With nary a black cat in sight, Friday, September 13 still proved unfortunate for government attorneys in the Lacey and Larkin case. During a pre-trial hearing in federal court in Phoenix, prosecutors sought to continue stonewalling defense counsel on access to data on more than 100 servers that once kept the now-defunct, online listings leviathan Backpage.com in operation — servers that are now the property of Uncle Sam.

But U.S. District Court Judge Susan Brnovich denied the government’s request that she reject a defense motion to examine the material on those servers in the same condition as when the government seized the website on April 6, 2018.  Instead, Brnovich scheduled a day-long evidentiary hearing for October 3, during which law enforcement officers and expert witnesses are expected to testify.

The servers lie at the heart of 100 counts of facilitating prostitution, money laundering and conspiracy faced by veteran newspapermen and ex-Backpage owners, Michael Lacey and Jim Larkin, and their four co-defendants, former executives and employees of the company. Citing 50 specific ads, the government’s superseding indictment alleges that Lacey and Larkin, despite having sold their interests in the company in 2015, knew that the language used in these ads was indicative of commercial sex and that Backpage’s business practices promoted prostitution.

As explained in the defense’s motion to compel evidence, the 106 servers seized by the government contained historical data about Backpage’s ads that can refute the feds’ allegations, show that Backpage’s moderation efforts “blocked or removed approximately one million ads per month,” and reveal extensive cooperation with law enforcement and the National Center for Missing and Exploited Children (NCMEC),

(In fact, the defense believes that Backpage referred so many ads to NCMEC  that the government-backed non-profit complained about the number of referrals, since many of those ads were later found not to involve minors.)

The Battle Over Backpage’s Servers

Of the 106 servers seized in Tucson, Dallas and Amsterdam, the government has so far provided only “images” of data from five, claiming that the other servers contain redundant information. The government also argues that the defendants already have access to this data, because it was subpoenaed from Backpage in previous cases involving the company.

The defense counters that Backpage is not the same as the six defendants, who have pleaded not guilty, unlike Backpage’s erstwhile CEO, Carl Ferrer, who in return for his willingness to assist the feds in prosecuting his former colleagues, pleaded guilty to one federal count of conspiracy to facilitate prostitution. Ferrer also pleaded guilty on behalf of Backpage the corporation to one federal count of money laundering.

According to the defense’s motion to compel, federal rules mandate that prosecutors make the servers and the databases on them available to the defense “in a functional and operational format,” with “all of the connections, software and systems operational so they can access, search, view and analyze information about the website and its actual operations.”

During the Friday the 13th hearing before Judge Brnovich, Whitney Bernstein, an attorney for Larkin, argued passionately that the defense needs to review the server data in the same condition as when it was seized. She insisted that the servers contain exculpatory evidence that will allow the defense to disprove the prosecution’s characterization of Backpage as “a website designed to facilitate illegal content.”

The website’s functional systems “allowed searches of background data” for each of the tens of millions of ads that appeared on the site, Bernstein said. Defense counsel would be able to review IP addresses, contact information, cost, and the dates the ads were posted. Lawyers will be able to tell if a suspicious ad was reported to law enforcement or NCMEC, and if it was blocked by site administrators.

Whether an ad was edited and by whom will be available, Bernstein explained, and the defense will be able to show that, contrary to what the prosecution claims, Backpage’s policy was to prohibit illegal activity on the site. Financial data from the servers will show that Backpage derived substantial income from its non-adult ads as well.

On the courtroom’s monitors, Bernstein displayed two exhibits. One showed a sample screenshot of the administrator’s view of an ad that had appeared on Backpage. It was organized, easy to understand and contained all of the ad’s pertinent information. Before the site’s seizure, administrators could access this data for any ad by clicking on a hyperlink.

Bernstein then displayed what the government describes as the “imaged” data that prosecutors have given the defense for a specific adult ad that purportedly appeared on the site. The exhibit, which is attached to the motion to compel, contains a confusing series of spreadsheets with numerous dead links to the non-existent website as well as page after page of jpegs.

The imaged data contained “798 different pieces of information” and “371 different jpegs,” said Bernstein, and the information offered no obvious path to recreating the ad they supposedly represent.

“This is not reasonably usable in any capacity,” Bernstein told the judge.

Worse still, the government has not produced copies of the 50 ads in the indictment from Backpage’s servers and databases.

Rather, as described in the defense’s motion,

[T]he government has produced what appear to be partial copies of ads from cell phone screenshots, what appear to be partial copies of ads that appear to have been copied and pasted from the website, copies of ads from the Wayback Machine, www.archive.org, and copies of ads that were provided by Backpage when cooperating with law enforcement authorities.

Blame It on the Dutch

Brnovich and Bernstein also discussed a declaration on file with the court from Tami Loehrs, a digital forensics expert employed by the defense to offer her opinion of the evidence. The government had allowed Loehrs to see the physical servers, which are stored in facilities in Phoenix and Pocatello, Idaho.

Amazingly, in both cases, Loehrs reports that she was “not permitted to photograph the servers or power them up to determine the configuration of the servers or the nature of the data contained within.”

The FBI did turn over dozens of hard drives to Loehrs, which the government says are five of the 106 seized servers. But after inspecting these hard drives, and others turned over by the feds, she concludes that “the majority of the electronic data . . . produced by the government does not meet minimum industry standards and is completely unusable in its current form.”

Loehrs writes that “a single advertisement on the website may be constructed of multiple files spread throughout numerous servers and hundreds of hard drives,” making it imperative that the government has “properly acquired and preserved” the servers, in order to “maintain the data in substantially the same state as it was when it was active on the internet.”

Digital evidence is fragile, Loehrs notes. She compares its collection with the collection of evidence during a homicide investigation.

“The investigator cannot just tread through the bloody crime scene in street shoes and pick up the murder weapon with an ungloved hand, he must assess the situation and plan accordingly,” writes Loehrs.

Loehrs expresses concern over the lack of information provided by the government as to just how it seized the servers, since the mere act of powering down or powering on a server incorrectly could corrupt or otherwise damage the data within.  She opines that in its current form, the integrity of the data provided by the government “has been altered or destroyed.”

Regarding Loehrs’ conclusions, Brnovich wondered if the defense was asking prosecutors to “recreate a website that no longer exists.”

Bernstein replied in the negative, telling the judge that the standard for the data disclosed during discovery was “reasonable usability.” The lawyer pointed to the federal prosecution of a different website, in which a “searchable copy of the website was maintained.”

In his rebuttal to Bernstein, Assistant U.S. Attorney Reginald Jones asserted that the government had complied with its obligations.

“We’re not trying to hide the ball here,” Jones told the judge. “We’ve given them everything that we have.”

Replying to Bernstein’s suggestion that the government could have maintained a searchable copy of Backpage before removing it from the internet, Jones repeated an interesting admission made in the government’s response to the defense’s motion.

As a number of the site’s servers were located in Amsterdam, the U.S. asked Dutch authorities to keep the site live.

However, after learning the nature of the allegations against Backpage, Jones claimed that the Dutch “demanded that these servers be shut down.”

At the very least, it sounds like a muck up on the feds’ part. Which may go to why the government has been so cagey when it comes to access to the servers. Notably, the government’s response rejects the defendants’ request to inspect the server data, “in a format the government neither has nor can obtain for its own case and preparation.”

Telling words.

Come October 3, the prosecution may have to finally show its hand and reveal whether the feds scuttled their own case from jump by destroying evidence in the servers or so badly damaging it that it is worthless.

For more action in the Lacey and Larkin case, please check out the following:

Judge Denies Feds’ Bid to Sanction Lacey and Larkin Over WIRED Story

and

Ninth Circuit Hands Lacey and Larkin a Partial Win in Latest Battle over Seized Assets