Why Does SESTA Allow State Attorneys General To File Civil Claims?

from the please-someone-explain dept

So we've already talked a lot about the problems of the "knowledge" standard in the amended version of SESTA, in that it's way too broad, and leaves smaller sites completely adrift in figuring out if they're on the right side of the law. But there were other changes in the amended version of SESTA as well -- some good, and some bad. Law professor Eric Goldman has an excellent post detailing the changes, but I want to focus on one really perplexing one.

For reasons that are totally unclear, SESTA now allows states Attorneys General to file civil charges against websites for violating sex trafficking laws. That's... weird. One good change in the new SESTA was the removal of letting state AGs go after sites for just violating state trafficking laws by requiring "conduct that violated a Federal criminal" trafficking law. That was important, because state laws are a hodgepodge of rules, and can change (often in weird ways) making it next to impossible for many websites to make sure they're magically in compliance with every state's laws on this issue. But perhaps to keep the state AGs happy, this was added instead:

In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been threatened or adversely affected by any person who violates section 1591, the attorney general of the State, as parens patriae, may bring a civil action against such person on behalf of the residents of the State in an appropriate district court of the United States to obtain appropriate relief.

As Goldman notes, this makes no sense at all:

I don’t understand this provision and why it’s needed, given that SESTA separately loosens the constraints on state AG enforcement of their state crimes. The scope of civil enforcement is still tied to the federal crime, which is good, but giving state AGs a second option to enforce the law is puzzling. I know the bill proponents feel like much of the sex trafficking enforcement work is done at the state and local level, so unleashing the state AGs from Section 230 will put more “cops on the beat.” However, why do they also need a civil action to do that work?

This change is significantly more troubling if you're at all familiar with the fairly recent history of state Attorneys General and their grandstanding against technology. We've written about this on Techdirt for the better part of a decade, but I'll point you to two "must read" articles on other sites to get a sense of how trusting state AGs with such a massive power is going to backfire badly. The first is Topix CEO Chris Tolles' horrifying account of having State AGs gang up on his company with no legal basis, just because they didn't like the way Topix dealt with what were deemed "abusive" comments. Notably, one of the state AGs leading the charge: Richard Blumenthal -- then in the middle of a campaign to become Senator for Connecticut (which he won) and now... the co-author of SESTA. Hmm.

From that first hand account:

After my lawyers reconfirmed that we weren’t being accused of breaking any specific laws, I decided to take a pretty open stance with these guys and give them the background on what we did, and how we did it, figuring that if they knew what we were doing, and in particular, if they knew that the paid expedition of reviews was only about 1% of all of our feedback, that we would be able to clear this up pretty easily. (I was wrong about this).

The call with these guys was actually pretty cordial. We walked them through how we ran feedback at Topix, that how in January 2010, we posted 3.6M comments, had our Artificial Intelligence systems remove 390k worth before they were ever even put up, and how we had over 28k feedback emails and 210k user flags, resulting in over 45k posts being removed from the system. When we went through the various issues with them, we ended up coming to what I thought was a set of offers to resolve the issues at hand. The folks on the phone indicated that these were good steps, and that they would circle back with their respective Attorneys’ General and get back to us.

No good deed goes unpunished

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That’s right. Another press release. This time from 23 states’ Attorney’s General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn’t like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and “immediately revamp our AI technology to block more violative posts” amongst other things.

I don't want to all stereotype state Attorneys General, but there's a reputation that the state AG position is a stepping stone to higher office -- generally state Governor or Senator. And, thus, there's a fairly long history of state AGs using their platform for regular grandstanding, getting themselves in headlines. And one good way to do that is to pick a hot topic that will create headlines, totally misrepresent it, and then jump in front of the press. That's what happened to Topix, but we've highlighted numerous other such cases, from Andrew Cuomo (when he was NY's Attorney General, before going on to be Governor) getting ISPs to cut off Usenet access to then South Carolina AG Henry McMaster (then AG, now Governor) threatening to throw Craigslist execs in jail to Pennsylvania's Tom Corbett (then AG, and soon after Governor -- sense a pattern yet?) demanding Twitter reveal anonymous critics to Mississippi Attorney General Jim Hood blaming everything bad on the internet on Google. In each of these cases, with no legal basis, state AGs attack big California tech companies. Because it generates headlines. As Tolles wrote in his piece:

The States’ Attorneys General are the place that complaints about your company will probably end up. This is especially true if you host a social or community based site where people can post things that others may dislike. And, there’s no downside to attacking a company based in California for these guys (MyScape, Facebook, Craigslist have all been targets in the past couple of years). Taking complaints from your citizenry and turning them into political capital is simply too good an opportunity for these guys to pass up.

And SESTA now provides them with a big weapon: a civil lawsuit. Back during the one hearing the Senate held on SESTA, California's AG, Xavier Becerra insisted that there was little chance of SESTA being abused, because he had to prove beyond a reasonable doubt that a site was facilitating sex trafficking. But, in opening up civil claims to state AGs in the new bill, that's no longer true. Now we're talking about a "preponderance of the evidence" which is a much lower standard -- i.e., one that will be much, much easier for state AGs to abuse to shakedown tech companies.

And here's where this gets potentially much, much worse. We've already discussed the problematic nature of the "knowledge" standard directly within SESTA, but this new portion allowing civil cases by state AGs may make the problem drastically worse. Note that the text quoted above, opening up civil claims to state AGs, technically would amend 18 USC 1595 to add that paragraph above. But when you put it into context, you realize that 1595(a) notes that civil actions can be brought against anyone who "knew or should have known" was violating sex trafficking laws. So, suddenly, we're beyond the already problematic "knowledge" standard directly in SESTA, and now opening up civil claims from already aggressive state AGs, who can now argue that the standard is that a site "should have known" about the facilitation of sex trafficking on the site. That is, there's no more "knowledge" requirement at all.

That's... really bad.

And now we get to the second off-site article that's worth reading to understand why this is so problematic. Three years ago, Eric Lipton wrote a bombshell of an article in the NY Times, entitled Lobbyists, Bearing Gifts, Pursue Attorneys General, all about how lobbyists were focusing a tremendous amount of attention on state AGs to do their bidding for them, including attacking companies they don't like.

Attorneys general are now the object of aggressive pursuit by lobbyists and lawyers who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means to push them to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators, an investigation by The New York Times has found.

Among the many, many shocking things in that article, is the suggestion that some of the "investigations" by state AGs have something of a "profit" motive, rather than a public interest one:

Executives from the company that distributes 5-Hour Energy, for example, have contributed more than $280,000 through related corporate entities in the last two years to political funds of attorneys general.

Company executives wrote those checks after the investigation into false claims and deceptive marketing, which initially involved 33 states, opened in January 2013. Requests started to come in for contributions, including a phone call this year directly from Mr. Ferguson of Washington State, whose staff was involved in the inquiry.

In a statement after the company was sued by three states in July, the company strongly denied the allegations and compared being solicited for contributions to being pressured to pay “ransom.” It asked, “Is it appropriate for an attorney general to ask for money from a company they plan to sue?”

And, if SESTA passes, these same state AGs will suddenly be able to bring civil suits against companies -- potentially using a "should have known" standard, in which the end result may be a monetary settlement.

That Lipton article lays out example after example after example of companies making big donations to try to influence state AGs, and sometimes doing the legal legwork for them. And if you think this won't be used by certain companies to get state AGs to attack tech companies on their behalf, you haven't been paying attention. Remember, thanks to the Sony Pictures email leak, we know that the MPAA was literally passing around that Lipton article about influencing state AGs, and discussing how they needed to get in on that as part of "Project Goliath" -- their plan to harm Google -- which eventually led to the sketchy subpoena from Mississippi AG Jim Hood. Remember, the letter that Hood sent Google was actually written by the MPAA's outside lawyers.

So, once again, the question needs to be asked: why do state Attorneys General need the ability to file civil lawsuits under this bill, with a much lower standard to bring those suits?

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Filed Under: cda 230, civil, grandstanding, intermediary liability, knowledge, sesta, should have known, state attorneys general