The FBI's failure to maintain a read-only version of Backpage.com after seizing the site in April 2018 may have irreparably damaged crucial evidence for the defense in the Lacey and Larkin case.
During a grueling, day-long evidentiary hearing on Oct. 3 at the Sandra Day O’Connor U.S. Courthouse in downtown Phoenix, government witnesses testified that the FBI botched the seizure of the ex-listings behemoth, Backpage.com, by failing to maintain the databases on the website’s servers in a functional form, like they were before the feds took possession of them on April 6, 2018.
Instead, prosecutors have forked over a mishmosh of data copied from five of the 106 servers in their custody. That data in no way resembles the original website, much less the 50 adult ads that form the basis of the government’s indictment against veteran newspapermen Michael Lacey and Jim Larkin and their four co-defendants, former employees and executives of the now-defunct site.
(In a side development, two potential defense witnesses, both former Backpage employees, refused to testify at the hearing under suspicious circumstances. More below.)
Lacey and Larkin, who sold their interests in Backpage in 2015 to company CEO Carl Ferrer, face a 100-count indictment accusing them of facilitating prostitution across state lines, money laundering and conspiracy. Out on bonds of $1 million apiece, the two men maintain their innocence. But according to their attorneys, rebutting the government’s allegations requires usable access to the servers’ databases. These databases contain exculpatory evidence about the adult ads that once shared space on Backpage with listings for help wanted, apartment rentals and puppy sales.
U.S. Justice Department lawyers have been stonewalling defense requests to examine the 106 servers for more than a year, claiming that the government has given everything it has to the defense. Meanwhile, the feds have only allowed defense lawyers to eyeball some of the disconnected servers, refusing them permission to power them on or even snap a photo of them.
Federal Judge Susan Brnovich scheduled the recent hearing in mid-September to address the ongoing dispute, which has serious implications for the course of the trial, currently scheduled to begin on Cinco de Mayo 2020.
Serving the Servers
In general, the hearing didn’t go well for the government. The prosecution’s witnesses revealed that the FBI failed to take important steps to preserve evidence seized with the servers in Tucson, Amsterdam and Dallas.
Perhaps the most knowledgeable witness to take the stand was Wil Gerken, the chief technology officer for DesertNet, a software and hosting provider located in Tucson, which helped build Backpage and hosted the site.
Gerken described how the servers in Amsterdam kept the payment processing information for credit cards and other transactions. Except for this financial data, Amsterdam and Tucson’s servers mirrored each other in case of an emergency and one site went down.
According to Gerken, when the FBI served its warrant on Login Data Center in Tucson, where Backpage’s servers were stored, Login contacted Gerken, who in turn called Ferrer. The CEO, who had already pleaded guilty to one federal count of conspiracy in exchange for his cooperation with the feds, instructed Gerken to comply.
Under cross-examination … Gerken admitted that in its current state — with the raw data on a master server and with images on a separate server — he would not be able to recreate an ad as it appeared on Backpage’s website.
Gerken then traveled to Login’s facility, where he performed a “soft” shutdown of the servers, as opposed to pulling the cord, known as a “hard” shutdown.
The tech exec testified that he later helped the FBI perform a soft shutdown of the Amsterdam servers as well. A soft shut down normally would prevent the data in the servers from being corrupted, he said. Though the website employed different types of servers for different functions, information about the ads on the site were stored on a master server, which contained the raw data for the ad. A separate server housed the website’s images.
Questioned by Assistant U.S. Attorney Andrew Stone, Gerken said that the data on the servers was searchable using an open-source database management system, MySQL, and that all of the data on the servers should be in the same condition as when he powered them down.
But under cross-examination by Thomas Bienert, one of Larkin’s attorneys, and Ariel Neuman, an attorney for one of Lacey and Larkin’s co-defendants, Gerken admitted that in its current state — with the raw data on a master server and with images on a separate server — he would not be able to recreate an ad as it appeared on Backpage’s website.
Nor would he be able to reproduce a screen showing administrative info for each ad, known as the “object editor” data. A common tool of Backpage employees, the object editor displayed important information about the ad, including a history of changes to the listing, whether the ad was removed or blocked and if it was ever reported to the National Center for Missing and Exploited Children (NCMEC).
Such evidence is vital to the defense. Prosecutors claim that the defendants facilitated prostitution on the website, in part through Backpage’s moderation practices. Defendants reject this, pointing out that Backpage prohibited ads for illegal services, and employed filters and human monitors to screen the ads for inappropriate content, blocking and removing up to one million ads per month.
Backpage cooperated extensively with law enforcement, receiving a number of commendations over the years, and it regularly reported ads suspected of involving minors to NCMEC. The defense contends that NCMEC and law enforcement at one point complained that Backpage had been over-reporting such content, asking them to make fewer referrals.
Gerken testified that that the feds could have taken Backpage offline and switched it to ‘read only’ mode, freezing the website in time, while allowing even a non-expert to view the site and run queries in the same manner as when Backpage was up.
If an ad contained inappropriate content or had been reported to NCMEC, the object editor showed a checked box. It also contained notes concerning changes made to the ad, who made them and when, and it showed past images associated with the ad. Gerken said the object editor allowed Backpage employees to view the data “in a clean way.”
Gerken testified that recreating the object editor would be an arduous task, saying that it would be “fairly challenging to set Backpage up and running to do such searches,” after the feds transported the Tucson servers to Phoenix, where an FBI agent “imaged,” or copied them.
Failure to ‘Read Only’
Intriguingly, Gerken noted that the easy-to-understand object editor would have been available if the feds had simply taken Backpage offline and left it in a “read only” mode, freezing the website in time, while allowing even a non-expert to view the site and run queries in the same manner as when Backpage was up.
Why this wasn’t done remains a mystery. Gerken testified that switching the website over to a read-only version was feasible at the time. Moreover, it would have “cost significantly less” than trying to recreate the website, which may no longer be possible if data was corrupted when the servers were copied.
Gerken could have even made copies of the read-only version for the defense, but the FBI never asked him to do any of these things.
Unlike the situation in Tucson, the FBI planned to keep Backpage’s Amsterdam servers up and running so the bureau could access them in the course of other investigations. Why the bureau didn’t do that for the Tucson servers remains a mystery.
Bienert asked if the software whiz could create a read-only version of the website now. Gerken hemmed and hawed. He said that simulating the website’s functions would “take considerable time and expertise, if at all.”
Gerken guestimated that it could take a “few months” and cost anywhere from $30,000 to $50,000. But this was only assuming that the servers had been imaged properly. There was another problem: the FBI apparently does not have the servers’ IP addresses or know the configuration of the servers. The FBI “didn’t ask for connectivity information,” he said
FBI special agent J. Patrick Cullen testified prior to Gerken, saying that he was aware that in past investigations, the FBI had seized servers while leaving a read-only version of the website, but Cullen said there had been no discussion of him maintaining read-only version of Backpage. Cullen was ordered to impound the servers and bring them to Phoenix to be imaged. Cullen also did not obtain information about the IP addresses or the servers’ configuration.
The final witness of the day was Matthew Frost, a forensic examiner for the FBI. Frost became involved in the investigation after the servers had been seized and the website shuttered. He explained that in June 2018, he traveled to Amsterdam to meet with Dutch officials about the Backpage servers there. Unlike the situation in Tucson, the FBI planned to keep the Amsterdam servers up and running so the bureau could access them in the course of other investigations.
The attorney compared one ad’s object editor data to the 91 columns of data that [the FBI] had provided for the same listing. The former was easy to understand and analyze, with a record of multiple changes to the ad. The latter might as well have been in Sanskrit.
But Dutch police informed him that for their own legal reasons they could not allow the servers to remain running while in Amsterdam. The Dutch seized the servers, which Frost said may have involved as much as a petabyte of data, equivalent to 1,024 terabytes, or a million gigabytes. The process, legal and otherwise, took several months. The U.S. ended up with nine servers in its possession, though there are several other servers from Amsterdam that the U.S. has confiscated or is in the process of confiscating. (A full accounting of the Amsterdam servers has not yet been made public.)
Under direct examination from Assistant U.S. Attorney Margaret Perlmeter, Frost told the court that data from the five copied servers was “easily accessible” using MySQL and other open-source programs. But Frost undercut this assertion as Perlmeter took him through a PowerPoint presentation that was supposed to demonstrate what a cinch it was to do searches for ads and other information with the raw data.
As the court watched on a monitor, Perlmeter and Frost paged through a mindnumbing series of spreadsheets that Frost had created. Doing simple searches or cross referencing ads by their users, for instance, involved a cumbersome process that seemed far from intuitive, and Frost bumbled through the demonstration as eyes in the courtroom glazed over.
Bernstein on Point
On the cross, Whitney Bernstein, an attorney who represents Larkin along with Bienert at the Bienert Katzman law firm, compared an actual ad that ran on Backpage to the multiple spreadsheets Frost had walked the court through. Still, Frost contended that “no matter what format,” the underlying data was the same, but he conceded that the actual ad was user-friendly as opposed to the raw data from the servers.
Bernstein said she had asked Frost to produce samples of the ads mentioned in the indictment, which Frost sent to her as a CD. She then handed him a doorstop of a document, about a foot thick, telling Frost that it was a printout of all of the spreadsheets that had been on the CD he gave her.
The attorney compared one ad’s object editor data to the 91 columns of data that Frost had provided for the same listing. The former was easy to understand and analyze, with a record of multiple changes to the ad. Regarding the latter, it might as well have been Sanskrit.
Two defense witnesses refused to testify at the hearing, and counsel for defense expressed concern that the government had been in contact with both women.
Could Frost do a search for ads that Backpage reported to NCMEC? This was information that she could find on an object editor without a problem. But Frost was at a loss.
“Sitting here, right now, since I have never done that before, I can’t,” he replied.
Judge Brnovich had intended to end the day at 4:30, but she allowed Bernstein to continue her cross examination well past cut-off time. The judge then scheduled the hearing to continue on October 25 at 1 p.m.
Before court adjourned, David Eisenberg, an attorney for Backpage’s former chief operating officer, rose to complain that he had subpoenaed an ex-Backpage employee to testify at the hearing, but she refused to appear.
Eisenberg said the woman claimed to be “working with the government” and was “being flown around the country by the government.” Eisenberg told Brnovich that the witness gave her contact as Reggie Jones, the senior federal prosecutor assigned to the case.
Jones told the court that he had received a communication from the witness, but that his team did not tell her what to do about the subpoena.
Similarly, at the beginning of the hearing, Bienert told the court about another female witness he wanted to call. In this case, the woman, another Backpage employee, seemed willing to testify when Bienert’s team met with her for two hours on the day before the hearing.
The woman’s lawyer was present at the meeting. At one point, the attorney looked at her phone and said, “The government’s calling me.”
The government’s stacked the deck by seizing Lacey and Larkin’s assets, smearing their names and pulling a Humpty Dumpty on the biggest piece of evidence in the case: The website itself.
That night, Bienert said he received an email, informing him that his witness would be invoking her Fifth Amendment right against self-incrimination.
After Eisenberg raised his issue, Bienert piped in to express his concern, noting that this was the second time something like this had happened with a witness.
Bienert’s witness was supposed to be a replacement for ex-CEO Ferrer, whom Bienert had subpoenaed for the hearing, though Ferrer moved to quash that subpoena and Bienert had subsequently withdrawn it.
Brnovich told Eisenberg that his subpoena might have been too short notice for a “civilian,” but that if he had problems like this in the future to contact her and the court would handle it.
She asked Bienert what she wanted him to do. He conceded that he did not have evidence to prove the government interfered with a witness. He said the defense lawyers would caucus and get back to her if they felt the witness’ testimony was relevant.
Hardball? That’s putting it lightly. Not only is the government committed to putting Lacey and Larkin in stir for the rest of their lives, it’s stacked the deck by seizing their assets, smearing their names and pulling a Humpty Dumpty on the biggest piece of evidence in the case: The website itself.