Four weeks ago, a website sued a sheriff.
The website is Backpage.com, a classifieds site in the style of Craigslist, where sex workers are known to place ads for their services. The sheriff is Thomas J. Dart, a man who has devoted a nontrivial amount of time and taxpayers’ money to combat classifieds sites, which he believes are responsible for the sexual trafficking of minors.
In June, Dart — acting in his official capacity as sheriff of Cook County, Illinois — wrote the credit card companies Visa and Mastercard, asking them to “immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com, which we have objectively found to promote prostitution and facilitate online sex trafficking.”
The credit card companies complied within 48 hours, leaving Backpage with the cryptocurrency Bitcoin as its sole payment option for those seeking to place ads on its site.
“[MasterCard and Visa] should be roundly commended for their actions, and we stand firmly with them in what they’re doing,” Dart said in response to the actions of the credit card companies. “We realize the battle ahead is still going to proceed, that we realize that Backpage is probably not going to go away, but what we can tell you is that for all the different women, children and men, to some extent too, who have been exploited by these sites, it is going to be increasingly more difficult for those events to occur again.”
Initially, Backpage issued no comment, but a few days later, it sent a message to users informing them that they would allow ads to be placed for free with the use of the promotional code FREESPEECH. Eventually, the site removed the need for users to enter a code altogether, effectively making use of the site free for everyone. And then, on July 21, Backpage filed a lawsuit against Cook County Sheriff Tom Dart.
The resulting face-off is only the latest in a protracted war between the American criminal justice system and online service providers. While this battle has often been framed as a debate about how to best address the sale of sexual services online, its implications extend far beyond the commercial sex industry. In order to understand the scope of the issues at stake, we need to go back — back before Backpage and even Craigslist — to the place where our greatest fears involving minors, sex, and the new medium of the internet first came together in the nation’s collective consciousness.
DANGERS OF THE DIGITAL
A landmark case for service providers unfolded in 2006, when a judge ruled that MySpace was not responsible for an assault suffered by one of its users at the hands of another. In his ruling, Judge Sam Sparks cited the 1996 Communications Decency Act, which, in Section 230, provides protection to online service providers for content that users post using their services.
Despite the outcome of this case, the issue of online service providers’ liability remained a hot topic. As internet access became increasingly available, more people got on the web, and crimes that would otherwise have unfolded in meatspace began originating online. These cases, along with the 2004 Dateline show To Catch A Predator, destroyed the sense of security provided by the walls of the American home, awaking the fear of stranger danger.
In October of 2006, Wired ran a story about sex offenders on the then-popular social network MySpace. The author of the piece, Kevin Poulsen, had written a simple bit of code that scraped the Sex Offender Registry and ran the results against the profiles of members of MySpace. Poulsen’s analysis of a third of the data revealed that 744 sex offenders had MySpace profiles, and 67 percent of them were on record as having committed crimes against children. The story fueled the growing panic that sexual predators had found a way to access children remotely.
This dovetailed nicely with a campaign against MySpace that Connecticut Attorney General Richard Blumenthal had launched earlier that same year against the social network for its failure to protect minors from adult content, giving him all the ammunition he needed to go after the social network.
Despite the precedent set by the case against MySpace earlier that year, Blumenthal managed to exact some concessions from the social network, garnering him praise as a defender of children’s safety. Shortly after, the attorney general moved on to Facebook, an effort in which he was joined by an equally committed Andrew Cuomo, then attorney general for New York.
Faced with pressure from Blumenthal and an investigation by Cuomo, Facebook also came to an agreement with the attorneys general. The result was widely seen as a victory, and soon Blumenthal was leading the charge to force all social networks to police adult content and establish age and identity verification tools. These efforts resulted in the creation of a task force of more than 20 companies, including Facebook, Google, Microsoft and Yahoo, in collaboration with the National Center for Missing and Exploited Children.
In time, the task force would discover that the threat against children posed by adults doing adult things online was not as grave as had initially appeared. In a 2009 report, the Harvard University-led task force of online service providers concluded that the greatest threat to children online was bullying by other children, not being propositioned by adults. Additionally, the report dismissed the usefulness of age-verification technologies in preventing the sexual solicitation of minors.
Blumenthal slammed the findings, but by then, he had moved on to a different target: the classified ads site Craigslist. Craigslist at the time had a section where individuals could advertise adult entertainment services. Blumenthal took issue with the section for containing sexually explicit photographs as well as advertising commercial sex. Applying the same level of pressure he and other attorneys general had used to strong-arm MySpace and Facebook, Blumenthal was able to broker an agreement with the site. As part of that agreement, Craigslist began charging for ads in its erotic services section at the end of 2008.
“Requiring phone numbers, credit cards and identifying details will provide a roadmap to prostitutes and sex traffickers — so we can track them down and lock them up,” Blumenthal said in a statement, applauding Craigslist’s cooperation.
The change reduced the volume of ads posted to the section by 80 percent and brought accolades for the attorney general from the public as well as from advocacy groups. This decrease in postings, however, did not last long. And despite the site’s continued cooperation with law enforcement — which assisted the investigation of the 2009 Craigslist killer — Blumenthal renewed his interest in the classifieds site, calling the erotic services section an “online brothel” and “hooker haven,” and asserting there was a link between adult entertainment and “human trafficking, drug activity and child exploitation.”
By the following year, Blumenthal’s public statements about Craigslist had strongly begun to insinuate that the reason that Craigslist was refusing to implement additional measures to prevent sex worker ads and adult content was that these were so profitable for the site. The fact that it had been the attorneys general who had pushed for Craigslist to require payments for ads in the erotic services section disappeared from the conversation. (Interestingly, though the former attorney general’s office generated voluminous quantities of press releases on the subject of the dangers of the internet, an overview of these turned up no announcements related to the agreement that Blumenthal brokered with Craigslist to force it to begin charging for erotic service ads. Only a single press release — five months after the agreement was made, and mostly about the classifieds site’s failure to do away with “prostitution advertisements and pornography” — mentions the agreement.)
Come September, mounting public pressure led Craigslist to voluntarily shut down the section completely. It was a coup for Blumenthal.
Backpage was next.
THE POLITICAL OPPORTUNITY OF FEAR
When Blumenthal turned his sights on Backpage, the classifieds site was owned by Village Voice Media, parent company of legendary weeklies the Village Voice and the L.A. Weekly, as well as 15 other free alternative papers across the United States. It was very different than the companies Blumenthal had targeted up to this point: Village Voice Media was not a company operating in a new space that caused a certain degree of dread in the American population. It was a company in a known and respected space — and one that did not have to fight for its right to exist.
It would prove to be a much more difficult task than the attorneys general anticipated.
“Backpage.com is disappointed that the [attorneys general] have determined to shift blame from criminal predators to a legal business operator in an apparent attempt to capitalize on political opportunity during the election season,” read a blog post that appeared on the classifieds site shortly after Blumenthal called on Backpage to remove its adult ads. “Censorship will not create public safety nor will it rid the world of exploitation.”
The post was not wrong in its insinuation about the political usefulness of the crusade — two months after it was posted, Blumenthal leveraged his successes as attorney general of Connecticut into the Senate. New York Attorney General Andrew Cuomo, who had gone after Facebook after Blumenthal declared war on social networks for their failure to deny access to sex offenders, was elected governor at the close of that same election season.
The champions moved up the political ladder, and the baton was eagerly taken by Washington state’s attorney general Rob McKenna, who ended up on the losing end of a 2012 lawsuit against Backpage, and subsequently failed to win his state’s gubernatorial election.
The fight was not even close to being over.
THE MAN NAMED DART
Cook County Sheriff Tom Dart is a man of grand gestures. In 2009, he was made one of Time magazine’s people of the year for refusing to enforce evictions. The depiction of people’s hero suited him: Dart has never been a cop, even though under the mentorship of his tough-on-crime predecessor Dart framed his platform on similar terms.
Dart is described in the media as a man who refuses to bow to the establishment and who is candid to the point of recklessness. While it is true that he speaks plainly, he should not be dismissed as someone lacking political interest, or acumen. Indeed, the fact that he refuses to play nice with those in power has less to do with being anti-establishment than it does with a knack for political positioning. A favorite quip of his — that he hasn’t spoken to Chicago’s mayor, Rham Emanuel, or the police superintendent for four years — is a powerful way to underscore that any victories he can claim are his alone. This is critical, as Dart’s sights are set on the position Emanuel currently occupies — a position that might have been Dart’s in 2011, if Emanuel had not swept back into town and forced him to drop out of the race.
Dart’s recent trajectory truly began in 2002, after he suffered a crushing defeat in the Illinois race for state treasurer. This was a transition the former prosecutor was eager to make from his role as a state representative, where he had been ever since leapfrogging into a vacancy left by Jeremiah Joyce in the 1990s. Being a state representative had not suited him: he’s very open about the fact that he doesn’t like having to introduce bills, run things by other members of his party, or work closely with others to ensure their support of his initiatives.
Losing the treasury race 2002 marked an unprecedented low: Dart was the only Democrat to lose to a Republican in that election. But Dart recovered quickly enough when then-sheriff Michael Sheahan threw open the doors of the Cook County Sheriff’s Office, creating the position of chief of staff for Dart. Though Dart has done much to distance himself from his predecessor over the years, it was Sheahan who, upon announcing his retirement in 2005, pushed for Democratic party bosses to support Dart as the replacement candidate. At the time, Dart’s platform was founded on championing corrections and law enforcement causes, but even that wasn’t enough to muster the necessary support. Sheahan’s backing had been crucial.
But equally crucial was the need to distance himself from his old ally once his support was no longer necessary: the old sheriff had been denounced for massively expanding his budget (from $169 million to $392 million) and tolerating the abuse by deputies that would result in numerous brutality lawsuits. These stains on the office were incompatible with Dart’s ambitions to rise to an executive office. If he was going to get anywhere, he had to differentiate himself and find a way to make himself not only visible, but well-known.
The first order of business was to change the perceptions of the Cook County Jail. The second required a crusade.
Many have wondered why Dart went after Craigslist, a tiny California company, rather than theChicago Reader, an alt weekly in Dart’s own backyard that also ran sex work ads. The answer is that this is more about the internet than it has ever been about the sex. The Reader still has a decent circulation as far as weeklies go — and it had been even better in 2009 — but by making the placement of free ads possible, Craigslist was decimating the Reader. The Reader just wasn’t big enough. Besides, you don’t go pissing on friendly journalists’ livelihoods so early in the game if you can avoid it, especially if you expect their readers to consider your future candidacies.
Ultimately, Dart chose to go after the classifieds site for the same two reasons Blumenthal had gone after MySpace, Facebook and Craigslist. The first is that Craigslist represented the disruption unleashed by the internet, not only of established business models, but of society itself, which made it easy to fear. The second is that, by virtue of being a relatively new thing using a relatively new technology, going after Craigslist was easy.
A WAR ON TWO FRONTS
At the same time that Blumenthal and other attorneys general were working to broker an agreement with Craigslist regarding its erotic services section, Dart began conducting his own investigation of the site. By his estimation, the Cook County Sheriff’s Office committed 3,120 man hours and over $100,000 to investigate the classifieds site during this time.
Despite Craigslist’s very public compliance with the attorneys general, in the spring of 2009 Dart bypassed the Illinois State Attorney and filed a suit against the site through a private firm. In the suit, Dart alleged that Craigslist was a public nuisance because it facilitated prostitution. He sought compensation for all expenses generated by his office in policing it, as well as an injunction requiring Craigslist to stop hosting erotic service ads.
It bears noting that during his investigation, over 150 individuals were arrested. Without charges, it is difficult to determine what role they had played, but it’s highly likely that the overwhelming majority were sex workers. Though Dart has drummed up support from anti-trafficking organizations in recent years for focusing on traffickers and buyers of sex, the Craigslist lawsuit only mentions the possibility of coerced sex work in passing. Mostly, the outrage centered on the fact that sex workers were using the site.
At the time that Dart was making arrests through this investigation of Craigslist, Illinois was still prosecuting minors for prostitution. That is, individuals deemed incapable of consenting to sex in the first place were criminalized for engaging in commercial sex. Though the Illinois Trafficking of Persons and Involuntary Servitude Act took effect the year Dart became sheriff, it has been reported that by 2012, this law on involuntary servitude had only been usedagainst a total of 29 defendants.
Moreover, before felony conviction was finally taken off the table in 2013, Illinois was known as the state with the harshest prostitution laws in the country. An individual simply had to have a previous prostitution conviction on record for a subsequent prostitution charge to be upgraded to a felony. These felony convictions placed those charged with prostitution into a situation where finding any other work became impossible, effectively locking them into the informal economy of sex work and, as a result, an inescapable cycle of recidivism.
Between 2008 and 2011, law enforcement heavily focused on sex workers rather than buyers of sex or traffickers, with sex workers representing 97 percent of convictions, an increase from 68 percent.
It was in the middle of this window that Dart went after Craigslist — a battle that unfortunately for the sheriff, began with a public defeat. In October of 2009, the Northern District of Illinois Federal Court dismissed the lawsuit, holding that Craigslist, as a service provider, was immune from wrongs committed by users under Section 230 of the Communications Decency Act.
THE REVERSAL IN TRENDS
In mid-2010, Illinois finally stopped prosecuting minors for prostitution. The next year, it became one of eight states that allows courts to vacate the convictions of people coerced into sex work (New York had been the first through the advocacy of the Sex Workers Project). Also in 2011, the State Attorney’s Office kicked off the WINGS Project, a treatment court for women facing felony prostitution charges.
Treatment courts like WINGS (which stands for Women in Need of Gender Specific Services) involve a designated judge and a team of state attorney assistants, public defenders, probation officers and case managers with training in issues around the crimes the court is trying to address. The role of those working in treatment courts is to refer defendants to treatment and help them access community services in the hopes of addressing the underlying causes of criminal behavior.
Like many well-intended efforts that fail to grasp the full scope of a problem, in addition to requiring that defendants plead guilty in order to access services, WINGS ignored completely the existence of male sex workers. (Cook County Department of Corrections implemented a gender self-identification policy a few months after WINGS was set up; despite a rocky policy adoption, by 2012, transgender women were reported as having access to the treatment court).
Eight months into the first year, WINGS’ case workers exceeded their caseload capacity, and an overflow court called Feathers was created. In 2012, a report by the Chicago Coalition of the Homeless noted that Feathers lacked the intensive case management of WINGS, and there were fewer resources such as inpatient treatment and housing options available.
For women with misdemeanor prostitution charges, there was the option of diversion programs, such as Footprints and Pillars. These also required a plea before services were made available, but prosecution was deferred. If the program was completed and the defendant paid the related fines and complied with social services requirements, the charges were dropped. If not, the defendant was prosecuted.
It should be noted that, on average, many of these programs are 120 days long — and that does not take into account the length of time that a defendant may be put under supervision, pending the decision to drop charges, or intensive probation. What often results is an unnecessary burden on the most economically vulnerable defendants, who may not be able to access transportation, long-term housing, childcare, or the economic stability that committing to a program requires. In addition, programs created to help marginalized populations frequently ignore the problem of structural inequality and potential for institutional violence.
A survey by the Young Women’s Empowerment Project found that among the causes of trauma experienced by youth in the sex trade and street economies, healthcare providers ranked second (28 percent) only to police (30 percent) as perpetrators. Comparatively, pimps were reported to comprise four percent of the abuse experienced — a figure slightly lower than abuse experienced through the Illinois Department of Children and Family Services.
It would not be until mid-2015, when the Prostitution and Trafficking Intervention Court opened its doors, that male sex workers would be given access to the services offered. This court is also different in that for those who qualify, prosecution is deferred, with charges dismissed at the completion of a program. Unfortunately, it also differs from WINGS in another way: connecting sex workers with services is handled by Footprints, so those going through the program don’t have specialized case workers and the problem of woefully limited resources that haunted Feathers remains.
Nevertheless, the creation of WINGS in 2011 would mark the start of a reversal for the punitive state — a trend that was given momentum by the incoming board president of Cook County, Toni Preckwinkle, who sees the criminalization of low-level, nonviolent offenses and the automatic transfer of juveniles to adult court as an undeniable product of structural racism. (She’s not wrong; a 2012 study conducted in Cook County revealed that sentences are doled out on a racial basis, with black defendants being at least 30 percent more likely to be sent to prison than white defendants charged with the same crime.)
“I would prefer to see jail cells reserved for people charged with violent offenses,” Preckwinkle said at the time. “Instead of detaining women charged with prostitution, we could spend that money providing services to help them and their children.”
Her position continues to resonate, years later.
This reversal did not catch the sheriff unawares. By 2011, he had already begun to formalize his relationship with Hunt Alternatives — an organization founded by the heiress and philanthropist Swanee Hunt — and its program Demand Abolition, which emphasizes the need to criminalize buyers of sex as a means of eradicating sexual exploitation.
That fall, Dart undertook the first annual National Day of Johns Arrests, a campaign of stings targeting those who purchase sexual services. It’s important to note that while such “reverse sting” operations focus on buyers, selling sexual services in Cook County has not been decriminalized. End Demand is unambiguous in its position that those who willingly provide sexual services are as much a part of the problem as those who buy sex, as they collaborate to create the environment that makes sexual exploitation possible by normalizing the sale and purchase of sex.
“While it is generally agreed that the most egregious crimes are sexual slavery and human trafficking, prostitution is also harmful and should be eliminated,” reads End Demand’s National Action Plan for Eliminating Sex Trafficking.
As a result, individuals caught selling sex were — and are — still entered into the system. More troubling still, research by the Social Science Research Center at DePaul University suggests that in Chicago, at least 10 percent of those arrested as johns during this time were, in fact, transgender women, most likely sex workers, rather than buyers of sex.
Despite these issues, the new approach has been applauded, and Dart has continued to rise in prominence as champion for victims of trafficking on these merits. Since he concentrated his efforts on sex work, Dart has participated in a number of documentaries, including one by Nicholas Kristof, the paternalistic columnist who launched the now-disgraced Somaly Mam, and the MSNBC documentary Sex Slaves: The Windy City, which has the dubious distinction of blurring out the faces of nearly everyone involved in the bust of sex workers, except the sex workers themselves.
THE FIGHT THAT ENSUED
When MasterCard and Visa cut Backpage off, Dart was elated. He bragged that the strategy to target its financial support structure had come as a stroke of genius after all other avenues had been explored, saying, “we tried the lawsuit angle and that did not work, we tried ongoing negotiation with Backpage about making this a responsible site that was not facilitating crimes — that got us absolutely nowhere.” He didn’t mention then that legislation (in Washington, Tennessee, and New Jersey) has also been attempted against the site — and been struck down by courts.
In its suit, Backpage is arguing that it’s precisely this strategy that is the problem: Dart knew that suing and lawmaking would achieve nothing, so instead, he used his power as an elected official to intimidate payment companies into abandoning the classifieds site. Backpage cites Bantam Books, Inc. v. Sullivan, in which the Supreme Court held that informal but coercive notices and intimidation via police presence leveled at publishers was tantamount to censorship in violation of the First Amendment.
Dart says his office did not threaten Visa and MasterCard, but rather, that he simply asked for their cooperation. However, his letter — which was sent on Cook County Sheriff’s Office letterhead and used language like “immediately cease and desist” and talked of financial institutions’ “legal duty” — may easily be construed as more than an appeal for assistance.
On July 28, less than a week after the lawsuit was filed, U.S. District Judge John Tharp Jr. granted Backpage a temporary restraining order against Dart. The judge agreed Backpage has a better than negligible chance of proving that Dart’s letter to the credit card companies constitutes a threat and that Visa and MasterCard did not cease their business relationship with Backpage voluntarily.
“These companies had worked with Backpage for more than a decade, and they terminated their relationships because of Dart’s letters,” the judge wrote.
In addition to writing MasterCard and Visa, it appears that Dart had also contacted the Chief Postal Inspector, asking him to “use all available means” to prevent checks from being sent to Backpage in the mail. The complete attack on Backpage’s financial structure did not sit well with the judge, who disagreed with Dart that his efforts did not violate the First Amendment rights of Backpage users.
“Backpage cannot collect its normal fees for even the most benign advertisements, and therefore will be unable to host any once the money runs out,” Tharp wrote. “Given that Dart sought to ‘defund’ Backpage, not just shut down its adult sections, based wholly on the content of some ads, Dart cannot maintain that the First Amendment is not implicated by his actions, even if he were correct that none of Backpage’s ‘escort ads’ themselves are protected [by the First Amendment, which does not protect offers to engage in crime].”
The judge agreed that Backpage was denied adequate remedy through the courts, that it will suffer irreparable harm as a company as a result of this denial, and that it has a likelihood of success in court, based on the case’s merits. A preliminary injunction hearing to make the restraining order against Dart permanent is set for August 20.
THE COST TO COOK COUNTY
“We have no naive notion that we’ll end prostitution, end trafficking, end exploitation of children,” Sheriff Dart has said in regard to going after Backpage. “What we’ve wanted all along is to make it more difficult and make [traffickers] easier to catch.”
It seems strange, then, that in the first act of the Backpage suit, Dart would argue that his actions are serving the public interest not because he is addressing what he believes to be a root cause of sex trafficking, but because Backpage has been forced to make posting ads on its site free for users now that the credit cards have cut ties with the site. That means that now, anyone can post ads anywhere on Backpage — including the adult section of the site — without leaving a financial trail.
This refutes the assertion that what Dart wants is to make it more difficult for traffickers and make them easier to catch, exposing the political aims of the crusade. It’s an affront to Illinois taxpayers, who are funding Dart’s $462.5 million budget — the biggest for an officeholder in the entire cash-strapped county — with the expectation that this money will address some of the problems that continue to plague his office and the jail.
While Dart has made some progress in changing the reputation of Cook County Jail, the list of issues that remain are many and varied: a failed staffing plan that drained an additional $36 million from the county last year to cover overtime, an exploding jail population, an antiquated records system that makes it impossible to keep track of people the Sheriff’s Office is charged with, among others.
In February, the jail had to be put on lockdown when a third of the staff reported sick. Unplanned leave consistently plagues the office, with little done to rectify the underlying cause of the situation. More hires have been made necessary by it, as well as the sheriff’s decision to patrol other jurisdictions (apparently without knowledge of their police departments), and by a jail population that rose from 8,600 in 2011 to 9,943 in 2013.
Most of the people in the jail, it should be noted, have not yet been convicted of a crime, but are in custody because they cannot afford bail. A number of them will be in custody for no reason: research of some 1.4 million cases in Cook County between 2006 and 2012 showed that eight out of 10 misdemeanor cases ended up being dismissed. That rate is among the highest in the nation, according to the U.S. Bureau of Statistics. It costs Cook County $143 to keep a defendant in jail overnight — and it may end up costing more, given the class action suit filed by detainees whose charges were eventually dismissed.
By the end of 2013, the situation was so desperate at the jail that Cook County Board President Toni Preckwinkle was forced to intervene. Her demands that Dart decrease the jail population were met with such an elaborate charade of finger-pointing that Preckwinkle was forced to turn to the Illinois Supreme Court to sort things out. In 2014, a ruling finally forced compliance with a plan that has decreased the jail population to 8,000. But despite the modest decrease, the crowding at the jail continues to be a problem — this year, tensions exacerbated by overcrowding resulted in an inmate being brutalized by a cellmate. The cell they were in was meant to accommodate four — there were six people in it, along with the two extra beds. The inmate died a month after the assault.
The sheriff continues to maintain that the growth in the jail is out of his control because others are involved in the pipeline — the state attorney, the courts, other police departments — but it’s not difficult to imagine how his dislike of collaboration may have had a hand in the matter.
Though fast to name the variety of programs he has engineered to assist inmates and detainees, horrific accounts of abuse at the jail continue to surface. A lawsuit against the Sheriff’s Office detailing how a chaplain working at the jail’s Vocational Rehabilitation Impact Center was sexually abusing detainees, as well as reports of correctional officers smuggling marijuana and alcohol into the jail to sell to detainees or provide to detainees to sell suggests a failure not only to maintain a functional staffing plan, but to properly screen hires.
Evidence of how society has failed the mentally ill as illustrated by the jail has been used by Dart more recently not only to score press from outlets like Vice and the Atlantic, but also to take swing at Mayor Rahm Emanuel, who was forced to cut funding to mental health services as a result of the desperate financial situation in which Chicago finds itself.
Yet despite his passionate diatribes and his gestures of commitment, the medical situation at the jail remains alarming. Disabled inmates are suing after being denied accessibility and treatment. The suggestion that drug usage at the jail is the result of detainees trying to self-medicate may not be without basis given recent reports from a whistleblower (who was subsequently sacked) that inmate medications have been going missing. The firing of this whistleblower is not the only incident of retaliatory firings within Dart’s sphere of influence: Dart himself has been implicated in a lawsuit alleging retaliation against employees who failed to support his political ambitions in 2006.
More disturbing is the way people seem to get lost while in the care of the Sheriff’s Office: detainees found not guilty have been jailed again rather than released after their final court appearances, while a convicted murderer, a murder suspect and a man charged with domestic battery have been accidentally released within a single year. (The first made necessary a costly manhunt and the last promptly returned home to viciously assault his partner a second time). Even a visitor has been lost inside the jail — he was trapped in a 64-square foot room for 32 hours before he thought to break a sprinkler to summon the fire department.
The sheriff blames an antiquated record-keeping system for this, which he has said can’t be helped due to lack of funding. Meanwhile, he has sued Craigslist, devoted countless man-hours to find a way to destroy Backpage, and made his office the target of what could prove to be a very costly lawsuit by Backpage on Cook County’s dime.
Dart’s failure to focus on his core duties has been cited by former employees seeking to challenge him for sheriff and get things back on track. Such would-be political rivals aren’t the only ones — last year his current employees took out a full-page ad imploring the sheriff to “find time from your busy schedule of TV appearances” to improve their working conditions.
THE COST TO US ALL
The situation with Dart should concern more than Cook County taxpayers. It represents two worrying trends that have been gaining momentum: the use of extrajudicial maneuvers to censor speech and the belief that Section 230 is an antiquated law that needs to be retired.
The decision to go after Backpage’s business model instead of seeking legal remedies for its alleged crimes is not without precedent. In 2010, under pressure from the U.S. State Department, Paypal, Visa and MasterCard cut off Wikileaks, a nonprofit organization that has made news over the years for publishing classified media. Neither Wikileaks nor its leaders were charged with any crimes; instead, the State Department sought to sink the site by cutting off its means to accept donations.
“I really don’t think this is the way we should be making law in this country,” says Rainey Reitman, activism director at the Electronic Frontier Foundation, in response to the Backpage situation. “We shouldn’t have informal pressure from public officials forcing financial service companies into deciding which types of speech should and shouldn’t be allowed. MasterCard and Visa are not supposed to be the arbiters of free speech on the Internet.”
But making law the proper way may not be the solution internet users are hoping for as a means of addressing the many instances of forced labor that originate online. Of particular concern is the increasingly popular belief that Section 230 has outgrown its usefulness, and should be retired.
A case against Backpage earlier this year argued that Section 230 had been enacted to insulate a new technology and promote its growth and that it was no was longer necessary now that the internet had come of age. The judge in that case disagreed, and ultimately dismissed the lawsuit, but this opinion continues to be echoed by many — including the politicians who have used sites like Craigslist and Backpage to score the victories necessary to ensure their political ascent.
These politicians had already drafted federal legislation when that ruling came in. The Stop Advertising Victims of Exploitation (SAVE) Act, which began circulating in Congress in 2014, sought to make it a crime to benefit financially or receive anything of value from knowingly distributing advertising that offers a commercial sex act by someone who has been forced into the sex industry. What constitutes “knowing” is defined so vaguely that the act in practice would make it possible for sites to be charged even if they do not know they were hosting such ads.
As the American Civil Liberties Union pointed out at the time, passage of the act would create a situation not unlike that created by the Digital Millennium Copyright Act (DMCA), which has resulted in a trigger-happy regime where sites take down content said to be infringing copyright without question, forcing the individual who posted that content to defend their right to do so through a complicated and intimidating process. The DMCA has been criticized as having a chilling effect on speech, as it is employed most often by individuals who disagree with speech and want it removed, rather than by actual copyright holders.
The SAVE Act passed the House of Representatives in 2014, but it stalled. In January, it resurfaced in the new House and was passed once again, with chances of its being enacted slightly improved. It seemed for a moment that it might stall again, but instead it was quietly added to the Justice for Victims of Trafficking Act (JVTA), a whopper of a bill that dramatically shifted the conversation from free speech to the right of victims to receive federal funding to cover abortions.
The JVTA seeks to make it easier to go after those who seek to buy sex from a victim of coercion by putting soliciting on equal footing with trafficking. Like so many instances where we are assured that giving up a tiny bit of freedom will result in more security, what the JVTA actually does is authorize and fund a number of local, state, and federal law enforcement initiatives and expand the powers of existing agencies, such as Immigrations and Customs Enforcement and the Federal Bureau of Investigation, in order to combat not only sex trafficking, but “illicit sexual conduct,” “illicit e-commerce,” and “cybercrime.”
Most chilling, perhaps, is the Human Exploitation Rescue Operative (HERO) Child Rescue Corps that the JVTA would create — a team of soldiers and veterans trained by the Defense Department to rescue children and help enhance agency efforts targeting other computer crimes. Given the amount of institutional violence experienced by youth in the sex trade, the idea of sending soldiers after them is deeply unsettling.
And then, of course, there’s the amendment adding the SAVE Act. Though leveled at sites like Backpage, there is no reason this attempt to whittle Section 230 will end with classified sites. Investigations by Tom Dart have already implicated Facebook and Instagram as sites used by would-be pimps to lure young women through the use of hashtags.
But Facebook and Instagram are not the only sites being used by people involved in the sex trade. Indeed, law enforcement’s continued interest in sites used by sex workers has had the unintended side effect of driving more of them to general-use social networks. The inherent risk of using sex worker-specific forums was made abundantly clear to sex workers in June of last year, when the FBI seized the site myRedBook and charged its operators, Eric Omuro and Annmarie Lanoce, with using the mail and the Internet to facilitate prostitution. A search of the Mountain View home where the operation was based rendered thousands of electronic documents that law enforcement subsequently used to obtain arrest warrants for a number of sex workers in the Bay Area.
Lanoce and Omuro’s guilty pleas marked the first federal conviction of website operators for facilitating prostitution. But RedBook was not only an adult classifieds site — it was a community-based forum used by sex workers to connect, organize and share information about how to stay safe. The need for such fora in order for sex workers to stay safe and find support from one another has increasingly driven them to social sites, and just as those of us who use such sites to keep in touch with friends and network for work, so have sex workers increasingly begun to do the same. Twitter is known to be used by sex workers not only to lobby for rights, but to find clients, as are Tumblr, WhatsApp, and SnapChat.
There is no knowing what site will be the first target of the JVTA now that Obama has signed it into law, but it’s more than likely that it will force action by sites we all use. Though the federal government has successfully gone after one of the most notorious sites on the “dark web,” such investigations are painstaking and costly. Sex commerce advertising doesn’t have to go that far: it need only find a new home on an off-shore site outside of U.S. jurisdiction.
And so we find ourselves back where we were when Blumenthal first went after MySpace and Facebook, with the results increasingly being felt by all users. It’s no coincidence that most social networks have draconian policies against “adult” content, preferring to take down scientific studies because they contain illustrations of human anatomy, or that many of them have enforced dangerous “real” names policies. These things are artifacts of a battle that is still being waged, not to find traffickers but to control a space the state cannot yet easily police — and, by extension, those of us who inhabit it.
Image by clement127 (Flickr, CC BY-NC-ND 2.0)