadata, which the law enforcement community says makes it very difficult for investigators to connect the dots between ads and traffickers. The plaintiffs alleged that Backpage’s “lack of controls on the display of phone numbers, the option to anonymize mail addresses, the stripping of metadata from photos uploaded to the website… and Backpage’s acceptance of anonymous payments” made them complicit in running what California’s attorney general described as the internet’s “top online brothel.”

The court’s response to those claims was that those features of Backpage.com were “part and parcel of the overall design and operation of the website.” Such stylistic choices are also protected by Section 230.