Note: For regular updates during breaks in the proceedings, follow @stephenlemons on Twitter/X, search for #BackpageTrial.

The worst part of sitting through the testimony in the Backpage trial is waiting for the prosecution to “pass” the witness to the attorneys for the accused.

Fortunately, there’s a payoff: that’s when the defense’s cross-examination begins.  Such was the case on Wednesday at Phoenix’s federal court during the defense’s respective interrogations of John Shehan, an executive with the National Center for Missing and Exploited Children (NCMEC), and Bradley Myles, ex-CEO of the anti-trafficking non-profit, Polaris.

On cross, both men attempted to explain why their organizations treated Backpage differently than other interactive websites, like Facebook and TikTok, which also struggle to keep unwanted content off their sites. Both described tense meetings with Backpage owners and execs, after which they were unsatisfied with Backpage’s response to their orgs’ suggestions and demands.

During direct examination by prosecutors, Myles said he and others at Polaris, which runs a human trafficking hotline funded by the government, wanted Backpage to shut down its adult section “to make sure trafficking wasn’t happening on the site.”

In December 2011, Polaris and a string of anti-trafficking groups sent a letter to the late Jim Larkin, former co-owner of Backpage’s parent company, the alt-newspaper chain Village Voice Media (VVM), demanding that the company immediately and permanently shut down the adult section. Polaris received no response, and there’s no way to know if Larkin ever saw it.

Backpage did not self-censor its adult section until 2017, and, much like what happened when Craigslist nixed its adult services section in September 2010, some adult ads continued to be posted in other categories by the site’s users. The FBI ultimately seized and destroyed Backpage in 2018, in an unprecedented act of direct government censorship.

Myles said he met with Larkin and others — including a former federal prosecutor Hemanshu Nigam, who was advising Backpage on moderation — at the Polaris offices in Washington, D.C. in March 2011.

Backpage’s creator and ultimate owner, Carl Ferrer (now the prosecution’s star witness), gave a PowerPoint presentation, highlighting the site’s efforts: increased moderation, a banned terms list to weed out offers of sex for money, no nudity, and continued cooperation with law enforcement, such as answering law enforcement subpoenas within 24 hours.

Myles said Polaris had concluded that the measures Backpage was taking were “incremental” and trafficking would “still exist” on the site. He described a debate in the anti-trafficking community between the “abolition versus regulation”  of prostitution when it came to fighting trafficking. He said Larkin told him, “Those are some of the same issues we’re grappling with as a company.”

Larkin died in tragic circumstances just before the start of the trial, which comes more than five-and-a-half years after the veteran newspaperman, and his longtime business partner, renowned editor Michael Lacey, as well as four Backpage employees and execs were indicted and arrested for “facilitating” misdemeanor state prostitution offenses in violation of the U.S. Travel Act.

The defendants are not charged with facilitating sex trafficking, which involves either minors — or adults coerced into the sex trade.

Instead, their charges relate to the rather pedestrian crime of prostitution, which is largely regarded as a nuisance by most cities and states.

It was federal prosecutors’ persistent, over-the-top mentions of (and elicitations of testimony about) sex trafficking and child sex trafficking — in violation of a previous judge’s order — that led to a mistrial in Sept. 2021, after just three days of testimony.

Like the previous judge, who recused herself for unknown reasons shortly after the mistrial, Humetewa has allowed mentions of trafficking and child sex trafficking, ruling that the heinous crimes are “subsets” of prostitution, which, by contrast, involves consenting adults engaged in commercial sex.

In the current trial, defense attorneys have moved for a mistrial six times so far, arguing that the jury has been tainted by the prosecution’s — and its witnesses’ — repeated references to inflammatory material. But Humetewa has denied every motion, stating that prosecutors have yet to cross the line.

NCMEC and Facebook

Shehan, an executive vice president with NCMEC, a non-profit largely funded by the U.S. government that serves as a clearinghouse for tips about missing kids, testified that NCMEC met with the Backpage folks just before Polaris had its powwow. In addition to Larkin, Ferrer, Nigam, and others, VVM’s executive editor and co-owner, Michael Lacey, was present.

The group first sat down in a closed-door discussion with Ernie Allen, NCMEC’s then-President/CEO. Shehan was waiting outside the closed door. He testified that he heard “loud shouting” between Allen and Lacey, but he could not make out what was being said. (Earlier in the trial, Ferrer testified to the actual words exchanged between the two.)

Shehan said he later joined the meeting and walked the group through a PowerPoint, titled, “The Internet and Selling Sex,” which Shehan said was intended to show how to make Backpage “safer.” In it, he gave examples of escort ads on Backpage dating back to 2006 purportedly featuring minors who had since been located by law enforcement.

He indicated that the signs of possible sex trafficking in the ads included links to The Erotic Review (TER), which publishes anonymous reviews of supposed encounters with prostitutes, and the use of words in TER like “roses” and GFE, or, “Girlfriend Experience,” which he claimed to be code words for sex-for-money offers.

Shehan told the assembled that “steps could be taken” to mitigate the problem, such as eliminating Backpage’s hyperlinks to TER. In subsequent meetings with Backpage execs, Shehan proposed several potential changes to the site, such as: using “hash value technology” to identify photos of minors, mining data in the ads, age verification, and so on.

But NCMEC decided to end the meetings because, Shehan claimed, Backpage did not implement its suggestions. Nevertheless, on a regular basis, Backpage continued to forward tips to NCMEC’s cyber tipline, sometimes hundreds a day, which NCMEC then dispersed to the proper law enforcement agencies.

Under cross-examination by Lacey’s attorney, Paul Cambria, Shehan admitted that Backpage had actually implemented some of NCMEC’s suggestions. Backpage banned links to TER and eventually banned the term “TER” itself. It instituted a “no nudity” policy, as proposed by Allen. And it began using hash technology, though it was not the tech that Shehan preferred.

As far as the alleged “indicators” of sex trafficking in the ads, like “GFE,” Cambria suggested that this was actually just Shehan’s opinion. Shehan had more info on the ads than Backpage, given to him by police agencies.

Shehan conceded: “We knew from law enforcement that the kids had been recovered.” In other words, Shehan didn’t know how to look at an ad and determine if someone was underage. Determining if a crime was afoot could only be done by a law enforcement investigation.

Cambria then went in for the kill, observing that Facebook had reported over 20 million instances of child sex abuse material in 2020 alone, and now Facebook was rolling out end-to-end encryption, which NCMEC opposes because it believes it will exacerbate the problem.

“Meta knows we are concerned [about encryption],” Shehan replied.

And yet, Cambria observed, NCMEC identifies Facebook as a “partner” on its website — a “partner” that’s donated over $1 million to NCMEC.

“You suggest a thing and they don’t adopt it and they’re still a ‘partner’?” Cambria wondered.

Shehan confirmed that Facebook is still a partner of the nonprofit.

Cambria also asked Shehan about a suggestion made by a Backpage representative: The development of” national standards” regarding posting content online. The Backpage rep asked NCMEC to spearhead it.

NCMEC declined, Shehan said.

On further cross, defense attorney David Eisenberg asked Shehan about the “thousands” of reports Backpage made to NCMEC. Shehan admitted that he’d sent every one of those ads to law enforcement.

During his turn at bat, defense counsel Bruce Feder confronted Shehan with the fact that before the 2011 meeting, Backpage had already ditched TER links, severing ties with the company. Shehan agreed that there were many different sites that had TER links at the same time.

On redirect by the prosecution, Shehan was asked about the defense’s comparison of Facebook to Backpage. Shehan said they were “very different types of platforms,” as Backpage was a classified ads site and Facebook was a social media site.

True, but Backpage was an interactive website featuring user-generated content, just like Facebook.

And Facebook has major issues with keeping illicit content off the site, as Backpage once did.

Polaris and the First Amendment

Myles didn’t fare much better.

Cambria asked him about the “abolitionists versus regulators” debate over prostitution and started to ask him about the First Amendment.

The prosecution reacted like Count Dracula to a crucifix, objecting on the grounds of “relevance.”

“The Constitution is always relevant,” Cambria shot back.

Judge Humetewa permitted Cambria to ask Myles if the “regulators” were concerned about the First Amendment aspect of the debate.

“It’s one of many considerations, yes,” Myles replied.

Wasn’t there similar evidence of child exploitation to be found on Facebook?

“Yes,” he answered.

And there were 20 million examples on Facebook in 2020?

Myles wasn’t sure of the exact number.

Defense attorney Feder followed up in his cross: Did Polaris send a takedown letter to Facebook? Google? TikTok?

No, Myles responded, but Polaris did do the same to Craigslist, he said, which spiked its adult section in 2010, though Myles, under previous questioning by Cambria, acknowledged that after Craiglist self-censored, there were nearly13,000 adult listings still on other parts of the site.

Though defense attorneys are limited in the subjects they can inquire about, you can’t say they aren’t doing their jobs in establishing reasonable doubt.

Hopefully, the jurors agree.

The prosecution is expected to rest today (Thursday) or Friday. Then the defense will begin putting on its case.

Note: For regular updates during breaks in the proceedings, follow @stephenlemons on Twitter/X, and search for #BackpageTrial

Please also see:
Groundhog Day: Prosecutors Elicit Inflammatory Testimony in #BackpageTrial, Defense Moves for Mistrial
and
Backpage Trial Resumes Oct. 10, as Federal Prosecutors Ruin Lives Big Brother-Style