[Senate Hearing 114-179]
[From the U.S. Government Publishing Office]
S. Hrg. 114-179
HUMAN TRAFFICKING INVESTIGATION
=======================================================================
HEARING
BEFORE THE
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
OF THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 19, 2015
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Keith B. Ashdown, Staff Director
Gabrielle A. Batkin, Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Laura W. Kilbride, Chief Clerk
Benjamin C. Grazda, Hearing Clerk
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
ROB PORTMAN, Ohio Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
KELLY AYOTTE, New Hampshire HEIDI HEITKAMP, North Dakota
BEN SASSE, Nebraska
Brian Callanan, Staff Director and General Counsel
Margaret Daum, Minority Staff Director and Chief Counsel
Kelsey Stroud, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Portman.............................................. 1
Senator McCaskill............................................ 4
Senator McCain............................................... 14
Senator Heitkamp............................................. 16
Senator Lankford............................................. 17
Senator Ayotte............................................... 20
Prepared statements:
Senator Portman.............................................. 31
Senator McCaskill............................................ 35
WITNESSES
Thursday, November 19, 2015
Yiota G. Souras, Senior Vice President and General Counsel, The
National Center for Missing and Exploited Children............. 7
Darwin P. Roberts, Deputy Attorney General, The Washington State
Attorney General's Office...................................... 9
Alphabetical List of Witnesses
Roberts, Darwin P.:
Testimony.................................................... 9
Prepared statement........................................... 48
Souras, Yiota G.:
Testimony.................................................... 7
Prepared statement........................................... 38
APPENDIX
Staff Report..................................................... 53
Statements submitted for the Record:
A. Brant Cook, Director, Crimes Against Children Initiative,
Office of Ohio Attorney General Mike DeWine................ 249
Karen Friedman-Agnifilo, Chief Assistant District Attorney,
New York County District Attorney's Office................. 253
HUMAN TRAFFICKING INVESTIGATION
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THURSDAY, NOVEMBER 19, 2015
U.S. Senate,
Permanent Subcommittee on Investigations,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:01 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Rob Portman,
Chairman of the Subcommittee, presiding.
Present: Senators Portman, McCain, Lankford, Ayotte, Sasse,
McCaskill, Tester, and Heitkamp.
Staff present: Mark Angehr, Mel Beras, Eric Bursch, Brian
Callanan, Mark Iaskowitz, John Cuaderes, Margaret Daum, Liam
Forsythe, Stephanie Hall, Crystal Higgins, John Kashuba, Amanda
Montee, Victoria Muth, Brandon Reavis, Brittney Sadler, Sarah
Seitz, Molly Sherlock, Kelsey Stroud, Matt Owen, Andrew
Polesovsky, Stuart Varvel, Thomas Caballero, Myles Matteson,
Samantha Roberts, and Chris Barkley.
OPENING STATEMENT OF SENATOR PORTMAN
Senator Portman. OK. Thank you all for being here this
morning. We were waiting until all the documents were
circulated. This hearing will now come to order.
Senator McCaskill and I have called this hearing to address
the difficult but really important subject of sex trafficking.
Over the past 7 months, this Subcommittee has conducted a
bipartisan investigation into how sex traffickers increasingly
use the Internet to advance their trade and to evade detection.
The aim of this investigation is very straightforward. We want
to understand how lawmakers, law enforcement, even private
businesses can more effectively combat this serious crime that
thrives on this online black market.
As Co-Chair of the Senate Caucus to End Human Trafficking
and, maybe more importantly, as someone who represents a State
that has experienced some abhorrent sex-trafficking networks,
and, maybe most importantly, as a father, this is an issue that
I feel strongly about and have worked on over a number of
years.
I have spent time with those dedicated to fighting this
crime and those victimized by it. For victims, the toll of sex
trafficking is measured in stolen childhoods and long-lasting
trauma. For traffickers, it is measured in dollars, often a lot
of dollars. It is a problem that I believe Congress should pay
more attention to.
Precise data is hard to come by because this market exists
in the shadows. But experts tell us that there were as many as
27 million victims of human trafficking last year, including
4.5 million people trapped in sexual exploitation. In the
United States, about 8 of every 10 suspected incidents of human
trafficking involve sex trafficking--80 percent--that is, the
sale of minors or forced sale of adults for commercial sex.
Sex traffickers prey on the vulnerable. The Department of
Justice (DOJ) has reported that more than half of sex-
trafficking victims are minors, and the problem appears to be
getting worse. Over the last 5 years, the leading authority on
child exploitation, the National Center for Missing and
Exploited Children (NCMEC), whom we will hear from later today,
reported an 846-percent increase in reports of suspected child
sex trafficking. NCMEC says that increase is ``directly
correlated to the increased use of the Internet to sell
children for sex.'' That is what this hearing is all about.
Traffickers have found refuge in new customers through
websites that specialize in advertising so-called ordinary
prostitution and lawful escort businesses. A business called
``Backpage.com'' is the market leader in that industry, with
annual revenues in excess of $130 million last year. With a
look and layout similar to the better known Craigslist.com,
Backpage has a special niche. According to one industry
analysis in 2013, $8 out of every $10 spent on online
commercial sex advertising in the United States goes to
Backpage. Some of that advertising is legal work. Much of it is
illegal. A Federal court in Chicago noted this year, from that
Backpage's ``adult services section overwhelmingly contains
advertisements for prostitution, including the prostitution of
minors.''
The public record indicates that Backpage sits at the
center of this online black market for sex trafficking. The
National Center tells us that Backpage is linked to 71 percent
of all suspected child sex-trafficking reports it receives from
the general public through its CyberTipline. So think about
that: 71 percent of all the suspected child sex-trafficking
reports that the center gets are related to Backpage.
According to a leading anti-trafficking organization called
Shared Hope International, ``Service providers working with
sex-trafficking victims have reported that between 80 percent
and 100 percent of their clients have been bought and sold on
Backpage.com.'' It is easy to see why the National Association
of Attorneys General (NAAG) describe Backpage as a ``hub of
human trafficking, especially the trafficking of minors.'' And
we will hear more about that today.
A recent study of press accounts reveals that scores of
serious crimes are linked to Backpage. Shared Hope
International has catalogued more than 400 reported cases of
children being trafficked using Backpage.com across 47 States,
and the Permanent Subcommittee on Investigations (PSI) staff
has identified at least 13 reported cases of child sex
trafficking in my home State of Ohio alone linked to Backpage
over the past 4 years.
On this record, PSI saw a compelling need to better
understand the business practices of Backpage.com, especially
the efforts it takes to prevent the use of its site by sex
traffickers. That seems very reasonable. We thought it might be
simple enough because Backpage holds itself out as a ``critical
ally'' against human trafficking. The company has stated that
is ``leads the industry in its review and screening of
advertisements for illegal activity,'' a process it calls
``moderation.''
Backpage's top lawyer has described its moderation process
as ``the key tool for disrupting and eventually ending human
trafficking via the World Wide Web.'' But Backpage has refused
to turn over documents about this key moderation process that
it touts, as well as other relevant aspects of its business.
Specifically, the company refused to comply with an initial
subpoena issued by the Subcommittee on July 7, saying that it
was overbroad. Senator McCaskill and I then agreed to withdraw
that subpoena and issue a new, more targeted subpoena designed
to accommodate some of Backpage's concerns, but the company
again refused to comply.
Defiance of a Congressional subpoena is rare and it is
serious. Backpage has tried to excuse its noncompliance based
on its sweeping claim of constitutional privilege. The
company's argument is vague, but it can be summed up this way:
Backpage says that the First Amendment to the Constitution
shields it from this investigation of advertising by sex
traffickers because it also publishes some lawful
advertisements that are protected speech.
It is an interesting argument. It has no support in law or
logic. In a detailed ruling on behalf of the Subcommittee,
Senator McCaskill and I explained why Backpage's legal argument
is without merit. We also explained the great care that PSI has
taken to protect any potential First Amendment interest at
stake here. We have made that ruling publicly available today
on PSI's website, and I encourage you to take a look at it.
After overruling Backpage's objections, Senator McCaskill
and I ordered the company and its Chief Executive Officer (CEO)
to produce the documents we asked for by last Thursday,
November 12. That day came and went with no response. The next
day, Backpage again informed PSI that it would not comply. But
at the same time, Backpage made quite a show of producing
certain cherry-picked documents favorable to the company, along
with a 16,000-page pile of material and documents that the
Subcommittee does not need and is not seeking.
We do not think Backpage's response to the subpoena has
been in good faith. It is fine for parties to have legal
disagreements with us about constitutional privileges or the
appropriateness of particular requests. We treat these
objections very seriously. But Backpage has done more than just
raise a legal objection to producing certain documents. Just
last week, Backpage's lawyers told PSI that the company had not
even bothered to look for the documents responsive to the
subpoena which means Backpage does not even know what all it is
refusing to produce, much less why these documents should be
protected by the First Amendment.
PSI was disappointed with Backpage's noncompliance, but we
were not deterred. Through other sources, including a
contractor that Backpage outsourced its ad screening process
to, we sought to learn more about the issues under
investigation. In a bipartisan staff report released today, we
have outlined some preliminary findings and further questions
that need answers. The report reveals that Backpage has had a
practice of editing some advertisements by deleting words and
images before publication. This is important because changing
the appearance of a published ad obviously does not change the
advertised transaction.
The staff report finds that in some cases these editing
practices likely serve to conceal evidence of the illegality of
the underlying transaction. That finding raises some very
serious questions. We want to know more about the purpose and
effect of these editing practices, which is why we issued a
subpoena to Backpage for documents that could tell us whether
and how Backpage deletes text or images that could alert law
enforcement about a crime being advertised. When that failed,
the Subcommittee tried to take the testimony of two Backpage
employees in charge of its moderation practices, but they
refused to testify on the grounds that it might incriminate
them. Nevertheless, we continue to seek documents from Backpage
that would allow us to understand this and other aspects of its
screening process.
In a moment, Senator McCaskill is going to describe our
other findings in greater detail. At the close of today's
hearing, we will address the next steps the Subcommittee plans
to take to enforce the subpoena that Backpage has violated.
I am grateful to our Ranking Member, Senator McCaskill, and
her staff for their shoulder-to-shoulder work with us on this
bipartisan investigation. I would now like to turn to her for
her opening statement.
OPENING STATEMENT OF SENATOR MCCASKILL
Senator McCaskill. Thank you, Chairman Portman, for holding
this hearing, and thank you for the strong working relationship
we have on this Committee.
Four months ago, a 15-year-old girl walked into Cardinal
Glennon Children's Hospital in St. Louis, Missouri, and asked
for help. Along with four other girls between the ages of 12
and 18, she had been sold for sex at truck stops across
Missouri, Florida, Texas, and New Mexico for almost 2 months.
She was lucky to be alive. According to her police report,
another girl traveling with her during those months had died in
her arms.
The 15-year-old girl who walked into Cardinal Glennon, like
the majority of children who are sold for sex in the United
States today, was trafficked using Backpage.com. Throughout the
Subcommittee's investigation, we have received information
indicating that Backpage has built a hugely successful business
in part by posting advertisements of children and other victims
of human trafficking on its website. And despite knowing that
its website has hosted advertisements of children being sold
for sex, Backpage has apparently signaled to its moderators
that those ads should remain on the site.
In April 2012, for example, Backpage initially told its
outside moderators that they should ``fail'' or remove ads
containing references to certain sex acts and words, including
``school girl,'' ``teen,'' ``human trafficking,'' and ``yung.''
Two days later, Backpage reversed that policy. The employee
responsible for moderation issued clarifications regarding the
banned words. He instructed that moderators should no longer
delete ads that use ``young'' or misspellings of ``young.''
Those deletions were capturing too much volume, he explained,
because there were too many legitimate uses of the word to
warrant a removal every time. Instead of deleting
advertisements for services with ``young,'' the Backpage
employee instructed moderators to send the ads to him for
additional review.
We do not know how many, if any, ads were removed following
that additional review. We do know that Backpage instructed its
moderators to be very cautious about deleting ads. According to
the manager of the moderators, ``The definition of underage is
anyone under the age of 18. But for the purposes of making
reports, we err on the side of caution and try to report anyone
that looks under the age of 21.'' Importantly, guidance from
Backpage emphasized, in all capital letters, ``IF IN DOUBT
ABOUT UNDERAGE: the process for now should be to accept the
ad,'' and ``ONLY DELETE IF YOU REALLY VERY SURE PERSON IS
UNDERAGE.'' That was in all caps.
The result of Backpage's guidance of course, is the site
contains innumerable advertisements for sexual transactions
with children. The National Center for Mission and Exploited
Children, for example, reports that 71 percent of the child
sex-trafficking reports it receives involve ads posted on
Backpage. And according to Shared Hope International, service
providers working with child sex-trafficking victims have
reported that between 80 percent and 100 percent of their
clients have been bought and sold on Backpage.com.
We have also learned that Backpage has failed to preserve
information that would help law enforcement and other entities
locate victims and put pimps and traffickers in jail. Backpage
has also failed to implement other free, widely available
technologies that have helped law enforcement build cases
against suspected sex traffickers. Moreover, Backpage
representatives and third-party consultants have informed the
Subcommittee that Backpage moderators edit and delete content
in ads in ways that may conceal evidence of illegal activity
from law enforcement.
The Subcommittee has also found that Backpage's business
model has been highly profitable. Based on information obtained
by the Subcommittee, Backpage had net revenue of $135 million
in 2014 and is expected to net more than $153 million this
year--nearly all of it profit. The company's fair market value,
taking into account its lack of marketability, is approximately
$430 million. As a former sex crimes prosecutor, I know that
behind these cold financial statistics are survivors
traumatized from abuse and degradation and families suffering
through years of terror and uncertainty concerning the fate of
their loved ones.
Today I hope to hear from our first witnesses about the
impact of Backpage on the efforts of law enforcement officials
and advocacy groups to curb sex trafficking in the United
States. I am confident that their testimony will make clear the
importance of Subcommittee efforts to press Backpage for
information on its operations and procedures.
I also hope that we will at some future date finally have
the opportunity to question Backpage CEO Carl Ferrer who
received a subpoena to appear before the Subcommittee today but
has refused to attend. I have many questions for him.
I thank the witnesses for being here today, and I look
forward to their testimony.
Senator Portman. Thank you, Senator McCaskill, and thank
you for your partnership in this investigation.
Senator McCaskill mentioned the report. Without objection,
the staff report\1\ and some associated correspondence are
ordered to become part of the record.
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\1\ The Majority Staff Report appears in the Appendix on page 53.
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Senator Portman. With this, we are going to turn to our
first panel of witnesses and then have the opportunity for
Members to ask questions.
We are pleased to be joined by Yiota Souras. Yiota is
Senior Vice President and General Counsel (GC) of the National
Center for Missing and Exploited Children, the group we have
been talking about, the Nation's leading authority and resource
on issues related to missing and sexually exploited children.
For over 30 years, NCMEC has provided valuable services to law
enforcement and the criminal justice community with the goal of
eliminating child sexual exploitation and reuniting families.
It has assisted law enforcement in recovering over 200,000
missing children, including assisting with the rescue of a
missing child in Cleveland, Ohio, just earlier this month. We
appreciate what you do.
I am also honored to have with us today the founder of
NCMEC. Many of you know John Walsh, who is here with us in the
room this morning, who has been a good adviser to me and to
this Subcommittee.
We are also pleased to be joined by Darwin Roberts. Darwin
is the Deputy Attorney General with the Washington State
Attorney General's Office where he supervises the Criminal
Justice Division, among other units, and is the office's lead
attorney for human-trafficking issues. The State of Washington
has been recognized as a leader in its efforts to combat human
trafficking due in large part to the work of the State AG's
Office. The Polaris Project, a highly regarded national anti-
trafficking organization, gave Washington the highest ranking
for its anti-trafficking efforts last year. From 2005 to 2013,
Mr. Roberts also served as an Assistant U.S. Attorney.
We appreciate both of you being here this morning. We look
forward to your testimony.
Without objection, we are also going to make part of the
record the written testimony submitted by Brant Cook,\2\ who is
the Director of Ohio Attorney General Mike DeWine's Crimes
Against Children Initiative. Ohio has also been at the
forefront of this issue under the leadership of former Senator
Mike DeWine.
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\2\ The prepared statement of Mr. Cook appears in the Appendix on
page 249.
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Senator Portman. We are also going to, without objection,
make part of the record the testimony of the Chief Assistant
District Attorney for Manhattan\3\, who has also been engaged
and involved in this issue with us and the Subcommittee.
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\3\ The prepared statement of Ms. Friedman-Agnifilo appears in the
Appendix on page 253.
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Senator Portman. To the witnesses, it is the custom of this
Subcommittee to swear in all witnesses, so at this time I would
ask you both to please stand and raise your right hand. Do you
swear that the testimony you are about to give before this
Subcommittee will be the truth, the whole truth, and nothing
but the truth, so help you, God?
Ms. Souras. I do.
Mr. Roberts. I do.
Senator Portman. Let the record reflect the witnesses
answered in the affirmative. All of your written testimony will
be printed in the record in its entirety. We ask that you try
to limit your oral testimony to 5 minutes.
Ms. Souras, we will hear from you first.
TESTIMONY OF YIOTA G. SOURAS,\1\ SENIOR VICE PRESIDENT AND
GENERAL COUNSEL, THE NATIONAL CENTER FOR MISSING AND EXPLOITED
CHILDREN
Ms. Souras. Thank you. Chairman Portman, Ranking Member
McCaskill, and Members of the Subcommittee, I am pleased to be
here this morning on behalf of the National Center for Missing
and Exploited Children.
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\1\ The prepared statement of Ms. Souras appears in the Appendix on
page 38
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Let me take a moment to thank you for your efforts to
investigate the crime of child sex trafficking and potential
solutions to combat this horrible crime. I am joined today by
NCMEC's co-founder, John Walsh, and our incoming CEO, John
Clark, former Director of the U.S. Marshals, who are here with
me to underscore NCMEC's support for the Committee's work and
our dedication to preventing child sex trafficking and
assisting survivors and their families.
We are here to talk about the online lucrative sale of
America's children for sex, which in our experience occurs most
prominently on the website Backpage.com. Every year in the
United States, thousands of children are sold for sex and
repeatedly raped. Child sex trafficking victims are boys,
transgender children, and girls. We see victims as young as 11
years old, with an average age of 15. Many of these children
are moved constantly from city to city, sold for sex up to 10
times a day, and tattooed by their traffickers, literally
branded for life.
Child sex trafficking is the rape of a child in exchange
for something of value. Buying, selling, or facilitating the
sale of a child for sex is always illegal. Child sex
trafficking is not prostitution, and it has no relation to
legal sexual activities between consenting adults. When NCMEC
talks about child sex trafficking, we are talking about illegal
activity that is not protected by the First Amendment.
Technology has fundamentally changed how children are
trafficked. Today an adult can shop from their home, office, or
hotel room, even on a cell phone, to buy a child for sex. There
are advertising websites, notably Backpage, that are online
marketplaces to buy and sell sexual experiences. Some may be
legal, but most are not.
NCMEC operates the CyberTipline, the Nation's reporting
mechanism for suspected child sexual exploitation. Since 1998,
we have received over 45,000 reports relating to suspected
child sex trafficking. A majority of these reports involve ads
posted on Backpage.
In our experience, child sex trafficking often begins with
a missing child. So far this year, more than 1,800 missing
child cases reported to NCMEC have involved possible child sex
trafficking. Because there are so many child sex-trafficking
ads on Backpage, our staff search Backpage first when a missing
child is at risk for being trafficked.
At NCMEC, we routinely work with online companies to help
them make sure their websites are not misused to harm children.
We met with Backpage at their request after they started
voluntarily reporting some ads to us in 2010. During this time,
Backpage publicly represented that it wanted to do everything
possible to stop child sexual exploitation on its website.
At our last meeting, in 2013, Backpage was frustrated with
NCMEC for not promoting their asserted efforts to curb child
sex trafficking. We have not met with Backpage again because it
seemed they were more interested in trying to publicly claim a
partnership with NCMEC on these issues rather than reducing the
sale of children on their website.
During our meetings with Backpage, we recommended many
steps they could take to reduce the possibility children would
be sold for sex on their website. Backpage declined to adopt
most of these recommended measures. Here are just two examples.
Backpage does not consistently remove ads it has reported
to NCMEC, even when the ad is reported by a family member of
the child, begging for assistance. Here is a report and what
one Mom and Dad wrote to Backpage: ``Your website has ads
featuring our 16-year-old daughter . . . posing as an escort.
She is being pimped out by her old boyfriend, and she is
underage. I have emailed the ad multiple times using your
website, but have gotten no response. . . . For God's sake, she
is only 16.''
We raised this issue repeatedly during our meetings with
Backpage, but were never told why some ads remained live on the
site after being reported.
Backpage also has more stringent rules to post an ad to
sell a pet, a motorcycle, or a boat. For these ads, you are
required to provide a verified phone number. Even though
Backpage knows its site is used for child sex trafficking and
after our repeated recommendations, Backpage still has not
implemented any form of verification to post an escort ad.
Today Backpage still voluntarily reports some child sex-
trafficking to NCMEC, but they have not taken basic measures to
disrupt the online marketplace of sex trafficking they have
created.
There is no reason to believe suspected child sex-
trafficking ads on Backpage have decreased. However, Backpage's
number of reports this year has shrunk to less than half the
number of reports in 2013, the same year we had our last
meeting and the same year NCMEC filed an amicus brief in
support of child victims in the lawsuit against Backpage.
Before I close, I would like to acknowledge the tremendous
efforts of many other advocacy groups, many of whom are here in
the room today, and the attorneys who are working on civil
court cases in Massachusetts and Washington to end the
devastating online business of selling children for sex on
websites like Backpage.
Mr. Chairman and other Members, I thank you for the chance
to share this information regarding child sex trafficking and
Backpage, and I am happy to answer any questions you may have.
Senator Portman. Thank you, Ms. Souras.
Mr. Roberts, we would now like to hear from you.
TESTIMONY OF DARWIN P. ROBERTS,\1\ DEPUTY ATTORNEY GENERAL, THE
WASHINGTON STATE ATTORNEY GENERAL'S OFFICE
Mr. Roberts. Good morning, Chairman Portman, Ranking Member
McCaskill, and Members of the Subcommittee. Thank you for the
opportunity to appear here today. I am appearing on behalf of
Attorney General Bob Ferguson, who appreciates the invitation
and regrets that he was not able to come here in person.
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\1\ The prepared statement of Mr. Roberts appears in the Appendix
on page 48.
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I am proud to be here representing Washington State, which
has been recognized as a leader among the States in fighting
human trafficking at the State level. We were the first State
to make it a crime to commit human trafficking at the State
level, and, of course, our State definition of ``human
trafficking'' matches the Federal in that the use of force,
fraud, or coercion for forced labor, involuntary servitude, or
commercial sex acts is classified as human trafficking. And, of
course, the commercial sexual abuse of a minor is any use of a
minor in a commercial sex act, because minors are recognized as
not being able to consent legally to engage in any sort of sex
act with an adult, much less a commercial one.
While we appreciate the Chairman's credit to the Attorney
General's office for the work we have done, I think I would be
remiss if I did not emphasize that we have an entire community
of folks doing really good work in Washington State, and if it
were not for all of our partners in law enforcement, the
nonprofit community, and other government agencies, we would
not be close to where we are today.
Washington has had the experience of becoming involved in
litigation with Backpage.com in the course of our efforts to
prevent the use of the Internet for human trafficking and the
commercial sexual exploitation of children. In 2012, the State
of Washington passed a law that aimed to criminally punish any
person who, using the Internet, ``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 of a minor.''
Backpage.com led a challenge to this law before it could be
implemented. The Attorney General's office attempted to defend
the law in court, but the U.S. District Court in Seattle ruled
that the law would be enjoined on the grounds that it was
unconstitutionally vague under the First Amendment and also
likely preempted by the Communications Decency Act (CDA).
Almost simultaneously with this ruling by the U.S. District
Court, though, a lawsuit was filed in Washington Superior Court
in Pierce County Tacoma alleging that Backpage, in fact, had
done more than just be a site that hosted the posting of ads,
as they claimed in order to invoke their immunity under the
Communications Decency Act. In that case, several minors who
alleged that they were, in fact, prostituted using Backpage.com
sued, alleging that Backpage had essentially, by several means,
including making themselves a market leader--in other words,
the go-to site for online prostitution ads--by using terms like
``escorts,'' euphemisms widely recognized as telling consumers
that prostitution is the kind of service that they could
purchase on this website, and by using what the plaintiffs
terms ``sham efforts at self-policing'' to allegedly try to
keep ads for underage individuals off the site, that by doing
this Backpage.com had moved beyond the mere facilitation or
posting of the ads and, in fact, itself was materially
contributing to the use of its site to sell minors for sex.
Our Attorney General's office filed an amicus brief in
support of these plaintiffs when their case went to the
Washington Supreme Court, and on the posture of the Backpage's
initial motion to dismiss, we argued that, in fact, the
plaintiffs should be allowed to conduct discovery to determine
whether Backpage was materially contributing as the plaintiffs
alleged. The Washington Supreme Court this fall ruled in favor
of the plaintiffs, and that case is now proceeding to
discovery.
We are aware that in the court of this litigation and
others, Backpage.com has repeatedly asserted that law
enforcement is best helped if Backpage remains open as a
website for the posting of adult services-type ads and works
with law enforcement, as they put it, to try to prevent minors
from being trafficked using their site. These commitments sound
positive as stated by Backpage, but the Washington State
Attorney General's office and others is not at all certain
whether these commitments are at all sufficient to do the kind
of work necessary to prevent individuals from being trafficked
on the site.
During this entire period, even as Backpage has said this,
there have been repeated, numerous instances of children being
trafficked on Backpage, as Ms. Souras just cited. So the
question for the Attorney General's office is: What is Backpage
doing? What are their goals? How effective are their
techniques? Are they doing everything they can? Is there more
they could be doing? What are the costs of their compliance to
them internally relative to the significant revenues, as the
Subcommittee cited, that they are making off these ads?
So for all of those reasons, the Washington State Attorney
General's office hopes that Backpage.com will respond to the
Subcommittee's subpoena and will shed more light on how exactly
it claims to be working to prevent the sex trafficking of
minors.
Thank you, and I would be happy to answer any questions as
well.
Senator Portman. Thank you, Mr. Roberts. I appreciate both
of you for your testimony. Your perspective is really valuable
to the Subcommittee, and I think we are going to have some very
interesting dialogue now.
We are going to begin with 5-minute question rounds so that
every member has got an opportunity, and we will go as many
rounds as necessary to get the questions answered.
I would like to start with just making the statement that
it appears from what both of you have said that technology has
fundamentally changed the way children can be victimized
through sex trafficking. That is the fundamental truth that we
are hearing here, and it is something the Subcommittee
certainly found, and you can see that in our report.
Ms. Souras, let me start with you. I, as you know, have
deep concerns about this notion of editing advertisements, and
we have had in our report, as you will see, some evidence of
that. Let me ask you first, how prevalent are advertisements
for sexual exploitation of minors on Backpage.com in your
experience?
Ms. Souras. Mr. Chairman, as I testified to a few moments
ago, Backpage actually is the first place that NCMEC searches
when we have a missing child case where there is suspicion that
the child is being trafficked. That is because even though the
child may also have a trafficking ad on another site, they will
always have a trafficking ad on Backpage if they are being
trafficked. So between that and then the numbers of reports
that we have received, as I mentioned, over 45,000 reports of
child sex trafficking, with a predominant number of those
either from the public or otherwise being reported on Backpage
ads, it is clear to NCMEC that Backpage really is the primary
marketplace online for these ads.
Senator Portman. You said over 70 percent of all suspected
child sex-trafficking reports that you receive on your
CyberTipline are related to Backpage?
Ms. Souras. From the public, that is correct.
Senator Portman. Amazing. On the subject of underage
victims, I want to turn your attention now to one of the many
emails our investigation has uncovered. This email is from the
company that Backpage used to outsource the job of screening
its advertisements. It is a process, as I said earlier, that
Backpage calls ``moderation.'' In the email, that company
instructs moderators who had the job of reviewing and editing
the ads, including how to handle ads for victims that look
underage, the ad instructs moderators--and I have got this
here. You can find it, by the way, if you want to look in the
appendix to the report on page 122.
The email instructs moderators that if they are in doubt
about underage, the process should be to accept the ad. The
process should be to accept the ad if you are in doubt.
It also cautions moderators that they should ``only delete
[ads] if you [are] really sure [the] person is underage.'' It
seems to me there is a bias there, but let me ask you, Ms.
Souras: Does it sound like instructions a company would give if
it was really concerned about everything it could do to keep
kids off the Internet?
Ms. Souras. No, absolutely not. If a company really has a
sincere interest in trying to deter and remove child sexual
exploitation, including child sex-trafficking content, from its
website, then it will undertake a number of preventative
measures early on, and it also will deal with ads such as that
likely will be picturing children or minors. It will not allow
that content up, and it will report that content as well. It
will not take a half measure such as noted here.
I will add, just glancing at this email, this is very
similar to what Backpage had told NCMEC was part of its
moderation process regarding children that, quote-unquote,
might appear to be young.
Senator Portman. As we talked about, Backpage has a
practice of editing images and text out of certain ads before
they publish them. One of the obvious concerns I see here is
that when you edit an ad and change its wording, of course, you
are not changing the underlying transaction. You do not change
the potential for the underlying crime that is being committed.
I have a few questions for you. To start, were you aware
that Backpage moderators edited ads in this manner?
Ms. Souras. We had had previous conversations with Backpage
regarding the editing of ads as it pertained to photographs. We
do not recall any discussions with Backpage about moderators
actually editing text of the ads. We had been told by Backpage
that when an ad came in, often with multiple photographs, if
there was a photograph that they deemed to be a violation of
their terms of service, containing nudity, for instance, or
graphic sexual activity, that photograph would be pulled, and
then the ad would move forward into the posting process.
Senator Portman. So let us assume that the evidence that we
have uncovered is accurate and there is this kind of editing.
What concern does that practice give you?
Ms. Souras. It is incredibly troubling, Mr. Chairman, as
you noted, on a number of grounds. One is that it definitely
obfuscates the illegal activity that is the intent of that ad.
If somebody is posting an ad and saying this is a 15-year-old
or providing other information that it is a minor who is being
sold for a sex act and Backpage merely strips the age component
out or whatever the other indicia of youth might be, or being a
child, that is definitely, as you noted, hiding the crime
before it goes public.
To me, also, from a legal standpoint, it could very much
create concerns about whether Backpage is still in its
publisher category or is it shifting now into becoming a
creator in some ways of these ads as well.
Senator Portman. I would just say my time is coming to an
end, but I also think it makes it harder for you to find these
kids. It is harder to rescue children, because when you do not
have the full ad, when they are giving you this edited version
rather than the complete record of the ad, including the photo
and all the original text that might have existed prior to the
editing which would help you, it makes it more difficult for
you to rescue these kids. Isn't that accurate?
Ms. Souras. That is absolutely correct. If we are able to
receive all the photographs and all the text, the additional
information, whether it is a photo that might include the face
of the child, which could obviously benefit greatly the
identification of that child, or other information such as a
phone number or an email address that is in the original ad
that might have gotten stripped by the Backpage moderator, that
sort of information is crucial for law enforcement to rescue
that child and also to pursue the individual that is selling
that child for sex.
Senator Portman. Thank you, Ms. Souras. Senator McCaskill.
Senator McCaskill. Can you explain, Ms. Souras, your
testimony that there are more stringent posting rules for
selling a motorcycle than selling a 12-year-old?
Ms. Souras. I really have no explanation for that, Senator.
It is what we were told when we met with Backpage. It is what
is the reality of how you go about posting an ad currently.
During our meetings between 2010 and 2013 with Backpage, we
constantly asked there to be some form of Know Your Customer,
at least know who the individual is in that ad, knowing the
high incidence of child sex-trafficking ads on that website. We
pointed out the fact that they are able to do this on other ad
sections, such as pets and motor vehicles. And we did ask why
they could not incorporate that element into their escort ads
as well. We never received a satisfactory answer.
Senator McCaskill. What was their answer? What excuse did
they have?
Ms. Souras. They often would say they would look into it,
they would discuss it at the next meeting, it would be re-
raised at the next meeting, and it would be as if it was the
first time we were raising the issue. There was never a
satisfactory response.
Senator McCaskill. So the sex ads are the only place where
they do not require verification?
Ms. Souras. I have not looked at all the other ad
categories. We have done, obviously, a lot of deep-dive
research on the escort ads themselves, and we have noted
variations between ads. But there are many categories of items
for sale--apartments for rent, jobs, et cetera. So I cannot
answer that with specificity.
Senator McCaskill. That brings me to my next question. Have
you all done the math? And maybe the staff is busy working on
this. What percentage of the ads on Backpage are sex-related
versus the other kinds of advertisements that they pretend they
are interested in?
Ms. Souras. NCMEC has not. I know other groups have done
research on the ads that are on Backpage. NCMEC is really
responsive to our cases, so when we receive a child sex-
trafficking report, an exploitation report, we go to Backpage
on that report. Similarly, when we have a missing child case
where the child may be trafficked, we go to Backpage for that
child.
Senator McCaskill. It appears that they are engaging--and,
of course, we are trying to find out. That is what this is
about. We are trying to find out the facts. It appears that
this is a very important part of their business model because I
do not think anyone could say this is not high risk. So if you
are engaging in high-risk activity, it is usually because it
has a great deal of impact on the bottom line.
Let me ask you, Mr. Roberts, as I said, this hearing is not
about reaching conclusions about Backpage, about what they have
or have not done. Instead, it is about affirming the legitimacy
of this investigation and the legitimacy of the questions that
we are asking and that we demand answers to as the U.S. Senate.
In fact, in your amicus brief that you filed with the
Supreme Court of Washington--both in your amicus brief and the
NCMEC amicus brief--you explain the importance of receiving
much of the same information that we are seeking. You stress
the records of Backpage's ad screeners and its protocols for
creating an ad, screening for and rejecting ads offering
children, and flagging and banning repeat offenders.
Can you explain why it is so critical for anti-trafficking
efforts for Backpage to produce this kind of material and why
our efforts to get this material is so essential and why we
should spare no procedural effort to get at these facts?
Mr. Roberts. Absolutely, Senator, and thank you again for
making this effort. Without understanding what is going on, we
cannot understand whether they are putting in sufficient effort
to solve the problem. And, again, because Backpage continually
invokes their own efforts to block children from being
advertised on their site as the reason that they should be
allowed to continue operating freely in this area, even as they
litigate vigorously to protect themselves from laws and
lawsuits that might hold them accountable, that attempt to hold
them accountable for having trafficked children on their
website they invoke these protections. So we need to know
precisely what these protections are. What are they doing? How
significant are they relative to the overall volume of
Backpage's business?
I think it is important for regulators and members of the
public to assess how much is Backpage putting into compliance.
I mean, if this is a tremendously profitable business for them,
what is an appropriate amount for them to spend trying to keep
children from being sold for sex?
Senator McCaskill. They are claiming protection under the
law while refusing to give the people who represent the law the
facts that would, in fact, support their claim.
Mr. Roberts. Right, and that is obviously----
Senator McCaskill. They are basically saying, ``You should
trust us. We are not going to give you any information.'' Has
Backpage ever produced the documents the National Association
of Attorneys General requested of them in 2011 and 2012? Has
that information ever been produced?
Mr. Roberts. I do not believe so, Senator.
Senator McCaskill. Thank you, Mr. Chairman.
Senator Portman. Senator McCain.
OPENING STATEMENT OF SENATOR MCCAIN
Senator McCain. Thank you, Mr. Chairman. And I want to
thank all Members for their involvement in this really
distasteful issue but one of transcendent importance. I would
like to especially thank Senator Heitkamp for her significant
involvement and advocacy for the children on this really
unsavory, unpleasant aspect of America that seems to have grown
over time with the ability to use technology.
Mr. Chairman, I have been a Member of this Subcommittee for
many years. I have never known of a witness to refuse a
subpoena, and I am sure that you will take the necessary action
to ensure that that is not done with impunity. And I applaud
you for your actions.
This is all about money, isn't it, Mr. Roberts? Eighty
percent of their revenue for Backpage can be directly derived
from their commercial sex advertising? We are talking about
money, aren't we?
Mr. Roberts. It appears so, Senator.
Senator McCain. And this is the most egregious example of
that, but it goes on with other websites around the country.
This just happened to be the most egregious. In fact, two
Federal courts have reached the conclusion that they are in
violation of law.
What do we need to do about the whole situation, which is
to some degree the result of increased technology and means of
communication? What do we need to do?
Mr. Roberts. It is a very complicated question, sir. I can
tell you about some of the efforts that are taking place. The
King County prosecuting attorney's office, which is the
prosecuting attorney for Seattle, the largest office in the
State of Washington, is doing some real cutting-edge work in
this area.
Senator McCain. What about the U.S. Attorney General?
Mr. Roberts. It has been a couple years since I was with
the Justice Department, sir. I know that at least in Washington
State the Department of Justice----
Senator McCain. So you do not know of any Federal active
engagement? Do you, Ms. Souras? Do you know of any?
Ms. Souras. No, sir, I do not.
Senator McCain. So you do not know of any priority with the
Attorney General of the United States?
Ms. Souras. I am not aware of any at this time.
Senator McCain. Mr. Chairman, maybe one of the results of
this hearing could be to increase the priority of this issue
with--since it is a national issue.
Please proceed, Mr. Roberts.
Mr. Roberts. Senator, I was just going to mention that our
local prosecuting attorney's office is working on a project
that seeks to inhibit the online demand for persons seeking
sex, particularly with minors, by placing targeted
advertisements online. In the same way that Backpage apparently
seeks to become the first search result when someone searches
for an adult services-type ad online, the prosecuting
attorney's office is placing ads that ask people, ``Do you
really want to be buying sex?'' and try to expose them to some
of the negative effects that take place when they participate
in the commercial sex economy, describing that women often are
not there willingly, that there is a great deal of
exploitation, violence, harm, trauma that comes from these
efforts. And that has been supported in part by grants from
private sources, and we believe it has some potential to
hopefully make some impact.
Senator McCain. So the fact that this has such a
devastating effect is the hook, really, that should lead to
every attempt being made to stop this evil.
Mr. Roberts. Yes, sir.
Senator McCain. I thank you, Mr. Chairman, and I hope that
maybe we could, all of us on this Committee, maybe send a
message to the United States Attorney General that we need some
priority on this issue.
Thank you, Mr. Chairman. I thank the witnesses.
Senator Portman. Thank you, Senator McCain, and good point.
Senator Heitkamp.
OPENING STATEMENT OF SENATOR HEITKAMP
Senator Heitkamp. Thank you, Mr. Chairman and Ranking
Member, for this very important hearing. In the halls of
Congress, we frequently represent and talk about some of the
most powerful people in America, what we are going to do with
the large banks, what we are going to do, and today we are
talking about the most vulnerable people in America, small
children, basically being exploited, being captured, and being
sold as sex slaves. What could be more horrific than that?
And we are told by an organization like Backpage.com that
they are doing everything, they are trying as hard as they can
to prevent this horrible thing from happening to children. I
think today we are saying, ``You need to try harder. And if you
were truly trying as hard as what you could, if you truly
cared, you would be in this room with us talking about how we
could, in fact, attack this problem.''
They are not in this room because they are not in this
fight with the rest of us. They are not here to protect
children. They are here to make money, as Senator McCain talked
about.
And I want to just kind of tell you what we are seeing in
North Dakota, because a lot of people think that this is
something that is removed, it is a city issue, it is something
that big cities experience. But in North Dakota, this issue has
hit us, and it has hit us hard, because Backpage.com allows it
to be invisible. There is nobody walking the street corners. It
is invisible.
And so just yesterday, to give you a sense of where we are,
just yesterday 69 new ads for ``escorts''--and I put that in
quotes--posted on Backpage in North Dakota alone. Sixty-nine.
And I want to tell you a story. Earlier this year, a 14-
year-old Las Vegas runaway was rescued from traffickers in
Minot, after her mother saw emails in her inbox, her email
inbox, basically advertising her, answering an ad that had been
posted on Backpage.com.
Last summer, right across from Fargo, North Dakota, in
Moorhead, Minnesota, the local law enforcement officials
responded to a posting on Backpage.com and found a 13-year-old
runaway from Minneapolis who had been trafficked for sex.
Now, are we to assume that these are the only minors who
ever appeared in North Dakota on Backpage.com? Well, you would
have to be quite naive and foolish to assume that is the fact.
And you would have to be quite naive and foolish to believe
that we really have a partner in solving this problem at
Backpage.com. We do not have a partner there. We have somebody
who is, I believe, not participating in solving this problem
but, in fact, capitalizing and becoming filthy rich--and I use
the word ``filthy'' honestly--filthy rich on Backpage.com.
So one of the issues that I want to explore in the time
that I have left is basically the issue of metadata, because we
have talked a little bit about, scrubbing the ads, rewriting
the ads. But it is my understanding that metadata is also being
scrubbed off these ads, which then eliminates some opportunity
for actually tracing back to the source where these ads are.
And this is a question for either one of you to explain how
metadata is being treated on Backpage.com as it relates to
escort advertising.
Ms. Souras. Senator, your understanding is correct. When
NCMEC receives a Backpage ad that has been reported, there is
not metadata in back of that ad. Metadata, like an Internet
Protocol (IP) address or other types of electronic data
information, is incredibly relevant and important as far as
identifying location, geographic location, and other types of
information that may be pertinent to connecting the individual
who took that photograph with the actual photograph and the
location of that individual. Without that information, it is
often very difficult for NCMEC, certainly for law enforcement,
to start to connect that child to that photo.
Senator Heitkamp. Do you see metadata being removed from an
advertisement for a car or anything else on Backpage? Do they
take the metadata off those ads?
Ms. Souras. We do not see those ad photos in the same way,
so that would be a difficult question for me to answer.
Senator Heitkamp. OK. Mr. Roberts.
Mr. Roberts. In response to the Senator's question, I would
just add metadata can be especially important in trafficking
prosecutions because what a lot of people do not realize----
Senator Heitkamp. I think we all understand how important
it is. Would there be any legitimate business purpose for
removing metadata from the advertisement? Commercial purpose?
Ms. Souras. It is storage intensive, so there is an
investment that might be required of servers and----
Senator Heitkamp. And storage is so expensive these days,
right?
Ms. Souras. It is getting cheaper.
Senator Heitkamp. Yes, it is very cheap. And so let us not
pretend that this is about storage, quite honestly.
I know I am out of time, but I want to give a shout-out to
a great partner who has put her reputation and has been a great
partner to the National Center for Missing and Exploited
People, and that is Senator McCain's wife, Cindy McCain, who
has been absolutely a champion and I think has done more to
raise the issue of Backpage than almost anyone else in this
country. And so she is a great partner to have and a fierce
champion for children in this country. And so we are grateful
that even though she is not at this dais, she is definitely
here with us today as we address this issue.
Senator Portman. Thank you, Senator. She was here in the
form of her husband, and when I asked Senator McCain whether he
could come by today, he immediately said, ``Of course I am
going to come because of Cindy.'' And she has been great in
raising awareness for this issue. I have spoken with her at
conferences, and she has spent a lot of time and effort
internationally as well as here in this country on this issue.
Senator Lankford.
OPENING STATEMENT OF SENATOR LANKFORD
Senator Lankford. Well, thanks for the work. Thanks for all
you are doing. As a Dad of two daughters, this is important to
me, as it is important to everyone else on this dais, as it is
important to the Nation. This is an issue that has to be
confronted. This is a dark spot in our country that we have to
be able to both shine light on and to be able to deal with in
the days ahead. So I appreciate what you are doing because I
can only imagine it is very difficult, hard work, and it is
painful to be able to see the images and be able to walk this
through with a lot of families. So just from us to you, thank
you for what you are doing for a lot of families around the
country.
What is the cost of one of these ads on Backpage? How much
is a child worth nowadays to run on an ad?
Ms. Souras. Senator, Backpage rigorously calibrates its ads
according to the geographic location. So in some large cities,
like Manhattan, in New York, an ad can go for upwards of $18 or
more--Boston, Miami, et cetera. In a smaller town, they will
calibrate lower to satisfy the customer demand there to a few
dollars.
Senator Lankford. So a child ad could be a few dollars, or
it could be $18 or $20?
Ms. Souras. To purchase the ad, yes.
Senator Lankford. To purchase the ad, right, to be able to
put this up, to be able to get this service online.
Ms. Souras. That is correct.
Senator Lankford. So Backpage is obviously not the first
that has dealt with this. Other locations have, other websites
have. Give me an example of other websites and how they have
dealt with this and how they have responded once they learn
that child sex trafficking is happening on their site. How have
other entities responded?
Ms. Souras. Most entities deal with this issue, and as we
know, almost anything can go up on the Internet.
Senator Lankford. Correct.
Ms. Souras. So everyone is subjected to this threat.
However, what a responsible corporate entity does is it takes
tremendous preventative measures. So it has real moderation, it
has real review of its ads.
Senator Lankford. So give me an example of that. What does
real moderation look like? What have other sites done to say,
``We want to make sure this does not happen here, so we are
going to do this''? What are they doing?
Ms. Souras. They often use hashing technologies or other
types of technologies such as PhotoDNA, which is a Microsoft
product. It enables someone to take basically a digital
fingerprint of an image so that they, as they get new ads, can
screen new photographs. If they get a hit off an ad that they
know is a trafficked child, it immediately comes out. It does
not get posted. It reduces the moderation cost as well. It is
much faster, more efficient.
They also have well-trained moderation staffs. The sort of
instructions that were being provided to the moderators that
the Chairman went over are not the type of instructions that,
again, responsible companies with professional moderators
utilize.
Senator Lankford. So how expensive is that software? Is
that millions of dollars to be able to purchase software like
that?
Ms. Souras. No, it is not.
Senator Lankford. So give me a ballpark figure.
Ms. Souras. Hashing technology generally is a very low cost
to no cost. There are some costs to implement, of course, into
a company's systems. The PhotoDNA product is provided at no
cost.
Senator Lankford. OK.
Mr. Roberts. Senator, in response to your question about
the relative cost, you might be interested to know our local
law enforcement has been involved in placing sting ads onsites,
including Backpage, that appear to be advertisements for young
persons who could be bought for sex. And in response to one of
these ads that might cost $18 or so, law enforcement sees
literally hundreds of potential responses within a few hours of
it being posted, which should give you some impression of why
it is so lucrative for the traffickers.
Senator Lankford. So knowing all that and what you are
trying to do in Washington State--you all have been at this for
a while--how do you measure success? How do you measure
progress, that we are achieving progress because we are seeing
this? What metrics are you looking for?
Mr. Roberts. Well, it is difficult to measure in part
because we do not have great statistics as to what is going on,
and that is one of the things that we as a State have been
emphasizing, is that we need to better study what the scope of
the trafficking problem is.
Our indication based on our most recent study from about
2008 locally was that we believed we had something in the
neighborhood of 300 to 500 minors being trafficked for sex on
an annual basis in the Greater Seattle area. So if we could
improve upon those numbers the next time we took a survey, we
would know we were making progress. In the meantime, we just
have to intercept as many child victims as law enforcement has
the resources to do. We wish we had more resources.
Senator Lankford. So you are bailing water at this point on
a ship that is taking on a lot of water, and you are bailing
basically for staying afloat. That becomes the key. So I
assume, as you mentioned before, you have a lot of partners
working on this, nonprofits, churches, other agencies. The
question from Senator McCain about the U.S. Attorney and the
Department of Justice, I would hope that they are stepping in
full force on this as well, though it sounded like it was
unknown what role they are playing at this point. We can ask
them, and obviously they can tell us what they are doing on
this. But are there partners that are missing? Industry
obviously has to be one of those partners. We are asking
Backpage to actually be a responsible corporate citizen, to
actually take on something that is clearly illegal away from
their business model. What partners are you missing?
Mr. Roberts. Industry is improving quite a bit, sir. There
have been efforts in the hospitality industry to train staff
members on recognition of trafficking situations. We definitely
would like to see better responses from organizations like
Backpage.
I would say in the Seattle area there is a very strong
presence led by the local U.S. Attorney's office, and there has
been grant funding by the Department of Justice for that
effort. The Washington Coalition Against Trafficking and the
Washington Anti-Trafficking Response Network both have
significant Federal funding and significant participation from
Federal law enforcement, including the Federal Bureau of
Investigation (FBI) and Homeland Security Investigations (HSI).
So we feel that the Federal Government and the Justice
Department are a valuable partner in the State of Washington.
Senator Lankford. Good, as they should be in this area
especially.
Mr. Chairman, I yield back.
Senator Portman. Senator Ayotte.
OPENING STATEMENT OF SENATOR AYOTTE
Senator Ayotte. Thank you, Chairman.
I wanted to ask, Ms. Souras, about the Communications
Decency Act, and as I understand it, Backpage is trying to hide
behind this act, and I want to understand, as I look at--as
we--and I am very glad, by the way, that the Chairman and
Ranking Member are doing this investigation because I think it
is incredibly important. But I want to understand how under
that particular act Backpage can rely on that act to shield
itself from the activities that, in my view, seem to be very
clearly facilitating trafficking in children and other illegal
activities. So you are lawyer.
Ms. Souras. Yes.
Senator Ayotte. I wanted to get your thoughts on this.
Ms. Souras. Thank you, Senator. You are correct. Backpage
has really used the CDA as a flag, as a shield against the
current lawsuits and threats of prosecution that may have
arisen from time to time. Their basic argument under the CDA is
that they are a mere publisher, so a bulletin board that
someone might put up in a supermarket; they are not responsible
for the note cards that people put on that bulletin board
selling certain items.
That seems very unrealistic when we are thinking that the
item for sale here is a human being and potentially a child.
But that is the basic component under the language of the CDA,
which is a fairly old statute, was created really to engender
growth and encourage growth of the Internet, and it serves a
tremendously important purpose in that regard, but did seek to
protect Internet providers from, let us say, rampant defamation
suits and things of that sort because there was so much public
content going on to some of these sites. So Backpage takes
advantage of that and says, ``We are a mere publisher. We just
provide the mechanism. We are not responsible for what people
put on.'' That is why some of this information that I
understand is coming out of the Committee's investigation
regarding the editing of ads is crucial and I think will be an
area that many attorneys and prosecutors will be focusing on
after this hearing.
Senator Ayotte. In other words, information that they
themselves may be editing ads so, therefore, are quite aware of
the content of the fact that what they are posting is involving
the illegal solicitation and horrific solicitation of children
and other illegal activities, other trafficking activities that
are against the law.
Ms. Souras. Absolutely, and are also crossing that boundary
between a mere publisher and participating in the creation of
that ad through their editing.
Senator Ayotte. So you mentioned the CDA, and they are
using it as a shield. Obviously, we have talked today, as I
understand your testimony, that other providers certainly are
not using the CDA in the way that Backpage is and are taking
more affirmative steps to make sure that there are not these
times of horrific, illegal ads on their sites. Isn't that true?
Ms. Souras. That is correct.
Senator Ayotte. So there is a huge contrast there. Do you
think that we as a Committee, as we look at this issue, need to
revisit or look at the CDA and how it is being used in light of
the current State of the Internet given that it is an older
statute and given that we have this Backpage using this statute
in a way, obviously, they are posting these ads of trafficking
of children, which is just appalling?
Ms. Souras. I know there has been tremendous discussion on
the Hill, in the Senate and the House, regarding the CDA,
especially with a focus on anti-trafficking measures. NCMEC has
been very involved in speaking with a number of members and
their staffs regarding the CDA and how is it that it could be,
let us say, brought up to date a little bit or altered a bit so
that unique sites like Backpage who are not going to undertake
the usual corporate protections could not see that as a defense
for them.
Senator Ayotte. I am a strong proponent of obviously all
the Internet and the entrepreneurship and great things we have
seen from it. But I cannot believe that when the CDA was
enacted, the lawmakers who passed it could have envisioned a
website like Backpage and really they are using this as a
shield for disgusting types of illegal activity being posted
there. So I hope that we will look at that issue as well as a
Committee to make sure that they cannot use this statute in an
improper way as a shield.
Thank you.
Senator Portman. Thank you, Senator Ayotte.
We will go another round, if that is OK. I know that there
are Members who are still here who have questions, and I
certainly do. Again, we appreciate your testimony so far, and
it has been troubling in the sense that you have made it clear
that this technology is increasing the risk to our kids and
that you are not getting the cooperation that you certainly
sought, which is unfortunately what the experience has been
with this Subcommittee in lack of cooperation.
You did testify that over the course of 3 years, Ms.
Souras, you worked with Backpage regarding child sex
trafficking on its website and provided them with a number of
specific recommendations of how they could utilize their
available technology but do it in a way that would reduce child
sexual exploitation. I think you have mentioned a couple of
those today, but I would like you to tell us specifically what
recommendations did you make that Backpage chose not to adopt.
Ms. Souras. Certainly the most egregious one is the one I
mentioned, which is that they do not remove an ad even after
they have reported it for child sex trafficking, and even if a
parent has written in and said, ``This is my child in this
ad.'' So that certainly is the most egregious.
Also, their failure to really introduce any one of a
variety of, again, the Know Your Customer or the verification
models. We are all on the Internet, and we know if we go to
even a cooking site for a recipe or to make a purchase, we
often will be required to authenticate ourselves in some way,
put in an email or a mobile number and get a text to verify
back that we are who we are and then we can proceed to use that
content on the Internet--very simple mechanisms used for very
innocuous content. As the Senator mentioned, this is very high
risk content when you are talking about escort ads and its
proclivity for misuse in trafficking and especially in child
sex trafficking.
So one thing we recommended was validation of a telephone
number, a mobile number, an email address of some sort. They
have not done that to our knowledge.
Also, the capture and reporting through the CyberTipline of
the IP address, again, when you do not have the metadata, an IP
address is crucial to try to locate the geographic location of
that ad. Especially for a trafficking crime when a child is
moved from city to city, IP addresses could enable you to
better track where that child is being trafficked.
Again, as I mentioned before, the use of a variety of
different types of hashing technologies, PhotoDNA or other
commercial hashing technologies, but really utilizing it, not
simply hashing your photographs and keeping the hashes dormant.
You must utilize those hashes if you are really going to have a
successful prevention mechanism to screen your ads, to try to
prevent content that you know has been reported as child sex
trafficking from ever going up, so a moderator is never seeing
that ad and making the call, is it really too young or not, in
the words of the Backpage managers.
Also, again, just flagging the various identifiers in an
ad. An ad can have a cell phone, a location, a pet name of some
sort, an email address--these are important identifiers.
Traffickers often are marketing various girls or boys on the
website for trafficking. By capturing that information from one
ad and using it to screen through the other ads on the system,
Backpage would be able to link ads that might all be connected
to one trafficker--another suggestion that NCMEC made which
Backpage to our knowledge has not adopted and told us that it
would not adopt.
There are a few others. Those are some of the primary ones.
Senator Portman. Well, thank you. And all those would go
toward you being able to rescue these kids, all of us being
able to rescue our children. They also go to law enforcement,
though, and being able to prosecute these cases.
Ms. Souras. Absolutely.
Senator Portman. The first example you used of them not
pulling ads, earlier you said that a mother finally sent them
an email saying, ``For God's sake, she is only 16.'' So for all
of us who are parents or grandparents, think about that. ``For
God's sake, she is only 16.'' And yet they refused to pull the
ad.
And with regard to finding these children, again, you all
have been very helpful to us in Ohio. We appreciate that, and
we have worked with you on legislation to help finding
exploited children and missing children. But think about that.
Not being able to provide that information to law enforcement
means you cannot find many children who otherwise could be able
to be found. Again, the heartbreak of knowing that that
information is out there somewhere, and yet a supposedly
legitimate commercial concern will not provide you the
information or provide it to law enforcement to be able to find
your child, to me this is what this hearing is really all
about. It is about these kids and about this practice that
keeps you from doing your job at the National Center, but also
keeps so many parents and grandparents from being able to save
their children and rescue their children.
With that, Senator McCaskill.
Senator McCaskill. Mr. Roberts, could you briefly outline
for the record why you believe Backpage operates outside the
immunity of the Communications Decency Act?
Mr. Roberts. Well, Senator, I do not have enough
information yet to definitively say one way or the other, but
the concern that we expressed in our amicus brief is obviously
that they are exceeding the bounds of the exemption. In other
words, by actually participating in drafting the ads, by making
themselves a go-to location for ads advertising prostitution
among such sites, and by crafting essentially the message that
is being sent to try to keep it so that it does not involve or
does not appear to involve----
Senator McCaskill. Children.
Mr. Roberts [continuing]. Child trafficking. Exactly.
Senator McCaskill. So their engagement in editing and
shaping the content is at this point--because we are all
hitting walls in terms of getting good information from
Backpage--is the reason.
So assuming that we eventually through legal processes get
the information, I am assuming that this is the kind of factual
scenario that could, in fact, lay an adequate foundation for
the Racketeer Influenced Corrupt Organizations (RICO). Would
you agree with that?
Mr. Roberts. I think that is a possibility.
Senator McCaskill. Because this is an enterprise. This is
not one activity. This is an enterprise of activity.
I want to give a shout-out to you and your colleagues and
the literally hundreds and hundreds of prosecutors across the
country that are prosecuting these cases against traffickers,
against pimps, and against customers. I appreciate the comments
of Senator McCain, but I know for a fact that there are many
U.S. Attorney's Offices that are actively engaged in a
cooperative fashion with local law enforcement and bringing
these cases. The case I referenced in my opening statement was,
in fact, filed by a U.S. Attorney's Office against the two
traffickers that were taking these young girls from truck stop
to truck stop.
By the way, these pimps that take these girls from truck to
truck call them ``lot lizards,'' for the record, which is as
distasteful as the underlying practice of pimping these young
women out.
One of the things that is interesting to me is how many
stings go on on Backpage. It is the go-to place for law
enforcement to place sting ads, and there are literally
thousands of cases moving through the criminal justice system
right now where customers have been caught in stings.
Have you all tried at NCMEC ever to place an ad in the
section of Backpage saying to people who are interested in
escorts and sex, ``You should know this site is a No. 1
location for sting activity, and you have a high likelihood of
being prosecuted''? Has anybody ever tried to place that ad?
Because it seems to me that we have two problems here. We have
the Backpage problem, we have the criminal element of
traffickers problems, and then we have the demand problem, and
the fact that too many people believe they can do this in
anonymity, that they can try to access young children through
the Internet.
What efforts have you been privy to, Ms. Souras, of the
various organizations that are trying to do good in this area
to inform would-be customers that the chances that they are
responding to an ad that has a law enforcement officer on the
other side go dramatically up when they think that they are
going to be successful at being anonymous?
Ms. Souras. Thank you, Senator. I am certainly aware that
some of my nonprofit colleagues at other organizations do
engage in that kind of advocacy, or attempt to on Backpage. It
is my understanding that some of the organizations that have
tried to place messages such as you just detailed, those ads
have been blocked from the escort section or removed at some
point. So it is very difficult for a nonprofit organization to
place an advocacy message or a public awareness message for a
potential buyer on Backpage. That is my understanding.
Senator McCaskill. Well, then we need to make sure that, as
we try to get information from Backpage, we include that
question: How many times have you blocked an ad informing
would-be customers that there is a likelihood that the ad you
may be responding to may, in fact, be law enforcement?
Ms. Souras. Absolutely, and I am happy to refer the
Committee to some of those nonprofits.
Senator McCaskill. That would be terrific because,
factually, I think as a prosecutor, that would be very
important to a case I was trying to bring.
Mr. Roberts. And, Senator, placing ads of that type is one
of the efforts of the King County prosecuting attorney's
office. However, I believe they have been focusing on
purchasing ad results from search engines, like Google and
Microsoft.
Senator McCaskill. Right. I know there are lots of
different avenues to try to get at this incredible problem.
Well, thank you. I think you all have made a very powerful case
as to why it is important that we be tenacious and refuse to
give up. And let me just say for the record that I know how
dedicated the Chairman is to this issue; I know how dedicated I
am to this issue; I know how dedicated Senator Heitkamp is to
this issue. And if Backpage thinks they are going to go quietly
into the night, they are sadly mistaken.
Senator Portman. Senator Heitkamp.
Senator Heitkamp. Mr. Chairman, again, I want to maybe give
another shout-out to an organization called Truckers Against
Trafficking. They are working to deal with kind of a culture
that needs to change within that subset, and they are doing
terrific work in terms of educating and hopefully are making
strides along with the rest of you in addressing the demand
problem, because we know even as reprehensible as what all of
this is, as long as there is a demand, we are going to find the
next iteration, the next generation, and so we need to be on
top of that as well.
Senator Ayotte and the Chairman and Ranking Member, as we
look kind of going forward, we are looking at things that we
can do today. We are going to continue to be as tenacious as
what we possibly can on this investigation. But I want to talk
about maybe a couple ideas that could add to the effort here
legislatively. And I think, Ms. Souras, in your testimony you
mentioned the fact that current Federal law requires entities
defined as electronic service providers report apparent
instances of child pornography that they are being made aware
of. So that is Federal law. But the same requirement does not
exist for apparent instances of child sex trafficking.
Why do you think that is? Do you think it would make a
difference if that law were changed to include child sex
trafficking? And has this issue ever been raised before
Congress? And has there been a broader discussion? Is this an
additional tool that we could be using and looking at?
Ms. Souras. At NCMEC we think this would be a tremendous
additional tool. I think historically it was not in the initial
statutory requirement that you reference, perhaps for a number
of reasons. Perhaps the focus was not so much on instances of
online trafficking as it was on child pornography at that time,
and it has done wonders to address that problem.
I also think child-trafficking ads or content are somewhat
inherently more difficult to identify than a child pornography
image where you simply have a photo and you know if it is
apparent child pornography or not. A child sex-trafficking ad
or content will be a mixture often of text and ads, photographs
as well.
That being said, we have had some anecdotal discussions
with staff on the Hill regarding that gap, that small gap in
the reporting statute. It is a change and a further discussion
that NCMEC would welcome participating in. We believe if there
is a requirement to report, again, only apparent or child sex-
trafficking content that a server may become aware of--they
have no obligation to search, of course, for any of this
content. If they did start reporting that to NCMEC, it would
not only increase our ability to provide that information
through to law enforcement and assist families and victims in
the process; it also, I think, would go very far to assisting
in our prevention measures. We would see more ad content and be
able to develop prevention measures that would address the
content we are seeing.
Senator Heitkamp. And legitimate actors would err on the
side of advancing that kind of content. Correct?
Ms. Souras. Yes, correct.
Senator Heitkamp. People who really cared about this
problem would, in fact, welcome an opportunity to have someone
who is a partner with them to stop this from happening.
Correct?
Ms. Souras. Absolutely, yes.
Senator Heitkamp. I want to, I think, really thank all the
advocacy groups and all of you who have been on the front end
of this, who have been toiling, and we know that this is not
just a problem for our country. But as we work through these as
a defender of the First Amendment and as we work through that
balance, the work that we do here is work that will have
repercussions not just in our country but across the world.
And so I really want to thank the Chairman and the Ranking
Member for making this a priority for the Committee, and I want
to thank you for your testimony. It has been great to see you
all again, and if there is anything more that we can do or that
you think of, I hope that you will reach out either to the
Committee or individual Members who have been working on these
issues.
Thank you, Mr. Chairman.
Senator Portman. Thank you, Senator Heitkamp, and thank you
for your leadership on this. And as you can see, all of my
colleagues on this Subcommittee have a passion for this issue,
an intense interest. I think what we have been able to find
today are some very specific ways in which to deal with the
online issue, and, Ms. Souras, in particular, your laundry list
of things that you have asked Backpage to do that they have not
done certainly would help both in terms of finding missing
kids, as we say, prevention, as you say, and in terms of law
enforcement and prosecutions. There are also other things that
can and should be done with regard to sex trafficking. We did
pass legislation, as you know, here in Congress that was signed
into law earlier this year. You were very involved with that,
and you worked with us particularly on some of the missing
children issues who are the most vulnerable to trafficking, but
also the demand side issue. We really ought to make some
progress at the Federal level for the first time in 15 years.
And then, finally, we were able to change some of the Federal--
the bias in the legislation to say that these young women and
men, girls, boys, who are involved in this are indeed victims
and should not be treated as criminals but, rather, as victims
so that we can deal with their trauma, which, as you said
earlier, is long term, sometimes lifelong.
And so this is, I think, an opportunity for us not just to
talk about Backpage and the obvious disappointment all of us
have and their inability to be here today, but also their
unwillingness to cooperate more generally with this issue. But
it is also a chance to talk about efforts we can take going
forward to combat sex trafficking and to try to put an end to
sex trafficking in this country.
So we thank you very much, both of you, for your testimony
this morning. Mr. Roberts, thank you for your hard work. I know
you will keep it up nationally, working with all the Attorneys
General.
And, Ms. Souras, and for John Walsh and John Clark, who are
here from the National Center, thank you for your leadership on
this, and to all the groups who are out there in the trenches
working on this issue every day, and a particular shout-out to
those who are embracing these victims and helping them to get
through this trauma. Having met with victims in Ohio, some of
whom are only recently going into a treatment and recovery
process, others who have been at it for years, this is the most
heartbreaking and difficult part of this whole process. And so
thanks to all those groups that are involved, and individuals.
We would excuse you, and we are now going to call the
second panel.
[Pause.]
I would like to call the CEO of Backpage, Carl Ferrer.
[No response.]
We had hoped Mr. Ferrer would be here, but he has refused
to come. And we have talked a lot about the underlying sex-
trafficking issue here this morning, a horrific practice. It
goes on, sadly, here in the 21st Century, really one of the
great human rights causes of our century.
We have also talked about the fact that we have not
received cooperation from Backpage in looking into some very
legitimate questions that have been raised, and our report lays
out enough evidence to make it clear why we need the
information.
At this point in the hearing, we had planned to hear
testimony from Backpage's CEO, Mr. Carl Ferrer. Mr. Ferrer has
been under a legal obligation to appear before the Subcommittee
since October 1, and the Subcommittee notified him by letter on
November 3 that his appearance was scheduled for this morning.
The same day we sent the letter, the Subcommittee staff
called Mr. Ferrer's lawyers to confirm that Mr. Ferrer should
plan to appear and that we could not accept logistical excuses
for not showing up. Mr. Ferrer's lawyers did not mention any
conflict of interest.
Last Friday, less than a week ago, Mr. Ferrer's lawyers
asked us to excuse his appearance because he was traveling and
that, if called to testify, he would plead the Fifth Amendment.
They did not say it would be impossible for Mr. Ferrer to
appear. The Subcommittee denied that request on Monday.
A witness has the right to refuse to answer questions that
may incriminate him, but that right belongs to the witness, not
his lawyers. It is appropriate to require a witness himself to
appear, hear the questions put to him, and to exercise his
constitutional right not to answer any questions he believes in
good faith may tend to incriminate him. Again, as I said
earlier, this Subcommittee would respect any valid assertion of
the Fifth Amendment privilege. But there is no privilege not to
show up.
Yesterday, around noon, however, Mr. Ferrer's lawyers wrote
to Senator McCaskill and myself informing us that Mr. Ferrer
would not appear today because he is on an international
business trip. This is truly extraordinary. You heard from
Senator McCain earlier who said that, in his many years on this
Subcommittee, he has never seen a situation where a witness
simply refused to appear. It is not acceptable for a witness
under subpoena to wait until the day before his appearance to
announce unilaterally that he will be out of the country and
refuse to appear.
Senator McCaskill and I, of course, are conferring about
next steps, but we both consider Mr. Ferrer's refusal to appear
here a clear act of contempt.
I would now like to turn to Senator McCaskill if she would
like to add a few words on this point.
Senator McCaskill. Well, the laws of this country should
apply to everyone, and we should take all steps necessary to
make sure that we fulfill our obligations under the law. And
under the law, the Senate is entitled to ask witnesses to
appear before it and for them to answer questions and provide
information.
So I think it is important that we be steadfast in our
resolve to get the information that we need in order to make
sure that the public policy in this country is effective when
it comes to children being victims. This is not an exercise in
having a hearing. This is an exercise in making sure that we
have done everything in the law to protect children. It is not
any more complicated than that. And any witness who refuses to
answer the lawful requirement of testimony and providing
information must be held accountable for that.
And so we will be careful and cautious about using the
procedures available to us, but we will use them to ensure that
this effort is robust and informed and that ultimately the
result is that more children and more families feel the comfort
that their government is doing everything it can under the law
to protect them.
Senator Portman. I thank the Ranking Member. And as you
see, we are partners in this effort, and we will not be
deterred.
I would also like to thank the Chairman of this Committee,
the full Committee on Homeland Security and Governmental
Affairs (HSGAC) Chair and Ranking Member for their help.
Senator Johnson and Senator Carper have not just supported our
efforts this morning. They have released a joint statement
which commends PSI efforts in this regard, and I would now like
that statement to be made part of the record. They are
supporting us not just on the important work we are doing to
combat human trafficking, but also with regard to any actions
we might take with regard to Backpage and their unwillingness
to cooperate.
Senator Portman. We began this bipartisan investigation
with a very simple goal: better informing Congress about the
issue of sex trafficking, how to combat it through smart
reforms, including legislative actions. We will not be deterred
from that inquiry. If Backpage fails to change course and
comply with the Subcommittee's subpoena, the appropriate next
step is to pursue contempt proceedings. This is a step the
Senate has not taken in 20 years--as I said earlier, this is
extraordinary--and PSI has not taken for more than 30 years.
But, regrettably, Backpage's conduct has invited this very
unusual action.
When dealing with a party acting in good faith, we would be
inclined to pursue what is known as civil contempt. That
involves a resolution authorizing the Senate Legal Counsel to
bring a civil lawsuit to compel Backpage to comply. But I think
I speak for Senator McCaskill and myself when I say this case
appears to be more serious than a good-faith disagreement. It
is not about questions of privilege.
As I noted, Backpage's lawyers have told PSI that the
company has not even bothered to search for and identify the
documents responsive to the subpoena. And with no lawful
excuse, the company's CEO has defaulted on his obligation to
appear before the Subcommittee today.
These are not actions of a party acting in good faith. He
could have come. He could have pleaded the Fifth. He chose not
even to come. Rather, it is evidence of willful defiance of the
Senate's process.
For those reasons, after consulting with our staff and
Senate Legal Counsel, Senator McCaskill and I believe this case
may justify a referral to the Department of Justice for
criminal contempt. We will consider the appropriate course in
the next few days.
Again, I would like to thank the witnesses and my
colleagues for their participation today in this very important
hearing. The hearing record will remain open for 15 days for
any additional comments or questions from any of the
Subcommittee members.
And, with that, this hearing is adjourned.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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