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Is There A Single Online Service Not Put At Risk By SESTA?

from the the-risks-are-big dept

Tue, Sep 19th 2017 9:02am — Mike Masnick

Earlier today, I wrote up a list of the many problems with SESTA and how it will be abused. Over and over again, we've seen defenders of the bill -- almost none of whom have much, if any, experience in managing services on the internet -- insist that the bill is "narrowly targeted" and wouldn't create any problems at all for smaller internet services. However, with the way the bill is worded, that seems unlikely. As stated in the last post, by opening up sites to facing both lawsuits from state Attorneys General and civil lawsuits, SESTA puts almost any site that offers services to the public at risk. The problematic language in the bill is that this is the "standard" for liability:

"The term 'participation in a venture' means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation...."

And that could apply to just about anyone offering services online. So, let's dig into a few examples of companies and services potentially facing liability thanks to this nuclear bomb-sized hole in CDA 230.

Airbnb: I did a whole post on this earlier. But there are multiple reports of how some people have used Airbnb for prostitution. I'm quite sure that Airbnb doesn't want its users to use the platform in this way, but under SESTA, it will face criminal and civil penalties -- and it has no way to prevent it. Prosecutors or civil litigants can easily point to these articles, and note that this demonstrates "knowledge" that Airbnb is "facilitating" sex trafficking, and, voila, no CDA 230 protections.
Square: The popular payments processor that has made it easy for small businesses to accept credit cards... can also be used for prostitution/sex trafficking. Square can't specifically watch over what each of its customers is selling, but clearly, it wouldn't be difficult for prosecutors and/or civil litigants to argue that Square is knowingly facilitating trafficking by allowing traffickers to accept payments.
Facebook: Obviously, tons of sex traffickers use Facebook to advertise their wares. There have been news stories about this. So clearly Facebook has "knowledge." If it can't magically eradicate it, it may also now have to deal with criminal and civil lawsuits lobbed its way.
Snapchat: Last year there was a story of a teenager lured into a sex trafficking ring via Snapchat. So, clearly, lawyers might argue that Snapchat has "facilitated" sex trafficking.
Wordpress/Automattic: Automattic hosts a significant portion of the entire internet with its powerful Wordpress.com platform. It's pretty damn likely that at least some sex traffickers use Wordpress to set up sites promoting what they're offering. Thus, it's "facilitating" sex trafficking.
Wikipedia: You wouldn't think of Wikipedia as being a hub for sex trafficking, but the site gets hit with spam all the time, and people trying to promote stuff via its webpages -- and even when spam is edited out, it remains viewable in the history tabs. So, if a few links to trafficking advertisements show up, even if edited out, Wikipedia could face liability for facilitating such ads.
Google Docs: Did sex traffickers use Google docs to create fliers or manage a spreadsheet? Is that "facilitating" sex trafficking? Well, we might not know until after a court goes through a long and involved process to figure it out.
Cloudflare: Tons of websites use Cloudflare as a CDN to provide better uptime. What if one of them involves advertisements for sex trafficking. Is Cloudflare liable? After all, its CDN and anti-DDoS technology helped "facilitate" the service...
Rackspace: Popular hosting company has millions of websites. If one of them hosts advertising for trafficking, it can be liable for facilitating sex trafficking.
Amazon: Through its web services arm, Amazon hosts a large portion of the internet. Can you say for certain that Amazon S3 isn't used somewhere by some sex trafficking parties?
YouTube: These days, almost anything can be found in videos, and while YouTube has a system to "notify" the company of abuse, that may be used against the company, claiming "knowledge." After all, in a case in Italy where Google execs were found criminally liable, the fact that some users clicked the "notify" button was used as evidence against the execs.
Namecheap: Has Namecheap ever registered a domain that was then used by sex traffickers? Well, then it can be argued that it facilitated sex trafficking, and is not protected by CDA 230.
Indeed: Basically any "job board" is at risk. There are stories of sex traffickers seeking victims via promises of summer jobs -- and while these stories are highly dubious at best, similar accusations against online job boards under SESTA would be easy to make.
Reddit: As an open forum, certainly sex trafficking gets discussed in some corners of the site. Is it possible that some have used it to help facilitate trafficking? Absolutely.
Any site that has comments: And that includes sites like Techdirt. Want to get a site in trouble? Why not spam its comments with links to sex trafficking ads? Voila, you've now put those sites at risk of criminal and civil liability...

The point of this is that this list can go on and on and on. Almost any internet service can be used in some way to "facilitate" sex trafficking. And rather than recognizing that the problem is those engaging in sex trafficking, SESTA now lets everyone go after the tools they use. But nearly all those tools are mostly used for perfectly legitimate, non-illegal activity. Yet, under SESTA, all face massive liability and the potential for criminal charges.

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Filed Under: cda 230, knowledge, section 230, sesta

31 Comments

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Anonymous Coward, 19 Sep 2017 @ 9:07am

News sites that "care about the community" are safe
Techdirt has run numerous pieces over the last year about news sites that eliminated their user comment section with claims that they "cared about the community" and similar garbage, even as they eliminated that community. Perversely, such sites would be safe from this because they disallowed all user-generated content.
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- Anonymous Coward, 19 Sep 2017 @ 9:36am
  
  Re: News sites that "care about the community" are safe
  Not necessarily.
  
  If they embed Facebook comments, then they could still be "facilitating" whatever is posted on Facebook.
  [ link to this | view in chronology ]
Anonymous Coward, 19 Sep 2017 @ 9:10am

>The term 'participation in a venture' means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation....

Not moderating user content is knowing conduct, and so catch 22 applies under this proposed law.
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Anonymous Coward, 19 Sep 2017 @ 9:23am

all of these industries, coupled with all of the entertainment industries, want complete control of the Internet and when you consider that Berners-Lee has crapped on everyone by backing the inclusion of DRM (EME) in HTML5, they are so close to getting it, it's untrue! once they get what they want, the Internet will become a shadow of it's former self, because you wont be able to search for anything without getting permission from those industries, wont be able to watch anything without getting permission from them, wont be able to upload without PAYING them and definitely wont be able to download anything without giving every bit of personal information about yourself, including ring size, ready for the complete fucking, and then paying even more! Hollywood, MPAA and RIAA have been after this from day one, when they couldn't see the potential and then, once realising the mistake they made, rather than doing what they could by negotiating and competing, went down the road of threatening, intimidating and bribing to achieve their ends! less than a year to go and they will get it and almost every government and body that can be bought has been bought on the way, but as far as they are concerned, it has been worth it! those who have been jailed, died, ruined out of the public are nothing to them as long as they end up winning!! what a bunch of cunts!!
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- Anonymous Coward, 19 Sep 2017 @ 1:38pm
  
  Re:
  They will never get complete control of the Internet and they are not close to getting it and the internet will never be a shadow of it's former self and they wont get it within a year.
  
  They wont win.
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Jenny, 19 Sep 2017 @ 9:25am

Hey folks, if you are lonely tonight and looking for a good time... 867-5309 (e-ine). (This ad for sexual services not sanctioned by Mike Masnick)
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- Anonymous Coward, 19 Sep 2017 @ 9:49am
  
  Re:
  Don't you think that the poor people with that phone number have been harassed enough already?
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  - Oblate (profile), 19 Sep 2017 @ 10:16am
    
    Re: Re:
    
    Don't you think that the poor people with that phone number have been harassed enough already?
    
    When I called them they said they had not, but for $9.99/minute I could harass them all I wanted.
    
    YMMV with area code.
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- Dr Janice Duffy, 20 Sep 2017 @ 2:47am
  
  Re: 'Jenny'
  And in a single short comment 'Jenny' manages to lower the tone of this blog to its righfull place - selling credibility for money or benefits
  [ link to this | view in chronology ]
Roger Strong (profile), 19 Sep 2017 @ 9:30am

FCC.gov: Remember the recent Techdirt story "The FCC Insists It Can't Stop Impostors From Lying About My Views On Net Neutrality"

Once filed in the FCC's rulemaking record, there are limits on the agency's ability to delete, change, or otherwise remove comments from the record. Doing so could undermine the FCC's ability to carry out its legal obligation, which is which is to respond to all significant issues raised in the proceeding.

If those fraudulent comments can't be taken down, then neither can any comments that include links to sex trafficking. The same probably goes for any government site where citizens' submissions become public record.
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- Anonymous Coward, 19 Sep 2017 @ 9:45am
  
  Re:
  government is immune from the law because it's citizens do not hold them accountable.
  
  didn't you get the memo?
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  - Anonymous Coward, 19 Sep 2017 @ 1:12pm
    
    Re: Re:
    What a simplistic pov
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  - ShadowNinja (profile), 20 Sep 2017 @ 8:23am
    
    Re: Re:
    "We're powerless to help you, not to punish you".
    [ link to this | view in chronology ]
- Bergman (profile), 19 Sep 2017 @ 10:46pm
  
  Re:
  It's even crazier than that. If a single low-ranked clerk in any government office uses their work computer to facilitate sex trafficking, then any supervisor who takes action against that clerk for misusing office resources has knowledge of facilitating trafficking.
  
  If you do it in the right place and spin it right, you could even arrange for the President to be arrested for sex trafficking.
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aerinai (profile), 19 Sep 2017 @ 9:42am

Don't forget Tor!
Creating a portal to access the dark web... "knowledge of" and "facilitating" because 'criminals use it'.

And Tor hosts running the onion routers...
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Roger Strong (profile), 19 Sep 2017 @ 10:10am
- Equifax: It's only a matter of how many sex traffickers they've offered a year's complimentary credit monitoring.
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tom (profile), 19 Sep 2017 @ 10:30am

Any bank that offers online banking. Most sex traffickers expect to turn a profit and will deposit those profits somewhere. If they ever use the online portal to make a payment to their ISP or domain registrar, that bank is now assisting with sex trafficking.

Verizon - Yahoo - Tumbler - Porn - Sex Trafficking.
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Anonymous Coward, 19 Sep 2017 @ 11:02am

Oooh, bullet points! You must see SESTA as dire indeed!
I'll just do local, but applies to all:

"* Any site that has comments: And that includes sites like Techdirt. Want to get a site in trouble? Why not spam its comments with links to sex trafficking ads? Voila, you've now put those sites at risk of criminal and civil liability..."

Sheer predictive assertion. I predict that if not passed, teh internets will become MORE of a haven for drug trade and sex trafficking. My view has the advantage of evidence and common sense.
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- This comment has been flagged by the community. Click here to show it
  
  Anonymous Coward, 19 Sep 2017 @ 11:03am
  
  Re: Oooh, bullet points! You must see SESTA as dire indeed!
  But no matter WHAT language of the bill says, over-the-top unthinking prosecution just simply never happens in practice. They're too busy with real problems. Feel free to cite anomalistic cases that go nowhere, and yet the point stands. Prosecutors and judges sort such out pretty well, even at this stage. -- Besides, anyone can attempt to falsely incriminate you now! You wouldn't leave those up, would you? Wouldn't any little civil duty nag at you, or would you just shrug and say "I'm immune from liability"?
  
  Here's a metric for small sites: I often skim hundreds of comments on some sites, and the couple dozen usual here, so YOU and your minions can too, and remove any that should. Your filters against commercial links usually work (couple lapses in the last week, though), it's mostly automatic. You're just objecting to putting a few more entries into your block list and/or rules.
  
  BTW: a length limit (at least from TOR) makes for multiple comments. Blame Techdirt.
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  - Travis, 19 Sep 2017 @ 3:58pm
    
    Re: Re: Oooh, bullet points! You must see SESTA as dire indeed!
    The real threat isn't criminal liability. It also opens providers up to civil liability. This means every two-bit ambulance chaser will be suing every company with money.
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- Roger Strong (profile), 19 Sep 2017 @ 11:34am
  
  Re: Oooh, bullet points! You must see SESTA as dire indeed!
  
  Sheer predictive assertion. I predict that if not passed, teh internets will become MORE of a haven for drug trade and sex trafficking.
  
  That's like predicting - a century or so ago - that more bank robbers would be switching from horse to automobile as the getaway vehicle of choice. It's still not a valid reason to hold auto manufactures and mechanics responsible for bank robberies.
  
  My view has the advantage of evidence and common sense.
  
  No, that's a big fail on the common sense.
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- Ninja (profile), 19 Sep 2017 @ 12:46pm
  
  Re: Oooh, bullet points! You must see SESTA as dire indeed!
  Just like the MAFIAA predicted doom for years because of the internet and is still around breaking record after record on revenues?
  [ link to this | view in chronology ]
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Anonymous Coward, 19 Sep 2017 @ 11:03am

Say. Since you're struggling to find half dozen topics a day:
Why don't you start a crusade against commercial spammers? EVERYONE hates them. They're easy to identify. Work up a few bullet points, use your massive influence to promote, and start trying to do some actual good, not just kibbitz and kvetch for the next 20 years.
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- Anonymous Coward, 19 Sep 2017 @ 1:43pm
  
  Re: Say. Since you're struggling to find half dozen topics a day:
  Are you trying to win the award for most self-unaware comment in the history of the internet?
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Anonymous Coward, 19 Sep 2017 @ 11:15am

assists, supports, or facilitates a violation....

The problematic language in the bill…

Previous Techdirt articles have provided hyperlinks, but just for convenience here…

Section 4 of S.1693 provides:

Section 1591(e) of title 18, United States Code, is amended—

            (1) …

            (2) by inserting after paragraph (3) the following:

            “(4) The term ‘participation in a venture’ means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation of subsection (a)(1).”.

(Emphasis.)

18 USC § 1591 - Sex trafficking of children or by force, fraud, or coercion

(a) Whoever knowingly—

            (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person . . .

            (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),

                        knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that . . .

So (a)(2) prohibits “participation in a venture” which the new (e)(4) defines as “knowing conduct” that “assists, supports, or facilitates” someone else who “knowingly” does stuff enumerated in (a)(1) while also having some further knowledge in the trailing portion of (a).
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- Anonymous Coward, 19 Sep 2017 @ 11:27am
  
  Re: assists, supports, or facilitates a violation....
  
  The problematic language in the bill…
  
  This isn't “problematic language”.
  
  Just on style alone, this language FUCKING SUCKS.
  
  The Congress-people writing this shit are not even attempting to come up with decently understandable law.
  [ link to this | view in chronology ]
  - kallethen, 19 Sep 2017 @ 12:00pm
    
    Re: Re: assists, supports, or facilitates a violation....
    It's the Animal Farm approach...
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That Anonymous Coward (profile), 19 Sep 2017 @ 6:14pm

Why don't we just look at the NSA feeds of Congress's emails & find all the pimps & madams at once?
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MyNameHere (profile), 21 Sep 2017 @ 7:40am

It comes back to the same problem of comprehension:

You keep going on like sites would have to be psychic and know who people are before they accept their FIRST post or FIRST ad or FIRST rental. That is not true. Simply, they would have no knowledge?

AirBNB renting to an escort? Well, first time they would not know, but when they did know (say feedback from the owner, example, or perhaps the escort got busted) they could ban that person from their service.

They difference? They would no longer be able to turn a blind eye to repeat abusers. Once they know what someone is up to (it has been reported to them), they would be obliged to take some action to stop it happening again.

The first time out, they are not "knowing". The second time around would be entirely different.

Now, when it comes to sites like CL or Backpage, accepting ads for escorts or other adult services would be knowingly helping the very first time out of the door. Knowing that escorts are prostitutes, accepting and running an ad would most certainly be an offense.

It's less clear (and more doubtful) that they would be on the hook is someone is posting "spammy" adult items in non-adult areas. Flagging, reporting, automated scanning and the like should handle the rest in due course.

"Cloudflare: Tons of websites use Cloudflare as a CDN to provide better uptime. What if one of them involves advertisements for sex trafficking. Is Cloudflare liable? After all, its CDN and anti-DDoS technology helped "facilitate" the service..."

Same thing - once Cloudflare is made aware (aka, they have knowledge) they would need to act. Until then the law clearly states that without knowledge, there is no liability created.

Now, the real answer for all of this is what constitutes knowledge, and what constitutes knowledge of a criminal act. Does it happen when there is a charge laid or a conviction rendered?
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- SDN, 28 Sep 2017 @ 4:04pm
  
  Re:
  "Now, the real answer for all of this is what constitutes knowledge, and what constitutes knowledge of a criminal act."
  
  And do you have the deep pockets to handle the lawfare needed to find out?
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SDN (profile), 28 Sep 2017 @ 4:18pm

It's worse than you think
"I'm quite sure that Airbnb doesn't want its users to use the platform in this way, but under SESTA, it will face criminal and civil penalties -- and it has no way to prevent it."

And under the Fair Housing Act, if said traffickers are Government Victim Group Members, Airbnb can be sued for discrimination if they don't allow everyone to use the service.
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