Memorandum . i' .?s'mtes . ll intern first?: of Rubin-1 I'hlc Backpagecom Investigation April 3. 3012 From Jenny Dur?kan Aravind Swaminathan Catherine Crisham I. Introduction This memorandum is intended to summarize current legal and [actual analysis into a potential prosecution against Backpagccom. LLC First. the memorandum describes how Backpage's website operates and outlines the various procedures the company has implemented to prevent traf?cking and child esploitation. as well as steps it has taken to cooperate with law enforcement Second. it examines two potential legal theories for a prosecution against Backpage. and ultimately concludes that the only viable avenue of prosecution is urtder Title IE. United States Code, Section l59lta)(2) Third. the memorandum discusses some ot'the proot'issues that will likely arise in any prosecution against Backpage pursuant to Section 159]. including constitutional issues raised in similar contests. These include issues that became apparent to during the course of our preliminary investigation. as well as certain matters that were brought to our attention by FBI agents who routinely work child sex traf?cking cases. Finally. the memorandum summarizes a proposed avenue of prosecution and the potential challenges in proving a crime against Backpage ll. Backpage A. Backpage and Current Public Reactions Backpage is a tree classified advertisements service that operates very similarly to Craigslist. Users can place classi?ed advertisements For a fee by yisiting the Backpage domain. Advertisements are grouped by region. and Backpage offers services for metropolitan regions across all ?fty states and the District of Coiumbia. as well as several foreign countries. including Canada. Mesico. and South Africa. Exhibit I. Each metropolitan community Backpage website categorizes classi?ed advertisements into one ol? several categories. such as ?community." ?automotive," "rentals." ?jobs? and ?adult." The ?adult" sections are divided up into sub-categories: ?escorts." ?body rubs.? "strippers ii: strip clubs" ?dom tetish," [transsexual]? ?male escorts.? ?phone websites," and "adult jobs." In September 2010. under intense pressure from several state Attorneys General, Craigslist closed down its Adult Classi?ed section. which was very similar to the adult entertainment section offered by Backpage. Since Craigslist eliminated its adult services advertisements. estimate that Backpage has generated approximately $23 I million in revenue from advertisements posted in its ?escorts? and ?body rubs" sub-categories. .?s?ee Exhibit 2. "Backpage sees 50 percent annual gain in online escott-ad revenue." I I These revenue estimates do not include revenues generated from Backpage sites in Canada. Australia. Ireland and other foreign countries. According to research conducted by Compete com. unique visitors to Backpage sites increased from approximately I 3 million itt August EUIU to approximately 3.25 million in May ZOI I. In the same period ot?time. ?escort" and "body rub" listings at Backpage increased from an estimated 32.000 to 100.000. Since August EOIO. Baekpage?s revenues from advertisements believed to he linked to prostitution were cstintated to be approximately live times higher than its nest competitor. Eroscom The National Association ot? Attorneys General have continued to exert pressere on Backpage to close down the adult entertainment portion ofits website. In connection with those efforts. the NAAG. headed by the Washington State Attorney General. has requested information From Backpage on certain aspects ot?its operations. which Back page claims are proprietary. Recently. on March -3. 2012. the NAAG received a letter from Backpage?s general counsel. addressing some ot?the NAAG's concerns about Backpage and including some background materials This letter makes clear that Backpage has no intent of eliminating the adult category from its website. on the grounds that its actions are protected under the First Amendment and the Communications Decency Act. See Exhibit 3. Letter From Village Voice Media Holdings. LLC. Of?ce ot?GeneraI Counsel. Elizabeth McDougall to National Association ot'Attorneys General. dated March 23. 20 IE. As mentioned above. Backpage has very recently and for the ?rst time shared the following documentary information with the NAAG: - Backpage com Supplemental Responses. Without to NAAG Requests For Information; - In the matter of Backpagecom Allidavit ot?Carl terror; and - Sample Backpagecom Prohibited Words. Acronyms and Codes See Exhibit 3 at e. Backpage shared these materials with the NAAG subject to a con?dentiality agreement between Backpage and NAAG. Presumably. we could obtain these materials from or the Washington State Attorney General through a grand joty subpoena. but we not tlte risk ot'NAr'tG revealing our investigation. Given that risk. we have decided. at this time. to refrain from subpoenaing the materials. B. How it Works Individuals can post advertisements by clicking on the ?Post Ad" button at the top of each metro region website. and selecting the section or category under which they want their advertisement to be displayed. Exhibit 4 For an "adult entertainment" posting. users select that link. attd lhett select a sub-category. such as "escorts." "body rubs." or "adult jobs." Exhibit 5 L'sers then select the metro region where they want to post their advertisement. Exhibit o. I. Posting Rules After selecting the desired metro region. the poster must agree to the "Posting Rules." which provide the following rules and prohibitions on posting advertisements: Yeti agree to the following when posting in this category: . I will not post obscene or lewd and lasuivittus graphics. or photographs which depict genitalia or actual or sitnulated sexual acts; - I will not post any solicitation directly or itt ?coded" fashion for any illegal service exchanging sexual Favors for money or other valuable consideration; - I will ttot post any material on the Site that exploits ntinors itt any way; - 1 will not post any material on the Site that in any way constitutes or assists in human traf?cking, . 1 am at least 18 years of age or older and ttot considered to be a minor in my state ot?residenee Any post exploiting a minor in any way will be subject to criminal prosecution and will be reported to the Cybertipline and law enforcement. Any post with terms or misspelled versions of terms implying an illegal service will be rejected Examples ol?such terms include without limitation. ?greelt'. ?gr33k?. 'blow?. 'trips to greece'. etc Posrings violating, these rules and our Terms of Use are subject to removal without refund. Exhibit 7 temphasis itt originalt' 'Note. tltouglt. tltat the ?escorts" sub-section bears a disclaimer suggesting that nadtt} ts common on the Speci?cally. disclaimer reads. This section contains sexual content. including pictorial audit} and adult language. It is to be accessed only by persons who are lit tears ofage or older (and is not considered to be a minor in ltis?ltcr state of residence) and ?ll? lit-c a or nude pictures and explicit adult are not prohibited b} In? accessing this representing to its that ton meet the above quali?cations A?n'st: representation mar be err'rrtr'mn' o?'errse. DOJ-BP-0004573659 2. write Ad Posters are then directed to the Write Ad section, where thev compose the subject and text ol?their posting. as well as upload other relevant information. The Write Ad section outlines tlte rules for creating advertising NOTICE. Do not post naked images. eg. uncovered genitalia. bare butts. nipple or nipple area. sex acts. etc. - Do not post images using transparent clothing. graphic box or pixelization to cover bare breasts or genitalia - Pricing for legal adult services must be for a minimum of one hour Example: 15 minute services are not allowed. no blank pricing. etc. - Ads can be a maximum length of 500 characters . Do not use code words such as ?greck'. gr331-t ?blow'. GFE. PSE, ?trips to greece?, etc. - Do not suggest an exchange of sex acts for money. - Do not post content which advertises an illegal service. Postings not complving with the terms of use are subject to removal. Exhibit 8 temphasis in original}. Posters are required to provide a title. their age. the advertisement copy, and an e-ntai] address. The poster is also permitted to identify hisrher location and upload images. Exhibit 8. To proceed to the next step. posters are required to agree to terms of use. and the following provision By placing this ad 1 agree to the terms of use. I con?rm and [caution and represent that I am lit years ofage or older (and am not considered to be a minor [It 111} state of resrdeneet and that I am not located at a or local jurisdiction where nude pictures or explicit adult nutten'als are prohibited by. an} Ian. 1 agree to report atn illegal services or actixities altielt violate the Tenns of Use. I also agree to repon suspected exploitation of minors andjor traf?cking to the appropriate authorities. 1 lane read the disclaiaterand agree to all rules and regulations including the Terms of Use. -4- DOJ-BP-DDM573660 represent that 1 am at least l8 years of age or older (and am not considered to be a minor in my stale of residence) and that I am not located in a community or local jurisdiction where nude pictures or explicit adult materials are prohibited by any law. I further represent and warrant that this posting does not contain any obscene or lewd and lascivious graphics or photographs or graphics or photographs which depict or simulate sexual acts. Exhibit 8. 3. Preview Ad Users are then directed to a Preview Ad page. which con? 11115 the price to be paid to Backpage for posting the advertisement. The user proceeds to the next stage of posting by clicking on the ?Place Ad Now" button. Exhibit 9. 4. Age Veri?cation Next. users are directed to verify their age. In the Age Veri?cation section. users are required to input their ?rst name. last name. date of birth. and zipfpostal code. and then click on the "Continue" button Exhibit IU. Age veri?cation at this stage is not required in all sub- categories. For example. a user can does not need to verify hisfher age at this step in posting in the "bodyrub" sub-categorv 5. Payment Finally. users are directed to a Payment section. where they are required to provide a payment instrument and the following information: Name Address City Stater'l?rovince Ziprostal Code Phone Number {optional} Card Type Card Number Expiration CVV Code Exhibit 6. Report Ad DDJ-BP-DDM 573661 Ever_v post on Backpage also contains a ?Report Ad" link at the top ot?the page. Users who click on the link are directed to a page. which asks the user for the basis of the complaint. There are three options. which can be selected by clicking on the appropriate radio button: - Inappropriate or Illegal Content If this involves a threat to a child or an image of child exploitation. please email abuse?tbackoaaecom the URL of the posting. Over Posted I Spam - Wrong. Category Exhibit l2. Electronic reporting ofa post does not result in the immediate removal ot'the post. Instead. Backpage responds to the reporting user that: If you accidentally reported this ad. don?t worry. It takes multiple reports from multiple people for an ad to be removed. lt?this involves a threat to a child or an image of child exploitation. please email abused}:backpagecom the URL oftlte posting. Exhibit As discussed in tnore detail below. law enforcement has been able to successfully contact Back-page and obtain immediate removal of certain posts. C. Back-page?s Attempts to Limit Child Exploitation Much like (?raigslist before it. Baekpage has attempted to implement certain procedures and controls to prevent the adult services sections ofits website from being used to traffic and exploit minors. In a recent editorial. responding. to a column written by New l'or'lr Notes columnist Nicholas Kristof criticizing Backpage for its role in the child sex traf?cking industry. l'tt'fugc l?otec .r'lrfedru claimed that ?Backpage dedicates hundreds of statho screen adult classi?eds in order to keepjuvcniles ott? the site and to work proactively with law enforcement in their efforts to locate victims." See Exhibit l4. What Nick l'rJrL'e al'ft?tftlu Responds. The Village Voice. March 2 l. 2012. Backpage has been reluctant to provide specific details. at least publicly. about its screening. procedures and other policies it has implemented to prevent advertisements for child prostitution on its website. Exhibit 15. Letter from Samuel FifcrofSNR Dcnton US LLP. Counsel to Backpagccom. to Hedda Litmn. National Association ol?Attome} 5 General. dated September 23. 201 I. see (also Exhibit If). Letter from National Association ofAttomeys General to Samuel Fifcr Re' Backpagccom's ongoing failure to limit prostitution and sexual trafficking activity on its ucbsite. dated August 3 I. EUI 3 We are aware. however. through consultation with law enforcement and from Backpage's public statements. that the website has taken certain steps to prevent exploitation of minors on its adult services website. These include the following; - Per ?ttl lie 5 nin 1* fimaue nd vetti ment . Backpage contends that it has a team ofindividuals screening all advertisements within 20 minutes of upload. See Exhibit IT. Backpagecom. Safet} and Security. Itltt?tjiiblou.hackpattccont [last visited March 29- 2012}. According to Backpage. it has implemented a no nudity policv. as well as stricter image content policies. in an attempt to prevent the publication of advertisements involving juveniles. See Exhibit I7 Backpage further claims to have ?built quality assurance tool to increase ad moderator effectiveness" and to have implemented a ?two-tier system used to moderate content to increase quality of ad review See Exhibit l7. Backpage also states that it has implemented an ?ad moderator accountability system . . . to increase quality and ef?ciency and moderation staff increased significantlyI See Exhibit l7. We have verv little information about precisely how this screening process works. how manv individuals are involved. or what type of image standards are in place. In its response to the NAAG. Baekpage claimed that information related to the ?individualized or hand-review process undertaken by Backpagecom. including the number of personnel assigned to conduct such review" was "proprietary." but agreed to provide it to the NAAG ?under separate cover, As noted above. Backpage recently provided some information to NAAG pursuant to a confidentialitv agreement. but we have not yet reviewed that information. Exhibit I 5 FBI Special Agent Steve Vienneau. who heads the Innocence Lost 'I?ask Force in Seattle. advises us that Backpage personnel have. on manyr occasions. forwarded him advertisements that appear to contain pictures ofjuveniles. According to SA Vienneau. these advertisements have either been identified by Backpage screeners as potentially involvingjuveniles. or have been ?fl agged" by Backpage users as potentially offensive or illegal. SA Vienneau further advises that Backpage has been very cooperative at removing these advertisements at law entorcement' 5 request. While this tvpe of manual screening is helpful. even an individual review of all posted images will not ensure that minors are not exploited on the website. As an initial matter. many prostitutes who advertise online adults as well asjuveniles 3 in his September 23 letter. Fifer states that details related to screening and review process "intoli. proprietary or lav. enlorcement-scnsitivc" materials. and advises that Backpage will pI'O?t idc such to the NAAGI "under some reasonably agreed-upon con?dentiality protocol I5 at 3. -7- DOJ-BP-OOCM573663 D. post pictures ot?individuals other tltan themselves. Morever. the photographs of many juvenile victims are posed in suclt a way that a viewer cannot discern her age. Finally. somejuvenile victims mayr simply appear to look older than eighteen in certain photographs For all these reasnns. even a manual review of all advertisements prior to posting will not ensure that children are not trafficked on Backpage. Screening of advertisements for prohibited terms . Backpage claints lltal ?keyword searches" are "conducted across site to locate inappropriate or illegal content." and states that it utilizes a list of??banned" and ?inappropriate? terms ?to identify- and prevent illegal content.? See Exhibit 1? In its response to the NAAG, Backpage maintained that it has "newlyr upgraded attd automated ?lters [that] have already banned several thousand terms from ads. many ofthem code words or intentionally misspelled words designed to circumvent standard filters." Exhibit IS. The company stated that ntore detailed information regarding these filters was proprietary. and said that it would "submit to [the under separate cover a sample of banned terms and phrases and the processes under which terms. URLs. IP addresses, and other proprietary information are blocked." 511? Exhibit l5. Credit card fee for all advertisements. Backpage has followed {?raigslist's policy, initiated at the suggestion ofthe ofcharging a fee for each adult services advertisement. The benefits ofthis policy are threefold: it reduces the volume of advertisements. it provides information to law enforcement about a particular advertisement. and it {ostensibly} makes it less likely tltat a minor will be able to post advertisements. Unfortunately. the credit card requirement ltas not been successful in deterring child exploitation on the website. as botlt pimps and juvenile prostitutes are able to procare prepaid. reloadable credit cards 1with very little dif?culty. Cooperation With Law Enforcement In its September 20] 1 letter to the NAAG. Backpage states that it has ?pledged to work cooperatively with law enforcement to protect children" and contends that it has "already taken bold measures to remove postings on our site that could in any way involve child trafficking." See Exhibit l5 at indeed. information provided to us by SA Vienneau and otlter members of the Innocence Lost Task Force confirm that. unlike virtually every other website that is used for prostitution and sex trafficking. Baekpage is remarkably responsive to law enforcement requests attd often takes proactive steps to assist in investigations Some of the ways that Backpage assists law enforcement include the following: Prompt attd contplete responses to subpoena reguests. Backpage records cart provide a goldmine ofinformation for investigators seeking to locate an exploited child or build a sex trafficking case. Backpage estimates that it responds to approximately [00 subpoenas from law enforcement eaclt month. anti often turns -3- around responses to tltose subpoenas the same day. Furthermore. with respect to any child exploitation investigation. Backpage often provides records within the hour See Exhibit l5 at 5. SA \J?ienneau and other members ol'tlte ILTF con?rm that Backpage quickly and thoroughly responds to subpoena requests. They also note tltat even without a subpoena. in exigent circumstances such as a child rescue situation. Backpage will provide the tnaximum information and assistance permitted under the lav? This intormation includes IP addresses with time. date. and time zone stamps. e- mail addresses. full credit card data. telephone contact data (it?available), and all images as Four-color electronic documents Removing andror blocking, postings. SA Vienneau reports that on many oeca sions. at the request oi'law enforcement. Backpage has removed postings believed to involvejuvenilc victims. or victims who are being forced or coerced into prostitution. In addition. Backpage has complied with law enforcement requests to remove postings intertienng with an investigation (e . where the post is alerting users to a sting). See Exhibit [5 at S. Backpage has also agreed to block Future postings from users when law enforcement has advised it that the user is engaged in illegal activity. l-lowever?. it is not known precisely what steps Backpage takes to block known illegal users from posting again. Moreover, it is unknown what. if any. steps Backpage takes in response to user?generated complaints about particular advertisements. Cooperation with NCMEC. As noted above. Backpage ltas on its website a link to the National Center for Missing and Exploited Children (NCMECIS which is the national clearinghouse for leads and tips regarding crimes against children on the internet. According to Ernie Allen. the president and CEO of NCMEC. Backpage made 2.695 reports in 201 to NCMEC regarding advertisements on its site that its personnel suspected involved the sexual traf?cking ofchildren .?s'ee Exhibit l8. Testimony of Ernie Allen. President attd CEO of the National Center For Missing attd Exploited Children. to the Institute of Medicine. Committee on Commercial Sexual Exploitation and Sex Traf?cking ot? Minors in the United States. January 4. 2012. at 4, {Allen noted in his testimony that this surge of reports was itt response to a letter From the NAAG to Backpage expressing its concem about the prevalence ol'child exploitation on Its SIICJ Backpage states that it has regular meetings with NCM EC staff. and has ?received invaluable suggestions from NCMEC as to available online tools and resources For deterring. reporting and removing objectionable postings." See Exhibit IS at o. In addition. at law cnforccment's request. Backpage has added further information to each NCMEC report. including the user name of the Backpage slal'l?tnemher reporting the post in order for law to contact -9- them directly for further information. See Exhibit lit at 2. Backpage contends that it has also worked with NCMEC to develop logarithmic ?screens" that detect and filter terms that are believed to be improper or that propose an illegal transaction See Exhibit 15 at 2. - Proactive reports to law enforcement Baekpage?s CyberTipline reports are sent to botlt and statet?local law enforcement. See Exhibit IS at 6. Law enforcement officers are directed to work with the Backpage staff member who originally reported the post in order to develop further information about an investigation. - Trial testimony. Backpagc personnel regularly provide live testimony at trial to authenticate the evidence against defendants who have utilized Backpage to engage in sex trafficking .?i'ec Exhibit l5 at 4. - Aid to law enforcement Backpage has prepared and distributed law enforcement guides with FAQ to expedite investigations See Exhibit 15 at 4 In August 2m 1. Backpage held two workshops for law enforcement agencies at the Crimes Against (?hildren Conference in Dallas. At those workshops. Backpage distributed its law enforcement guides. described the data it can secure for law enforcement. and ft elded questions regarding how it handles sting postings and future tools requested by law enforcement. See Exhibit l5 at 5. In addition to these steps. SA Vienneau reports that Carl Ferrer. Backpage?s founder and a vice president at 1Village lVoice Media. has provided extensive. proactive support to law enforcement in several recent investigations. According to SA Vienneau. on several occasions. Ferret has taken information provided by law enforcement about a potentially illegal advertisement. and then conducted an independent investigation to gain additional information about the individuals posting the advertisement attd provided that infonnation to the FBI. For example. on January 2UI2. SA Vienneau sent Backpage a request to preserve records related to three potentially illegal advertisements. In response. Ferret sent an email stating that he was having his staff preserve records relating to those accounts. and also ?doing a search by phone number for tltose ads possibly under different email addresses." Ferrer also stated that Backpage personnel had "found links to other [websites] with those matching phone nutnbers. The twitter link is vet?;r explicit. It has prettyr close to all nude pic [sic] and a pic ofher pimp {possibly-l." Exhibit l0. E-mail front Carl Ferrer to Steve Vienneau re. Your record request and a twitter account we found. dated January 3 l. 2012. Later that day. Ferrer sent another entail to \"ieltneau with a link to the victim's Facebook page. and noted that "we keep hearing t'acebook has been used to recruit by criminals. so facebook may be another good source of information.? Exhibit 20. E?mail from Carl Ferrer to Steve Vienneau re: Ads still live. dated January 3 EDIE. On February 22. 20I2. Ferrer sent \"ienneau an entail suggesting ways that law enforcement could assist Backpage in identifyingjuvenile victims Speci?cally. Ferret DOJ-BP-0004573EBB suggested that law enforcement provide Backpage with phone numbers of individuals "known to be involved in juvenile prostitution that we could enter as alerts . . . il'a phone number is triggered. a NCMEC repon goes out stating ?a phone number given to us by law enforcement triggered this cyber tip alert." Ferrer noted that ?this might be more useful than just looking at the pic and saying the model looks too young." Exhibit E-mail from Carl Ferret to Steve Vienneau re Ads still live. dated February 22. 20I2. According to Vienneau. he has had a number ot?conversations with Ferrer. both on the phone and via email. about individual investigations and ways to ensure that minor victims are ttol traf?cked on Backpage. See Exhibit 22. E-mails from Carl Ferrer to Steve Veinneau re: FW Preservation request. dated March 15 and March lo. 20l2. II I. Legal Analysis have considered two different theories of prosecution against Backpage: Title l8. Lfnited States Code. Section ISQI and Title IE. United States Code. Section ISSQ For the reasons explained below. we believe that an investigation focused on violations of Section is the only viable avenue of prosecution. A. Sex Traf?cking of Children or by Force. Fraud. or Coercion Title I8. L'nited States Code. Section provides For punishment for Whoever kttovt-ingly- I in or affecting interstate or foreign commerce. or within the special maritime and territorial jurisdiction ofthe United States. recruits. entices. harbors. transports. provides. obtains. or maintains by any means a person; or (2) bene?ts. ?nancially or by receiving anything of value. from participation in a venture which has engaged in an act described in violation of paragraph I I knowing. or in reckless disregard of the fact. that means of force. threats ol? force. I?t?aud. coercion described in subsection or any combination of such means will be used to cause the person to engage in a commercial sex act. or that the person has not attained the age ol? l3 years and 1will he caused to engage a commercial sex act. shall be punished as provided in subsection In this section: -11- The term "venture" means any group of two or more individuals associated in fact. whether or not a legal entity. In any prosecotion under Section 1591. the government would be required to prove that (I) the defendant knowingly bene?tted ?nancially from participating in a venture; the acts engaged in by the venture were ill or all?ecting interstate commerce. the venture recruitedt enticed. harbored. transported. provided. or obtained by any means a person. t4) the defendant knew. or recklessly disregarded the fact. that the person was under the age of ei ghteen; and the defendant knew. or recklessly disregarded the fact. tlral the minor would be caused to engage in a commercial sex act. 18 USC. cf: Unirt'cr'?'nrres ?did. 143 Fed. Apps. 938 10th Cir. 2005}. v. Jones. 2007 WL 2301420. at *0 Ga. 200?) (elements ofses trafficking by force are either that defendant ?l knowingly (2) in or affecting interstate commerce (3) recruited. enticed. harbored. transported. provided or obtained. by any means. a person knowing that fraud. force or coercion would be used to cause (5) the person to engage in a commercial sex act; 0R 1 knowingly 12} benet?itted ?nancially from 13) participation in a venture which engaged in or affected interstate commerce and which recruited. enticed. harbored. transported. provided. or obtained. by any means. a person (5) knowing that fraud. force or coercion would be used to cause the person as) to engage in a commercial sex act." tinned .S'rtrres r. Il?ifsrm. 2010 WL 2991561. SD. Fla. 2010). Section I does not require proof that a defendant personally ?recruited. harbored. transported. provided or obtained a person for commercial ses." (Haired States King. 713 F. Supp. 2d 1207'. 1215-1610. Hawaii 2010). Instead. Section simply requires that the defendant ?nancially benet?itred from a venture (either a pimp and a prostitute. several pimps working together. or a pimp and individuals who worked for him (non- prostitutesh which recruited. enticed. harbored. transported, provided or obtained (hereinafter "recruited") a person for commercial sex. In other words. the government would be required to prove that the venture involved a minor who was recruited for commercial sex. but not that the target of this investigation. Backpage. did the recruiting. Only one court a magistrate court opinion from the Southern District of Florida. later adopted by the district court has defined ?reckless disregard" in the contest of Section 150 I. See ll?ii'son. 2010 WL 2991561. at *6 ("?reckless disregard" means ?to be aware of. but consciously and careless ignore. [sic] facts attd circumstances clearly indicating that the person? had not yet achieved the age of majority?). 1The Maison court also added erroneously - an additional element where the government proceeds to prove a violation of Section 1591(ail1l under the mens- rm theory of reckless disregard. 1n lil?fll?t?t?)?, the court esamined Section which was added as part of the 2008 amendments to Section 159] that also added the "reckless disregard" scienter provision to Section The I-I'W'smr court concluded that ?in a prosecution under [Section 1501(a}( l] in which the defendant had a reasonable opportunity to observe the person . . the -13- DOJ-BP-DUMSY 3668 Although "reckless disregard" is also the metro rec: standard required under Title 8. United States Code, Section I334. the Ninth Circuit has also not defined tlte standard in tlte context ofSection 1324.? ??Reckless disregard? has been de?ned bv other circuits [in the contest ofSection 1324] as being aware of facts which. ifconsidered and weighed in a reasonable manner. indicate a substantial and unjustifiable risk that the alleged aliens were in fact aliens and were in the United States unlawfully." See Ninth Circuit Model Jury Instruction government need not prove that the defendant knew that the person had not attained the age of 18." Instead. the court reasoned. Section 59ltcl required the government to prove that the defendant either actually knew that the person had not yet reached the age of majority. or that the defendant recklessly disregarded the person's age and had a reasonable opportunity to observe the person. In other words. ?should the United States choose to establish a violation of Section 159 Ital by showing recklessness. itt addition to the first three elements of Section I??Jlta). it must prove beyond a reasonable doubt both that the defendant recklessly disregarded the person's age and that the defendant had a reasonable opportunity to observe the person.? 2010 WL 290] set. at *s {citing flirted .?t't'ures' Robert ?ox. Case No. This interpretation ?ies in the face of both the plain statutorv language and the legislative historv. Section 150 tc) was added to the statute to cover cases in which a defendant contends that he did not know the victim was under the age ofeighteen. According to the amendments sponsors. i In such cases. the prosecution will be exempted from having to prove beyond a reasonable doubt that a defendant who had a reasonable opportunity to observe the person recruited. enticed. harbored. transported. provided. obtained or maintained knew that the person had not attained the age of 18 years." See l54 Cong. Rec. 10004 (Dec. ID. 2008). The it'll-run court's interpretation would impose a greater burden on the government in cases involving underage victims than in cases involving adult victims who were coerced to commit commercial sex acts. in that it would be insufficient for the government to prove that the defendant acted in reckless disregard ofa minor victim's age ifthe defendant did not have a reasonable opportunity to observe the victim. By contrast. in cases involving coercion of adult victims. reckless disregard alone would be suf?cient. We have found no courts that have followed ll?n'srm' interpretation of the government?s burden for proving reckless disregard. That said. should courts within this district adopt the ll?n?suu court?s additional element. it would tnake proof against Backpage in a [591talt2l prosecution nearly impossible. 4Without any significant discussion. the Ninth Circuit has found the evidence suf?cient to convict a defendant under 324 where the evidence. (I) showed that the defendant ?turned a blind eve toward" the feet in question. 53?) F.3d 994. l003 (ch Cir 2008); (2) ?supportled] an inference that [defendant] either knew or suspected his passengers of having crossed the border illegally but deliberatelv chose not to confirm that suspicion with questions." hinted Stores Salami. 32 Fed. Apps 503. 565-66 (9th Cir. 3003} (Memorandum Disposition). 9.3. Comment {citing Uirfl?cd?'hth r. Zlumgnr. 27! F.3d 1025. l029 I Cir. 200] l. cert. domed. 535 LS. 940 (2002); timed .?t'rutes' fresh-Her!nitride; 908 F.2d 1042. 1046 10111 Cir. 1002)). B. Forced Labor Title 18. United States Code. Section 1589(a} cnniinalizes providing or obtaining the labor or services ol?a person by any one ol?. or any ol?. the following means. i l) by means ot?force. threats ot?Force. physical restraint. or threats ot?physical restraint to that person or another person; (2) by means ofserious harm or threats ot? serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or legal process. or (4) by means ol'any scheme. plan. or pattern intended to cause the person to believe that. il'that person did not pert'onn such labor services. that person or another person would suffer serious harm or physical restraint. Section I also provides for punishment for anyone who . . knowingly benefits. ti nancially or by receiving anything of value. from participation in a venture which has engaged in the providing or obtaining of labor or services by any means of described in subsecrion knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by any such means[.] As with Section ISO 1. the term "venture" refers to any group ot'two or more individuals associated in fact. whether or not a legal entity. In a prosecution under Section the government would be required to prove that Backpage l} knowingly bene?tted from participation in a venture (3) which engaged in the providing of labor or services ol'a person through any ol?the means described in subsection a) ?that is. through three. threats ot't?orcc. abuse or threatened abuse of the legal system. or through any action taken to cause a victim to believe that harm would come to her or others if she did not engage in prostitution and that Backpage knew or recklessly disregarded the [act that such actions were taken to cause the victim to engage in prostitution The challenges ol? such a prosecution are myriad While the government might be able to prove that Backpage ?nancially bene?tted by permitting a particular pimp to post advertisements for a victim who were being forced to engage in prostitution through one ot?the means articulated in the Statute. it would likely be difficult. if not impossible. to show that Backpage knew or recklessly disregarded the circumstances surrounding that particular victim is prostitution activities As set l?orlh above. because the advertisements are posted electronically. rather than in person. Backpage personnel have no interaction with either pimps or their victims. and thus would have no opponunity to t'onn any sort of opinion as to whether a victim is being forced or coerced into prostituting. Indeed. it scents that the only way the government could establish knowledge or reckless disregard would be if? evidence existed showing that Backpage had received some information. from either law enforcement or a concerned citizen. who was aware that a panicular victim was being forced or coerced into prostituting. but nevertheless permitted advertisements for that victim to be posted. The probability ot?dcveloping such evidence seems unlikely at best. As a result. we do not recommend proceeding under a Section ISBQ theory. C. Prosecution Under State Law On March 28. 20 the Washington State Legislature enacted 58625 I. a bill designed to regulate the advertising ot'conimercial sexual abuse ol?a minor. Specifically. 53625! makes it a crime if? an individual ?knowingly publishes. disseminates. or displays. or causes directly or indirectly. to be published. disseminated. or displayed. any advertisement for a commercial sex act. which is to take place in the state of Washington and that includes the depiction ol'a minor." 513625 I. The act further makes it no defense that the publisher did not know the age ol?the minor depicted in the advertisement. unless the publisher can show that it made a reasonable bona tide attempt to ascertain the trtte age of the minor depicted prior to publication. Although it is being hailed as the first ot?its kind. Washington 5362? is will likely fail against a challenge that it violates the federal Communications Decency Act 42 230. The (DA imntuniaes certain interactive computer service providers from liability For state law claims arising from the publication ot'third-partv advertisements. The (DA de?nes interactive computer service as ?any int?onnation service. system. or access software provider that provides or enables computer access by multiple users to a computer server. 42 SC. It provides that provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." that is. any "person that is responsible in whole or in part. for the creation or development of int'onnation provided through the Internet or any other interactive computer service." 42 U.S.C . 230(c)( 1 and (flt3j. Accordingly. a variety of state law claims against internet computer service providers. including Backpage. have been dismissed based on immunity See. tags. .1324. exr'cl. PK. tillage l?oiceilrleditr Holdings. MI. 30?) F. Supp. 2d 104] (ED. M0. 201 we also 'hrcugn ?mmnmee?ir ('ivii' Rights I hitter Lint. Inc. v. lire. fil?} F.3d can ("fill (?it 2003). Gibson t'rttigsl'isr. Inc. 2009 WI. ?04355. at *4 (SD NY. June 15. 2009) There is no apparent reason why this same rationale will not also apply to 3130251 DOJ-BP-OUMSVISEN IV. Proving that Baekpage Violated Section ISQI Proving that Backpagc knowingly "bene?t[tcd] ?nancially" from a ?venture" should not be difficult. Backpage charges for placement of advertisements of"escorts" per advertisement) and "body ruhs? per advertisement). There are a number of cases within tltis district where juvenile victims ho were advertised on Backpage were prepared to. and did in fact. engage in commercial sex. In these cases. there are sufficient facts to show that an individual title. the pimp) knowingly recruited a minor victim. knowing that the victim would engage in a commercial sex act. \?1oreover. proving tltat these ventures affected interstate commerce should similarly not he diffi cult. There are some cases where minor victims were moved across state lines. or used credit cards to post a Backpage advertisement. in connection with commercial ses Moreover. Backpage?s headquarters and its computer servers are located in Arizona The key issue in any Backpage prosecution will be in proving that Baekpage knew. or recklessly disregarded the faet. that the victim was under the age of eighteen and (2) the victim would be caused to engage in a commercial sex act. In order to satisfy this element. the government will likely have to prove that the defendant was aware of facts as to a purticuinr victim that. if considered and weighed ill a reasonable manner. indicated a substantial and unjustifiable risk that the victim was under the age ofeighteen and that the victim would be caused to engage in a commercial ses act. A. Prosecution on a Theory of General Recklessness One possible theory of prosecution would be to assert that as a general matter. Backpage is reckless because so many minors are able to successfully post advertisements. That is. Backpage is aware. by virtue ofthe myriad subpoenas it receives in connection with criminal prosecutions. that minors are ?nding ways to post commercial ses advenisements. and that Baekpage's screens and filters are not effective in preventing such posting. As an initial matter. ifwe decide to proceed with prosecuting a criminal case based on a theory of general recklessness. it will difficult. if not impossible. to prove the venture element of Section 501. To prevail. we tnust show that Backpage financially benefitted front a particular venture involving a minor and commercial ses. However. merely showing that Backpage is reckless. generally. does not satisfy our burden to show that it was reckless with respect to a particular juvenile Second. as described in more detail below. there are significant obstacles to establishing that Backpage is generally reckless. l. Backpage Conducts a Manual Review of Photographs Posted in Advertisements, and Even a Manual Review will not Identify all Juvenile Victims Posted One of the principal ways that Backpage screens for minors on its website is by examining photographs and content of posts However. based on the experience oflaw enforcement. many ofthe minor 45- victims who post on Backpage use photographs of other individuals, usually taken from other websites. These photographs depict individuals who either are. or appear to be. over the age ol? IS Moreover. often it is difficult for trained investigators to conclude that individual depicted is under the age of 18 because images posted often hide or obscure t?aces or other body features that would be useful in determining age. For example. onejuvenile posted images of Four different women over a six tnonth period ot?time hel?ore actually posting an image ol?het?sell?. Several ofthese postings contained photographs containing no depictions ol?the individual?s face. and all of which appeared (to trained investigators) to depiet women over the age of IS. When the victim ?nally posted an image of herselt?. it was still difficult to conclude that she was under the age of IS It was not until she posted a second set of photographs ot'hersell'a week later that investigators believed that she might be under the age of IS. Sec Exhibits 23 through 29 That these images are often stolen from other locations. and often do not contain any depictions ot?the individual's face. make it extraordinarily dif?cult to determine whether the actual poster is under the age oi? IR Accordingly. even a manual review ofall advertisements may not be suf?cient to alert Backpage that a particular poster is ajuvenile. 2. Backpage Entploys an Array onge Veri?cation Protocols Another obstacle to prevailing on a "general recklessness" theory is the fact that Backpage also employs a number of age veri?cation protocols that require a poster to affirmatively con?rm that heishe is over the age of 18. First. there is a general disclaimer for users accessing the "adult entertainment" section ot?Backpage. which prohibits individuals under the age of its from accessing that portion ot?the website. Second. any individual that attempts to post content to the ?adult entertainment" section. must ?agree" that they are above the age of 13. Third. posters are required to input their age when preparing the content of" their post and required to. again. con?rm that hefshe is over the age of 13. Fourth. posters posting For the first time are required to verify hisr'her age by inputting the date ot'birth and name on a screen titled ?Age The system prevents individuals from posting who say that they are under the age of IS in the Age Veri?cation process. Accordingly. Backpage will likely argue that it?the poster was under the age of IS. then Backpage is a ?victim? ot? fraud. In other words. Backpage will likely defend that posters under the age of IS lie to them. and there is no way verifying the age of the poster. Additionally. Backpage. like other classi?ed websites. requires posters to use a credit card. Although once believed to he an el'l?ective tool in preventing minors Front making posts. the credit card requirement is largely believed to be useless in preventing older minors from posting to these websites. 3. Requiring Additional Age Veri?cation Protocols Has Practical and Constitutional Implications -17- In any prosecution. Backpage will likely argue that their age verification protocols are standard throughout the industry. and that requiring additional age veri?cation protocols or procedures is both impractical and a constitutional limitation on free speech .?vlost purveyors of online adult content ?verify" age in a manner sintilar to Back page Generally. they require users or visitors to ?agree" that they are over the age of 18. and often require purchases be made using a credit card as an additional meaSure of age veri?cation As a practical matter. requiring an ottline business to conduct age vetiftcation tsuclt as required by tile .H'ettm'e ll?eeaft'} would bring online business to a halt. as it threatens the very fabric of the Internet. Although some vendors are generating software and mechanisms to further verify age ottline. they are not effective. and in any event. requiring any such procedures has constitutional implications More speci?cally. in 1098. Congress enacted the Child Outline Protection Act (COPA). 42 ?33l'..ree 534 F.3d l8]. [84 (3d Cir. 2008). COPA established criminal penalties for anyone who knowingly posted tnaterial harmful to individuals under the age of IT on the internet for commercial purposes 42 [l C. ?t 23! COPA provided an afft defense for website operators who restricted access to minors by requiring the use ofa credit card. debit account. "adult access code" or "adult personal identi?cation number." a ?digital certi?cate that veri?es age." or "any other reasonable measures that are feasible under available technology.? The ACLU challenged the constitutionality ofthe statute. and after a series of legal proceedings at the appellate court and the Supreme Court. tlte Eastern District of held a bench trial on the merits to the challenge. At 534 F.3d at Ibo. Following tlte bench trial {which was afft rmed on appeal the district court concluded that the statute was unconstitutional. (it. In its findings of fact. the district court found that tltere was ?no evidence of age veri?cation services or products available on the market to owners ofWeb sites that aetually reliably establish or verify the age of lnternet users. Nor is there evidence of such services or products that can effectively prevent access to Web pages by a minor." Id. at [05. Moreover. the district court found that ?Web sites . . . which desire to provide free distribution oftheir information will be prevented from doing so." resulting in an uncottstitutional limitation on free speech. Id. at 190-97. Additionally. the trial court recognized tlte fact that the individual entering age veri?cation information into a web browser is not necessarily the person whose information is being entered. and that while requiring a credit. debit or other payment card to be entered to obtain access might deter a ?ve-year-old. it would be unlikely to deter a motivated teenager. These ?ndings were echoed itt a recent study commissioned by forty-nine state attorneys general. The Internet Safety Technical Task Force expressed ?cautious optimism" at progress being ntade both in the ?eld ofage verification and in technologies that ?lter lnternet content. but concluded that such technology is not perfect. The study also pointed out that almost all of the age-verification technologies that they examined presented privacy and security risks that would have to be weighed against any benefits they provided. -13- DOJ-BP-OOM573674 Notwithstanding. Backpage actually implements at least one of the af? nnative ?defenses" proscribed by the now-invalid COPA provisions. namely the requirement that posters provide a credit card. That requirement. however. has been somewhat compromised by the advent of prepaid credit cards that can be purchased at a variety of retail locations. such as Walmart. Safeway. etc. 4. Posting Data Collected by Baekpage Does Not Indicate that the Poster is Under the Age of Eighteen. Backpage will also likely defend by arguing that even analysis of other data provided or captured during the posting process does not indicate whether a particular poster is under the age of 18. Below is a summary nl?the data that Backpage collects during the posting process. and our analysis ot? some ol?this data. a. Baekpage Data In general, posts to Backpage include text. photos. a telephone number. the posters age {as entered by the poster. see Exhibit 1 and a Post ID. which uniquely identi?es a given post. Posts also often contain links to other posts placed elsewhere on Backpage. Thus. a post for a tractor may link to other advertisements that the user has made to other farm equipment. Backpage ltas the ability to retrieve ?live" posts; that is. posts that are acrively viewable on the Backpage website. Backpage's data retention policy. however. is unknown. although it appears From other child sex traf?cking cases that Backpage maintains postings for a period time and tltey can be retrieved pursuant to a subpoena. Based on review of subpoena responses. we have developed a basic understanding ol'what data Baekpage collects when a individual posts an advertisement. The information Backpage is summarized as follows: a. M: Date of payment h_ Status. Whether the post is active or not. c. Category: Category and subcategory used to post advertisement. such as ?adult entertainment escorts" or "adult entertainment: body rubs" E. Title of advertisement (Exhibit User E-mail address for user who created the account used to post the advenisertient {Exhibit Name. Name provided by poster at the time of payment (Exhibit 9), g. Address: Address provided by poster at the time of payment (Exhibit l1. City provided by poster at the time of payment {Exhibit i. State: State provided by poster at the time of - o- DOJ-BP-ODO4573675 payment (Exhibit j_ Lin. Zip provided by poster at the time of payment (Exhibit k. Phone Phone number provided at the time of payment [Exhibit l. E: IP address from where advertisement is posted; in Card Number Credit card type. number and expiration date; Backpage can retrieve a copy ot?all other "live" posts made using a particular e-mail address auditor telephone number Because Backpage captures additional data digitally in the above-listed series of fields. it is reasonable to expect that Backpage has some search functions that would also allow it to retrieve posts based on other data. such as Credit Card Number and Name. We have not. however. been able to confirm such capabilities. Backpage can also tbllow links on ?live" posts to retrieve those "linked-to posts." Although Back page provides some information regarding payment for the post. the meaning of the information is unclear. It appears. however. that in verifying the payment instrument used to pay for the post. Backpage checks the address provided by the poster to confirm the user?s identity. b. Analysis of Data Collected by Backpage Based on the review of numerous posts in the adult entertainment category of Backpagc. it is clear that the fields of related posts often differ from one another. That is. for posts made using the same e-mail address. for example. there are often material ditTerences in the other provided. such as credit card number. billing address. and IP address. Speci?cally. in one case a poster using the e-tnail address ?tionamarie@gmail.com.? posted five different advertisements one on July 22. 20] I. two on September 4. 20 I. one on January IS. 2012. and one on January 27'. 20 2 Data collected by Backpagc is summarized for each ofthe posts as follows: 5.891 HUM Ut'l mg mp? puoumm 1? PUV ?Ml inning pumL) Ill] 31mm. L5 ll'll 1".5 01p? 1mg aualpyw u? 3111M Iuaf L33E$tr$ It I <31:an ?9113 mumuu?mf Il?nn 3M 3111!; IS 1mm 5 mm: 19 HUGE 1505f: DSHILUI 3 - .L 10H .u inmr if - -5:Iuoag an?. [1";ng ASSVW.) ASSVS ?Wk [Humming Janus- HI 3N 33513:!? nu; ?lusualdL-dmu mupmm {Raga Bl - 13.1mm?) and papImH p.13 {unquung {?ling [x lim?hLJd {uplnuu murmur mumuusu Human?: I I I?f?fx HPIUJ d] aumm :rulltN (H 190d aura The chan above. as well as analysis of other advertisements. shows that there are material differences between posts made by the same user account. For example. the two September 4th posts show that the user paid for two different advertisements. using the same credit card number. but with different test and photos. billing addresses. and addresses. The fact that Backpage is not continuing the billing address (no. street address) is not unusual standard industry practice requires companies to verify generally three data points before approving a credit card transaction: name on the account. billing zip code. and number. Although mosr retailers require additional information. there is no requirement that these separate data points he continued before obtaining approval from a payment processor Although there are a number of material differences indicating fraud (Le. hard fraud indicators}. training and experi ence suggests that this type of variation is common to posts advertising both adult and child prostitution. Nothing about the fact that the poster?s information varies widely from post to post ?indicates a substantial and unjustifiable risk that" the individual depicted is under the age of 18 Indeed. as set out in more detail above. based on training anti experience. it is not clear from examination ofthe photographs that the individual depicted is under the age of 18 That the photographs for a given poster often differ from one post to another is similarly not indicative ofchild prostitution because adult prostitutes often provide ditterent pictures between posts. and both groups ofindividuals often post images without any depictions ofthe person's face 5. Backpage?s Cooperation with Law Enforcement Finally. any prosecution of Backpage would likely have to overcome Backpage's efforts to actively cooperate with law enforcement. Arguably. Backpage's efforts to cooperate with law enforcement generally are not relevant to whether they recklessly disregarded that a particular poster was under the age of but there is a signi?cant likelihood that such evidence would be admissible at trial. To the extent that such evidence is permitted. Backpage will likely trumpet what efforts it has taken to cooperate with law enforcement as evidence that it has not ?disregarded" the risk that ntinors try to post on Baekpage. Indeed. on the contrary. Baekpage has made significant and proactive efforts to assist law enforcement as described above in Section B. Prosecution in a Notice Case Based on our analysis. the roost likely avenue ol'successful prosecution would focus on instances where Backpage has notice of the fact that a particular poster is a minor being offered for commercial sex. This is similar to prosecutions in the Section I324 context. where If agents often notify a business that it is employing undocumented workers. and then make subsequent site visits to determine whether the business continues to employ them after receiving notice. If Back page was notift ed that a particular post was linked to the recruitment ofa minor for commercial sex. but evidence shows that Backpage did not successfully prevent that individual from posting again. we could make a strong case that Backpage consciously disregarded a substantial risk that the posterior the individual depicted) was under the age of 18 That is. if we can identify instances where. despite getting notice that a particular post involved a minor recruited for commercial ses. Backpage permitted thejuvenile to be posted on another advertisement. then this second post would constitute an instance where Backpage ?recklessly disregarded" that an individual recruited for commercial ses was under the age of 18. This theory of prosecution would eliminate Backpage's likely defense that it was "defrauded? by the poster who lied about her age and posted fake pictures; could not tell from the images that the poster was under the age of does attempt to verify the age of the poster in line with the industry standard (including by requiring that posters use a credit card}; and is unconstitutional to require Backpage to implement more sephisticatedfautomated age verification procedttres That said. we would still have to prove that l) Backpage received notice; that the notice clearly indicated to Backpage that the post involved a minor involved in commercial sex; the notice contained suf?cient identifying information to allow Backpage to prevent the samejuvenile from Ire-posting; and (4) that thejuvenile nevertheless managed to re-post the advertisement. There are. however. challenges. to such a ?notice" prosecution First. an undercover investigation based on this theory of prosecution would be unlikely to instigate behavior that could form the basis ofa charge under Section As an initial matter. Section 159] requires the esistence ofa venture. By its very nature in an undercover operation there is no venture (an association between two or more persons who have recruited a minor into sex traf?cking). Thus. an undercover operation will not produce an event that we can charge} "In a general theory of recklessness prosecution (see Section an undercover operation might be useful. We could formulate an undercover operation designed to ?test" Backpage's system to determine whether Backpage's age-related screening features and procedures are elleetive. Such an operation would create ?ctitious postings. followed by notice to Backpage that the postings involve a minor. Agents would then attempt to make subsequent tpost-notice) posting using informatirm linked to the first post (for example. the same credit card. telephone number or e-ntail address) Ifundercover agents are able to successfully make postings after notice is given. this would provide some relevant evidence that Backpage was generally reckless It should be noted that. based on information already provided by Mr. Ferrer and Backpage. it appears that there is a robust amount of screening and blocking takes place today. For example. as explained above. Backpage has agree to block future postings and has worked with NC EC in developing sophisticated processes for reducing illegal posts. Moreover. Backpage has af?rmatively brought postings to the attention of law enforcement This has resulted in the rescue of somejuveniles. indicating that Backpage?s screening process is working and that it is identifying some victims. Second. in order for this avenue of prosecution to be successful, the initial notice would have to be speci?c enough so as to provide Backpage with sufficient information to identify the poster. This would likelv require that the notice included PostlD or other infomtation {such as e-mail address. telephone number. or credit card information) that would allow Backpage to identify any other advertisements for the minor in question. Assuming suf?cient notice, the investigation would have to uncover instances where the minor posted a second time (post- notice) using the same e-mail account, credit card number, telephone number. or possibly photograph. lt?tlte minor re-posted without any one of these commonalities {as between the first and second post). there would be no way to prove that it was the same minor. That is. there must be some strong indieia that the new post was made by the same person who was previously identi?ed as a minor. indeed. ifwe cannot prove that the second posl was hy- the initial poster. then it is unreasonable and likely fatal to criminal prosecution to hold Baekpage responsible for failing to make the same connection. Third. even if we uncover instances where Baekpage continued to permit the minor to post advertisements. the minor would have to have some connection with this district to establish venue While there are certainly a signi?cant number of minors using Backpage in our district. finding an historic notice case might prove difficult. especially given that Backpage has continued to augment its screening and verification protocols. Venue may be more appropriate in Arizona where Backpage is headquartered -34-