Federal Judge Susan Brnovich shot down a defense motion in the Lacey/Larkin case that challenged electronic evidence allegedly taken from the defunct Backpage website.
On January 7, U.S. District Court Judge Susan Brnovich, the trial judge in the ongoing criminal case against award-winning newspapermen Michael Lacey and Jim Larkin, denied a defense motion challenging the adequacy of computer server evidence, which the government claims it harvested from the remains of the now-kaput online listings giant, Backpage.com.
In a 16-page order, Brnovich categorically rejected assertions from a defense motion filed in June that the government had produced little more than “a pile of disconnected data” to the defendants. She wrote that the results of a three-day evidentiary hearing held in October and December had demonstrated to her that, “the disclosure of electronic data” by the government had been made “in a reasonably usable format,” thus satisfying the rules of evidence.
Brnovich’s ruling was a major pre-trial win for the prosecution regarding the most important piece of evidence in the case: the website itself, which the FBI seized and dismantled on April 6, 2018. The site played host to millions of classified ads for everything from car sales and pet adoptions to ads for legal adult services such as escorting and striptease, but the U.S. Department of Justice alleges that the site’s primary function was to facilitate illicit commercial sex.
As a result, former alt-media barons Lacey and Larkin, along with four co-defendants, face up to 100 counts of conspiracy, money laundering and the promotion of prostitution across state lines in violation of the U.S. Travel Act. The government alleges that despite selling the company in 2015, Lacey and Larkin are vicariously responsible for illegal acts supposedly connected to adult ads posted by Backpage users.
Why Servers Rule
To defend themselves against allegations that the site’s moderation practices encouraged illegality, Lacey and Larkin need to demonstrate that the opposite is true, that the site 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.
Additionally, the site’s administrative data would show that Backpage cooperated extensively with federal and local law enforcement, regularly reporting ads suspected of sex trafficking — e.g., commercial sex involving children — to the National Center for Missing and Exploited Children (NCMEC), a government-funded clearinghouse for such information.
“Using these servers, defendants undeniably have access to all the data on Backpage.com at the time of the seizure.” — Judge Susan Brnovich.
But the government continues to deny the defense access to the 106 servers that once kept Backpage up and running from sites located in Tucson, Dallas and Amsterdam, only allowing the defense to eyeball the disconnected servers stored in FBI facilities in Phoenix and Idaho, and forbidding defense representatives from even taking photos of the servers’ enclosures.
The reason for the prosecution’s stonewalling became evident during the three-day evidentiary hearing. Government witnesses admitted that the feds failed to preserve the site in a “read-only” form when it was seized, which would have frozen it in time while maintaining its functionality.
Witnesses also told how the FBI took apart the server system in a haphazard fashion without properly documenting IP addresses and other information necessary to reassemble the system, if need be. Still, the government asserted that everything the defense needed was on dozens of hard drives provided to the defense, containing copies of database tables. (The government now says these hard drives represent 10 or 11 of the 106 servers.)
Brnovich agreed with the government.
“Using these servers, defendants undeniably have access to all the data on Backpage.com at the time of the seizure,” Brnovich wrote in her order.
Brnovich wrote that the defense had asked her to compel the government to provide “access to Backpage’s systems, servers databases and data, functioning as they did at the time of their seizure,” or make the government “recreate the databases and systems to allow functional access to the data and information as it existed” when the FBI seized and took down the site.
But the judge found this to be unnecessary. The defense simply preferred “form over function,” she wrote. She added that the government’s database tables, supposedly extracted from the dormant Backpage servers, were a superior investigative tool to the working computer system the defense said it needed.
Brnovich also brushed aside defense concerns over the FBI’s curious and still unexplained decision not to keep Backpage’s system in a “read-only” mode as it had with websites in similar investigations. That situation has caused some to speculate that the government’s mishandling of the evidence in this case was intentional, meant to hamper the defense’s case.
Brnovich dismissed the possibility of reassembling Backpage’s computer system, writing that, “the functional gains of a read-only version are marginal (at best), costly, and substantially slow the process of litigation.”
During the first day of the hearing in early October, Wil Gerken, the chief technology officer of DesertNet, the company that hosted Backpage’s servers in Tucson, explained how he helped the FBI power down the system on the day Backpage was seized.
Gerken, who helped build the system and who testified as the government’s witness, told the court that, if asked, he could have “easily” taken the website offline, and left running a read-only version of the website. This would have allowed even a non-expert to view the site and run queries in the same manner as when Backpage was up.
But the government never asked Gerken to create a read-only version, a process that he estimated would have taken a day or two. He could even have made a copy of the read-only version for the defense, though he said that might require a week or two.
Under questioning by the defense, Gerken said he was familiar with how to take down the system and reassemble it elsewhere and that on April 6, he possessed the information that the government would need if it ever wanted to put the system back together. But, again, the government did not ask him for it.
Though Gerken said the raw data in the system should be the same as when the website was live, it would look wildly different from a read-only version. In the latter, even a non-techie could view an ad as it appeared on the site and pull up an administrative window with all sorts of information about the listing.
But in its raw or “native” form, data for the ad would look like “an Excel spreadsheet,” not as it appeared on the site. (It’s important to note here that according to the defense, the prosecution mainly has cell phone photos and screen shots of ads mentioned in the indictment.)
Asked how long it would take his team to recreate the Backpage system, Gerken estimated a couple of months, at a cost of $30,000 to $50,000.
Brnovich dismissed this possibility, writing that, “the functional gains of a read-only version are marginal (at best), costly, and substantially slow the process of litigation.”
Frost-ing Over Loehrs
The judge also pointed out that FBI forensics examiner Matthew Frost had demonstrated to the court during the hearing how the data he had extracted from Backpage’s servers could be manually searched.
While this is true, Frost’s manual searches appeared to be cumbersome and time consuming, though Brnovich wrote that the government’s “current format of discovery, relying on manual querying of the databases themselves, seems superior to [a] `read-only’ version of Backpage” that does not yet exist. Brnovich ruled that a manual search allowed for broader queries than a read-only version would.
Finally, Brnovich dismissed the testimony of the defense’s computer forensics expert, Tami Loehrs, who had averred that the underlying data on the hard drives provided by the prosecution was “completely unusable” and that the government had effectively “shattered” Backpage’s system into “a million pieces.”
Loehrs boasts of having conducted more than 1,000 forensic exams for criminal cases in state, federal and international courts over the past 20 years. Her work challenging the government’s digital evidence has often forced prosecutors dismiss charges against defendants. Her efforts have been lauded by ProPublica, the Tucson Weekly and other outlets.
But Loehrs also has her detractors, especially among prosecutors, but also some judges, who have criticized her testimony in the past.
Carefully-coiffed Assistant U.S. Attorney Kevin Rapp homed in on these criticisms during his cross-examination of Loehrs on the final day of the hearing, citing portions of these cases and cherry-picking quotes for the most damaging effect.
For example, Rapp took out of context a quote from a 2012 order in U.S. vs. Certantes-Perez, which Loehrs had worked on. In fact, that order was a split decision, with federal Judge Kathleen Cardone limiting Loehrs testimony on certain matters, while accepting Loehrs’ testimony on others.
Regardless, Brnovich ruled that Loehrs’ representations to her court were “both internally inconsistent and contradicted” by other witnesses, thus nullifying Loehrs’ claims that the government’s discovery productions were, in Loehrs’ words, “garbage.”
The consequences of Brnovich’s ruling are immense. As Phoenix defense attorney Richard Gaxiola told Front Page Confidential in December:
“If pressed to move forward given the circumstances, the defense would be literally fighting the case with one hand tied behind its back.”
Barring any unforeseen developments causing further delay, Brnovich’s ruling makes it likely that Lacey and Larkin’s trial will begin as scheduled on May 5, Cinco de Mayo.