Wikipedia Warns That SESTA Could Destroy Wikipedia
from the be-careful-what-you-aim-for dept
So much of the debate about SESTA has focused on three companies: Backpage, Facebook and Google. The focus on Backpage was because it's the go to example for why some claim this bill is needed (even though Congress passed another law two years ago to target Backpage, and that law has never been used, and even though there's already a federal grand jury investigating Backpage and there's nothing that stops the DOJ from going after Backpage under federal law). The focus on Facebook and Google is a bit more nebulous, but could be summed up as: "those companies are too big and should do more to stop bad stuff happening online." There's a pretty easy path from "Section 230 of the Communications Decency Act says internet platforms aren't responsible for what their users do" to "we need them to be more responsible" to "let's amend CDA 230." This line of thinking is problematic for any number of reasons that we've already discussed, so I won't go over them again now.
But, as we've tried to explain, SESTA doesn't just impact Backpage, Facebook and Google. Indeed, Facebook and Google are uniquely positioned to handle the burdens (bogus takedowns, trollish threats, baseless litigation) enabled by SESTA. We've already shown how SESTA leaves small sites like our own at tremendous risk (and we're still waiting for anyone -- but especially the bill's authors -- to explain how we avoid that risk), but lots and lots of other sites will be impacted as well.
Take Wikipedia for example. The Wikimedia Foundation has published an excellent article describing how Wikipedia only exists because of CDA 230 and how it creates the space for a site driven entirely by its userbase to exist. More importantly, the article, by Wikimedia's Leighanna Mixter, details three ways in which SESTA puts Wikipedia at serious risk by upsetting the careful balance created by CDA 230. And here's where it's important to remind people that CDA 230 actually does two things. Many of its largest critics, incorrectly, think that all CDA 230 does is give websites a free pass to ignore everything that happens on their platform. But it also encourages sites to moderate activity that they don't want on their platform by noting that they don't lose their immunity in doing some forms of moderation. It's this part of CDA 230 that gets less attention, but is potentially more important. And yet SESTA rips that apart. That leads to Wikimedia's first concern:
1. Website operators need freedom to review content without legal risks
The fundamental goal of Section 230 is to keep the internet free and safe by encouraging operators to host free expression and remove problematic content without the disincentive of possible lawsuits.
SESTA introduces a vague standard for website operators that expands liability for “knowing” support of certain criminal activity. This will encourage websites to avoid gaining knowledge about content (to avoid liability) instead of actively engaging in content moderation.
The post then drills down (as we have) to explain why the knowledge standard in SESTA (even as updated) leaves Wikipedia in serious danger. Because Wikipedia is maintained by thousands upon thousands of volunteers -- what will constitute "knowledge" of illegal behavior. If one of the volunteers comes across links to sex trafficking and fails to remove them, does that mean all of Wikipedia has "knowledge"? Do all editors of Wikipedia now need to be deputized to respond to sex trafficking issues? Does Wikipedia need to stop allowing volunteer editing (its entire basis of existing) and switch only to paid editors?
A second problem with SESTA is how it opens up any web platform to a whole variety of state laws that smaller sites are unlikely to be able to follow and understand (and which can change over time).
SESTA would amend Section 230 to allow, for the first time, civil and criminal liability for websites under state law as well as federal law in cases where the federal sex trafficking law has also been broken. This improves upon an earlier version of the bill, which would have allowed for much broader liability under state law. Website operators should not have to monitor and attempt to comply with differing laws in all 50 states. Doing so would require substantial time and resources just to stay aware of new laws and ensure compliance, which would be particularly difficult for a small company or nonprofit like the Wikimedia Foundation. It also would put operators in an impossible bind if two states passed laws with contradictory requirements.
Finally, perhaps the biggest concern is how SESTA opens up smaller sites to what's likely to be myriad new lawsuits, in part because people will be testing the contours of the new law, but also because the standards in the law are so vague. Again, Facebook and Google can handle themselves when faced with lawsuits. Smaller sites? Not so much. As we expressed in our earlier post, small sites like our own and other individually owned blogs will have tremendous difficulty dealing with frivolous lawsuits under the law, but even Wikipedia notes that this would be very damaging.
When plaintiffs target online speech, they often go after the website, not the speaker. It can be difficult to track down individual users, and suing a website may appear to be more lucrative. For two decades, Section 230 has protected websites with a shield from civil liability for user-created content. Critically, Section 230 does not prevent websites from being held responsible for their own actions — websites that are directly involved in illegal activities can already be prosecuted by the Department of Justice. However, SESTA would open up websites to more liability under federal and state law, likely resulting in increased litigation. Some of these lawsuits will be legitimate responses to improper conduct by websites; others may simply target the website over the speaker as an easier way to attack online speech. Even if these lawsuits are meritless, getting them dismissed demands significant time and resources.
Small internet companies, startups, and nonprofit websites like the Wikimedia projects lack the resources to defend against a flood of lawsuits. Websites shouldn’t be sued into the ground, or afraid to even launch, simply because of holes in Section 230’s protections. Any amendments to Section 230 must take into account their effects not just on large, well-funded tech companies, but on startups and nonprofit organizations as well.
For many people supporting SESTA, the discussion seems to start and end with "sex trafficking is bad, this bill says it targets sex trafficking and therefore it's good" (and maybe with a touch of "if it hurts big internet companies, that's fine, they deserve it.") But, the impact of SESTA goes way beyond that (not to mention it doesn't actually do anything to stop sex trafficking and could make the problem worse). It's good to see Wikimedia speak up -- and hopefully someone in Congress will finally start to understand why SESTA is such a bad bill.
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Filed Under: cda 230, intermediary liability, knowledge, lawsuits, section 230, sesta, user generated content, wikipedia
Companies: wikimedia
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At least we can agree that the intention of stopping sex trafficking is a good intention. And we can also agree that the road to hell is paved by those same good intentions. Can we?
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Collateral damage?
I'm guessing those who support SESTA (and friends) do not understand what collateral damage is and will simply gloss over the impact of their actions by pointing to the next shiny object.
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The bill is needed....
love it folks... or else!
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Re: The bill is needed....
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Wikipedia is not related to Wikileaks
Sigh.
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Re: Re: The bill is needed....
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Re: Re: Re: The bill is needed....
Contemplate monomania before you next post, it explains why you are getting nowhere.
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Re: Re: Re: The bill is needed....
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Some possible answers:
I don't think so. Of course, if he then posts about it in the moderators discussion areas and others respond and discuss it without removal, then yes. There is point where too many people within the organization are aware.
Then again, it's predicated on an editor not removing a link to something inappropriate. Wiki is pretty good about policing their entries.
"Do all editors of Wikipedia now need to be deputized to respond to sex trafficking issues?"
Shouldn't they be already? There is little reason for any part of Wikipedia to link to escorts or sex workers promotional material. It's not a huge expectation for Wiki to ask the editors to be very slightly more vigilant than they already are.
"Does Wikipedia need to stop allowing volunteer editing (its entire basis of existing) and switch only to paid editors?"
No reason to. Again, Wikipedia would be much more at risk if they were not generally good at policing their site already. There is little or nothing that wiki does right now, without changes, that could lead to problems for them under SESTA.
Let's make it clear here: If a prosecutor wants to go after someone or some organization, even without the law particularly on their side, they will. Backpage and CL have dealt with it already.
Nothing in Wikipedia could be shown that they generally facilitate sex trafficking. The knowledge standard is in part based on the level of facilitation. Wikipedia doesn't make it easy to get links to ANYTHING on their site, everything is moderated and moderated again to be sure. There would be no facilitation. So the rest appears not to matter.
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Re: Re: Re: Re: The bill is needed....
The only thing you have managed to say is... since what you said did not come from my leaders, I will ignore you.
I not just talking to only you guys, but to any others "willing" to listen that are not busy doubling down on the stupid. I know... the odds are against me... but enough time will go by when you all kill each other off over your bigotries and those like me will be able to have some peace for a short while again.
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Re: Re: Re: Re: The bill is needed....
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Could destroy Wikipedia?
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Re:
Almost no one even uses it as it is, huh? /s
You guys are getting more transparent all the time.
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SSDD
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Re: opens up smaller sites [ to a ] myriad of new lawsuits
This will not effect Google. It will not effect Facebook. And it won't effect any of the big OS vendors or the carriers. What it will do is create an expedited federal equivalent to SLAPP lawsuits. This is going to be used almost exclusively to threaten small and mid sized businesses, and typically those where minority speech is prevalent.
Make no mistake. SESTA is a declaration of war against the open Internet. They can't kill network neutrality without a fight, so they are going to just fine the shit out of every independent company out there, until only the mega-corps can afford to pass third party user content.
If 1% of programmers were being paid to make the Internet more free instead of of less free, all of this problem would have gone away a long time ago. But people gotta eat. Even if it means writing new dick pick applications instead of working on cryptographic frameworks for next generation Internet services.
Fix that particular economy, and the rest of it goes away.
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Re: Re: opens up smaller sites [ to a ] myriad of new lawsuits
Am I missing something about SESTA? How could it possibly be used again any OS vendors at all?
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solution partal to last problem
yup its self imposed censorship to protect ones self
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The amusing thing though, is there's no reason you couldn't spray paint that on, say, the wall of the US capitol building. If it gets washed off, then CONGRESS has both knowledge (in order to wash it off) and facilitation (it's their wall) in a sex trafficking crime.
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You have explained to yourself exactly why the courts won't bite on a single comment. Moreover, there is nothing that suggests the moderating clearly spammy (and even sexual) comments would suddenly create liability.
Now allowing tens of thousands of those comments to build up and be left online, and perhaps creating a link to "great sex worker comments" might hit the mark.
Criminal facilitation is generally offering substantial or significant assistance in committing a felony.
As an example, save for section 230, what Backpage has been doing with sex ads would appear to meet the definition of significant assistance. Save for section 230, he would already be rotting in jail.
So when Mike (and a few others) write scary stories about a single comment suddenly tossing your site under the legal bus, they know it's just not the case. Even Backpage's egregious and obvious pandering to sex workers only just makes it to the line.
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Is that so? Then what is the exact legal definition of 'sex trafficking' ? It's not a very narrowly defined and pinned down term. It'll cover a bit the very bad, as well as going to be abused a lot for things that definitely should not fall under the term.
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'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Moreover, there is nothing that suggests the moderating clearly spammy (and even sexual) comments would suddenly create liability.
Other than the fact that 'knowingly facilitating', terms which are not clearly defined(or defined at all as far as I can tell), opens a site up to liability under the bill, such that 'knowing' that your site/platform is 'facilitating' illegal content can be used against you, knowledge which moderation would show/strongly imply?
Something to keep in mind if your response is that criminal facilitation is generally better defined is that a) the bill doesn't explicitely lay out that standard, such that whether or not it applies is impossible to know ahead of time, and b) the bill also allows for AG's to file civil lawsuits, where the standard is even worse at "knew or should have known", such that a demonstration of 'knowledge' isn't even required for the charges.
As an example, save for section 230, what Backpage has been doing with sex ads would appear to meet the definition of significant assistance. Save for section 230, he would already be rotting in jail.
So Backpage was creating ads, or at the very least had significant input in their contents beyond formatting to fit the site, that they knew were for illegal services as opposed to simply might be? Because if that were the case then 230 wouldn't have protected them at all, as it offers no protections for content the ones running a site themselves create.
So when Mike (and a few others) write scary stories about a single comment suddenly tossing your site under the legal bus, they know it's just not the case.
By all means, point out the text of the bill that clearly and unambiguously lays out what does and does not leave a site liable for content that might be posted, and what they have to do to avoid liability.
You say they 'know' that what they are writing is baseless fearmongering, I say prove it. Show the part(s) of the bill that define what leaves a site open to being dragged to court, and what a site needs to do to avoid that fate, in particular the specific language in the bill that spells out what causes a site to lose their protections, not some vague 'don't let bad people post on your site' idea that is nothing more than your opinion.
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Re: Re: Re: opens up smaller sites [ to a ] myriad of new lawsuits
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Overzealous AGs and DAs are totally with you on that, until they are not.
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Criminal facilitation is generally offering substantial or significant assistance in committing a felony.
If that is so clear, then we don't need SESTA whatsoever, and it is merely another waste of time and money "we're doing something" law, like phoning/texting while driving laws, and should be opposed on those counts, if no others. It is plainly obvious criminal facilitation is already prosecutable, the shining example being the issue which started all of this.
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Re: Re: Re: Re: opens up smaller sites [ to a ] myriad of new lawsuits
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Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Actually, facilitating in legal terms generally is set at the state level, but you can read this site for a good example:
https://definitions.uslegal.com/c/criminal-facilitation/
Knowingly is also key here, but as we have seen with the Viacom / Youtube deal, the courts have a pretty high standard for knowing. Even though we all know youtube is full of copyright violating content. that level of "knowing" isn't enough.
"The word “knowingly” in law means consciously or with knowledge or complete understanding of the facts or circumstances. An individual is deemed to have acted knowingly in regard to a material element of an offense when."
Knowingly isn't "any knowledge or bit of knowledge" it's actually knowing in a specific term. It's for me the different between dealing with a spammer who posts "for a good time call judy 555-1212" and a site that sets up a "sex trade ads" section and charges money to post there.
"By all means, point out the text of the bill that clearly and unambiguously lays out what does and does not leave a site liable for content that might be posted, and what they have to do to avoid liability."
It's what Mike doesn't like to talk about, that terms like "knowingly" and "Facilitating" have meaning in legal terms, and the courts tend to use similar yardsticks when dealing with them. Mike has been very careful not to raise issues like the old "red flag knowledge" cases that he covered endlessly, which sort of proves that knowingly isn't any tiny scrap of knowledge, it's really knowing.
"You say they 'know' that what they are writing is baseless fearmongering, I say prove it. Show the part(s) of the bill that define what leaves a site open to being dragged to court"
Most laws have certain ambiguities in them. From RICO to immigration, there is always a way that the laws can be stretched or abused in either direction.
The previous attempts at prosecuting Backpage is a clear indication of where this law is going. Print mags, newspapers, and such that that run these sorts of escort ads have faced legal liability. Your community newspaper that had a careful worded "special words only pervs understand" ad didn't have problems. The building owner that removed the "for a good time call judy 555-1212" spray paint from his building didn't face prosecution.
What does a site need to do? Simply, don't pander to the sex trade. Know what the sex trade is, and knowing that many of the people working in it are not there of their own free will, it's an appropriate choice not to carry their ads, not to intentionally link to their sites, and not to intentionally allow their comments on your site. When you see their comments on their sites, in the exact same manner you would handle a child porn image, you remove it from your site, and potentially even contact authorities about it (if you so desire).
When you do those things, you are specifically knowingly NOT providing assistance, you are instead blocking them at every turn and taking steps to assure that your site isn't focused on helping illegal sex workers.
it's the basis of those terms in law, and the basis of how you and your site would look in front of the court.
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Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
It's what Mike doesn't like to talk about, that terms like "knowingly" and "Facilitating" have meaning in legal terms, and the courts tend to use similar yardsticks when dealing with them. Mike has been very careful not to raise issues like the old "red flag knowledge" cases that he covered endlessly, which sort of proves that knowingly isn't any tiny scrap of knowledge, it's really knowing.
Actually, I've discussed those cases in multiple SESTA posts, in part because THEY SHOW that the vague use of "knowledge" -- especially without the term "actual" before "knowledge" -- lead to long drawn out lawsuits over the uncertainty of what constitutes "knowledge." In the DMCA situation, you're talking about a case that took nearly 10 years to determine that "knowledge" means "actual knowledge" and that's ONLY FOR THE DMCA because of the specifics of the DMCA and the specific legislative history of the DMCA.
So, no, it wouldn't just magically port over to SESTA/CDA 230 that "knowledge" means actual knowledge. Instead, there would be litigation.
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Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Actually, facilitating in legal terms generally is set at the state level, but you can read this site for a good example:
Even assuming that those standards are the ones used, that would still leave sites having to worry about the differences in the law between fifty states, having to keep constant watch in case one of them changes in such a way that they need to update how they act. The major companies could keep up with that, risk possibly coming under fire under one standard even if they comply with the others, but a smaller site? Not a chance.
Knowingly is also key here, but as we have seen with the Viacom / Youtube deal, the courts have a pretty high standard for knowing. Even though we all know youtube is full of copyright violating content. that level of "knowing" isn't enough.
My memory seems to be having a bit of a hiccup, remind me again how well that standard protected Youtube? In particular how well did it protect them from a legal fight that pretty much no site not backed by a company with massive legal money to spend would be able to survive?
Now that you've focused on criminal standards however, and whether or not they may apply, let's get back to civil standards, which are much lower at the "know or should have known" level, such that the 'knowledge' requirement goes out the window and all they need argue is that a site should have known and did nothing. Sure this might not hold up in court, but when you're looking for an easy PR win you don't need to actually win legally, you just need to get enough to hold up as 'doing something', which various DA's have demonstrated they are not above doing.
It's for me the different between dealing with a spammer who posts "for a good time call judy 555-1212" and a site that sets up a "sex trade ads" section and charges money to post there.
I guess I do have to bring this up again, so once again, are there such things as legal adult ads and should sites be allowed to host them, or are there no such thing as legal adult ads and as such sites should not be allowed to host them?
It's what Mike doesn't like to talk about, that terms like "knowingly" and "Facilitating" have meaning in legal terms, and the courts tend to use similar yardsticks when dealing with them.
'Tend to' and 'similar' certainly doesn't sound like the clear and unambiguous language I was looking for. 'It's generally used this way in other matters' is not the sort of solid legal footing you'd want to base how you act with regards to user submitted content unless you want to risk it leaving yourself open to legal action.
Mike has been very careful not to raise issues like the old "red flag knowledge" cases that he covered endlessly, which sort of proves that knowingly isn't any tiny scrap of knowledge, it's really knowing.
Probably because whether or not it would apply is unknown, due to how vague the bill is, though you are of course free to point to the section of the bill laying out clearly that such a standard would be the one used.
Most laws have certain ambiguities in them. From RICO to immigration, there is always a way that the laws can be stretched or abused in either direction.
'Other laws can be abused too' is not a good counter argument. That there exists loopholes and ways to abuse other laws does not make the fact that this one leaves the door wide open to abuse suddenly acceptable. Ambiguity when it comes to a law regarding civil and criminal liability is a bad thing, and this law is nothing but ambiguous.
The previous attempts at prosecuting Backpage is a clear indication of where this law is going. Print mags, newspapers, and such that that run these sorts of escort ads have faced legal liability
Which might be because, and this is an important distinction, what they do in publishing a magazine/newspaper is different than what a site does in offering a platform for others to publish. They choose what to include, sites 'choose' what to exclude, and deal with content on a scope that positively dwarfs a magazine/newspaper. That you continue to conflate two wildly different things does not do you any good, and strikes me as a dishonest tactic.
If you're going to keep conflating the two and raising the idea of 'why do they get 'special' treatment?' you might as well state outright that you think they should be treated the same, and feel that the massive reduction in free speech that would result from this is an acceptable loss/'trade'. I'd still disagree strongly, but it would at least be honest.
What does a site need to do? Simply, don't pander to the sex trade.
[Citation to text in bill needed].
Know what the sex trade is, and knowing that many of the people working in it are not there of their own free will, it's an appropriate choice not to carry their ads, not to intentionally link to their sites, and not to intentionally allow their comments on your site.
[Citation to text in bill needed], along with answer to 'Is there such a thing as a legal adult ad?' question.
When you see their comments on their sites, in the exact same manner you would handle a child porn image, you remove it from your site, and potentially even contact authorities about it (if you so desire).
[Citation to text in bill needed].
Nothing you listed has any weight beyond an opinion, and when talking about civil and criminal liability unless you happen to be a supreme court judge who happens to frequent TD in your time off your opinion means squat.
Point to the sections in the bill that clearly and unambiguously lays out what causes a site to lose protections under the law, what they need to do to maintain protections, or admit that there is no clear way for a site owner to know ahead of time such that 'remove any content that might be problematic' is the safer alternative, which will cause significant collateral damage.
You keep arguing that it's 'simple' and 'obvious' what would leave a site open to legal action and what wouldn't, yet you continually fail to provide the text to back this up and fall back on 'well it would probably work this way'. You claim that it wouldn't be abused, that DA's wouldn't use it for person gain, ignoring the examples that demonstrate that DA's are not in fact perfect little angels above such cheap tactics.
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Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
There is no reason to think that the courts would look at SESTA much differently. There will almost certainly be some litigation, but you can be sure as shooting that the litigation won't be over a single comment on Techdirt. It's going to be over the big boy sites like Backpage who have made a business from helping out the whore mongering community.
I also think that you are missing a big part of the SESTA deal here. SESTA isn't really by itself creating a "crime". What it's doing is removing the section 230 protections for a very narrow type of crime (promotion of prostitution), which then in turn allows the normal laws that apply everywhere except the internet to be applied.
The real term in play is "knowing conduct". The Model Penal Code uses this:
"Knowingly: the actor is practically certain that his conduct will lead to the result, or is aware to a high probability that his conduct is of a prohibited nature, or is aware to a high probability that the attendant circumstances exist."
That's a pretty high bar. Generally, just running a website that accepts comments wouldn't reach that bar. Setting up a "all underage whores post here" section would.
Now, as for the question of civil litigation, but even that is pretty well covered here. They still end up having to show knowledgeable conduct which is unlikely to be made on a regular website.
So I am left a little bit lost here. You know yourself (have actual knowledge) that you can be sued for anything at any time. Changes to section 230 to narrowly change the scope to stop protecting people who with knowledgeable conduct "facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.". That seems pretty narrow, and requires not just an abstract knowledge but conduct as a result of that knowledge. It appears the moderating a forum isn't in that category at all - unless you intentionally leave the bad links up and promote them.
The only real risk appears to be in imputed knowledge. That for me e perhaps the more open door, but even that would require showing knowledgeable conduct, which isn't a low bar at all, no matter how you look at it.
So what is the risk, again?
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Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Although he hasn't explicitly stated it that I've seen, his position appears to be "there are such things as legal ads for adult products, but there are no such things as legal ads for adult services". If you want to try to pin him down on this, it might be useful to target the question more specifically at adult services.
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Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Many laws are not explicit as to their exact application. What is murder versus manslaughter? They don't spell it out exactly, a given number of stabs doesn't suddenly cross the line.
The line between dealing drugs and personal use? Not specifically spelled out. It's the nature of the law.
You read the law, and look at what it means, and look where it lands.
If you think the law spells everything out in exact "this is black, this is white" then you live in bizarro world.
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I think this maybe one of the intended goals, of not just SESTA but of other attempts also - some of which failed due to this and other problems.
Apparently, third party liability is a wet dream for some ....
some short term thinkers that do not look past their nose.
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Oh, I forgot ... that's all fake
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If they leave America, they will no longer have to follow US laws.
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Re: solution partal to last problem
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"You might be breaking the law, you might not be. Only way to find out is the hard way."
I'm not sure if I should be laughing or shaking my head in disbelief. You've gone from 'it's obvious/simple' to 'expecting it to be clear is crazy talk'. I certainly hope you at least drop your 'it's obvious what you need to do to avoid liability' claims going forth given this latest defense, as the two positions are not even remotely compatible.
Many laws are not explicit as to their exact application. What is murder versus manslaughter? They don't spell it out exactly, a given number of stabs doesn't suddenly cross the line.
Of all the examples you could have given... 'Murder: The accused intended to kill the victim and did so'. 'Manslaughter: While the accused killed the victim, they did not intend to do so'.
I'm pretty sure the actual legal definition is a lot more precise than you are making it out to be, and for good reason, because the difference between those two is significant in legal matters. Likewise with dealing/personal use, I would be rather surprised if that line wasn't pretty clear as well, because again it matters.
A vague law is a sloppy, bad law, because it makes it difficult if not nearly impossible to know what is and is not in violation of it ahead of time, which effects what people feel they can do versus what they can't. When that law impacts liability, and by extension free speech it goes from just 'bad' to 'terrible, throw it out immediately', because free speech is important enough that anything impacting it had better be damn well defined and clear, something you seem to be admitting is not the case here.
If you think the law spells everything out in exact "this is black, this is white" then you live in bizarro world.
If expecting the laws to be clear and precise in defining what is and is not in violation of them, such that someone can know ahead of time what they need to do to stay within the law versus what actions will be in violation are the sort of thing you'd expect from bizzaro world then it sounds like they've got a much better, much more sensible legal system than the one here, your standards for what passes as an 'acceptable' law are insanely low, or a mix of the two.
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Re: Re: Re: Re: opens up smaller sites [ to a ] myriad of new lawsuits
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Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
The courts ruled that "knowledge" wasn't some fuzzy "he mighta shoulda woulda known" but actual knowledge. There is no reason to think that the courts would look at SESTA much differently.
Of course there's also the point that abuse of the DMCA to waste someone else's time and money in a lawsuit they would never be found guilty for is common. Copyright law has been extended to cover silencing dissent and reputation management for sexual harassers. Any attempt at punishing abuse fails because there's always a prissy little prick like you screaming "Good faith! Good faith!" at the top of their lungs. And dang, those warrants be bitching, don't they? Won't someone think of the law enforcement, having to lower themselves by following the law they're enforcing?
Your heroes have long since proven that they can't be trusted with the powers they're demanding, and now you think that telling everyone "It's different this time, honest, cross my heart" is enough to convince everyone to surrender the benefit of the doubt, just to pick up another mess that you'll leave behind? Screw that.
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Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
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Re: "You might be breaking the law, you might not be. Only way to find out is the hard way."
Laws are generally not as clear as you seem to wish them to be. It's one of the reasons (as an example) that there are plenty of discussions around these parts about DMCA and willful false claims. The law says X, and the courts have set a pretty high bar based on it. The law itself is perhaps a bit vague, but the courts (as the generally do) erred on the side of using as high a standard as they feel the law allows.
"Of all the examples you could have given... 'Murder: The accused intended to kill the victim and did so'. 'Manslaughter: While the accused killed the victim, they did not intend to do so'."
Except that it's often a subject of debate in courts because it's a question of intent. Intent is the slippery thing of state of mind and a bunch of other things. There is no hard line, it's all grey. I don't know how you can handle that!
"I'm pretty sure the actual legal definition is a lot more precise than you are making it out to be, and for good reason, because the difference between those two is significant in legal matters. Likewise with dealing/personal use, I would be rather surprised if that line wasn't pretty clear as well, because again it matters."
Part of the problem I think you are having is that in legal terms, words have meanings and implications, not all of them are written into the law. Much of what is done in writing laws and pleadings before a court are done using certain words because, while they may have different meanings depending on how you take them, the courts have accepted one specific meaning to certain sequences and phrases. In following those rules, we avoid having every word and every nuance of laws subject to review. Much of the framework, even if not explicitly written for you in that specific law already exists as accepted phrases and sequences in law.
"A vague law is a sloppy, bad law, because it makes it difficult if not nearly impossible to know what is and is not in violation of it ahead of time, which effects what people feel they can do versus what they can't. "
See, I don't get that.
The law is (a) limited to sex trafficing ("to ensure vigorous enforcement of Federal criminal and civil law relating to sex trafficking"), and (b) limited to "sex trafficking of children" and "sex trafficking by force, threats of force, fraud, or coercion", and (c) "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"
So then you go look at 1591, section 1(a), which is what SESTA specifically points to, and it says:
"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"
So, lets go through the list. Websites don't recruit, they don't entice, they don't harbor, they don't transport, they don't provide, they don't obtain, they don't maintain, they don't patronize, and they don't solicit for underage sex.
So only thing left is advertise.
So now, we are down to a pretty narrow thing. Your "vague" law suddenly seems very, very specific, doesn't it?
So, based on this, it's pretty clear: Don't accept advertising for sex workers / prostitution.
See, part of the problem in this whole discussion is that you (and Mike, and others) are taking the law as little bits and pieces, without putting it all together. The law is limited to violations of Section 1591 1 (a).
Put in other terms, in order for SESTA to apply, your website would have to violate section 1591, 1 (a).
So the only place you are left to wonder is the definition of advertising. Now this is way more interesting. Is a post by an individual, a comment, or a new thread on a discussion board an advertisement or a publication? If I take the local Techdirt view, each writer is their own publisher. Every post on facebook, twitter, whatever is a "publication" by the original writer. It's not an advertisement, it's a personal publication.
On that basis, the only things that would be advertising would be things like banners, paid links, or (shock) classified ads.
Wow, the law is getting pretty narrow here!
My suggestion? Rather than going on another long rant, take the time to read SESTA, and read all that it points to. Place all the parts into the law, read the law as amended, and see what you have to do to break the law. It's actually pretty clear.
Oh, the civil actions? Doesn't really change anything. "Nothing in this section shall be construed to impair the enforcement or limit the application of section 1595 of title 18, United States Code." - this line is only to make it so, like in the real world, civil suits can proceed and are not impaired by anything in this law. It doesn't make it any easier to sue a website than to sue a print newspaper or inky ad rag. It just stops making it much harder.
Summary: The only question I can see is "is a comment advertising?". Without links (because you can easily ban links from user comments or send them to moderation for review first) it seems very unlikely that anything makes it up to the level of advertising. So, well... Hmmm.
Enjoy your reading.
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Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
I know you like to insist you're not a troll, but when you respond this way, in which you deliberately ignore the points I actually raised in my comment, it's difficult to conclude you're anything more than a troll.
The point is that we have been down the road before, and we know the result. You use to go on about how vague DMCA was, often on the very point of "knowledge" or "red flag knowledge" or whatever other terms came up. The courts ruled that "knowledge" wasn't some fuzzy "he mighta shoulda woulda known" but actual knowledge.
As I stated in my original comment, the ruling in the court saying "actual knowledge" was necessary took many years and back and forth in multiple courts and (and this is the important part) is clearly LIMITED TO JUST THE DMCA and DOES NOT APPLY TO THE KNOWLEDGE STANDARD IN OTHER LAWS. And that's because of the specifics of the 512 safe harbors in the DMCA, which require specific steps taken before you can be liable. Based on that the court (correctly) determined that Congress must have meant actual knowledge.
Here, there is no safe harbor. Congress is not including that same language, and the standard inserted here is devoid of any such mitigating factors. Perhaps a court will decide (many years, and millions of dollars later) that an "actual knowledge" standard would work here too. But it's just wrong for you to pretend that a court ruling in a specific context clearly applies here too.
Indeed, if that is indeed what Congress intends, it could just change the term to "actual knowledge" rather than "knowledge." And it could adjust the language in 1595 to take out "or should have known." Or it could add in safe harbors. It has done none of those things, and thus your suggestion is one of the following: (1) trollish (2) ignorant (3) non-sensical. It's possible that it's all three.
There is no reason to think that the courts would look at SESTA much differently.
Yes, there are millions of reasons to think they will, as explained above. SESTA does not have the same conditions as the DMCA on which the courts based their ruling.
There will almost certainly be some litigation, but you can be sure as shooting that the litigation won't be over a single comment on Techdirt. It's going to be over the big boy sites like Backpage who have made a business from helping out the whore mongering community.
We've seen sites sued for much less. So, if you're promising to indemnify any site that is our size for any lawsuit, please let me know. I'm sure quite a few will take you up on that.
I also think that you are missing a big part of the SESTA deal here. SESTA isn't really by itself creating a "crime". What it's doing is removing the section 230 protections for a very narrow type of crime (promotion of prostitution), which then in turn allows the normal laws that apply everywhere except the internet to be applied.
Almost everything in the above paragraph is wrong. First, we never said it was creating a new crime, so not even sure why you'd argue against a strawman. Second, the changed to CDA 230 is not for "promotion of prostitution" but for "sex trafficking of children or by force, fraud or coercion." The problem -- as we've explained in detail, is that it's not a "narrow" exception, because the entire point of SESTA is not to go after those violating that law, but rather to criminalize the platforms FOR ALLOWING people breaking that law to use their platforms for such purposes.
The real term in play is "knowing conduct". The Model Penal Code uses this:
You're out of date. "Knowing conduct" was in the original version, but removed from the manager's amendment.
You're such a bad troll that you don't even know what law you're talking about while trying to sound smart.
That's a pretty high bar. Generally, just running a website that accepts comments wouldn't reach that bar. Setting up a "all underage whores post here" section would.
Again, people with actual law degrees and experience, not just comment trolls, say you're 100% wrong.
Amusingly, if you're the same troll I think you are, you should be a lot more worried about SESTA, rather than cheering it on. I remember some of the sites you ran way back when. Don't know if you still do, but more than a few of them would almost certainly violate SESTA.
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Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
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Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
(1) you seem intent in your post on attacking me the person instead of the points, and more importantly
(2) why you haven't explain the law in it's entirety.
SESTA requires that you violate USC 18 section 1591 - (a) 1. When you talk about SESTA, you seem to take each item and each phrase in a sort of disconnected empty space, with no relation to the rest of the law. SESTA is really clear that it applies only to child sex workers and forced sex workers (ie, prostituted "owned" by a pimp). If you are not in violation of 1591 (a) 1, then the rest is effectively meaningless.
The civil action thing is the same. It doesn't create some sudden new type of liability that didn't exist before, it only removed the (IMHO overbroad) protections of section 230 which allowed sites like Backpage to do this sort of thing.
Taken on the whole, the law is very narrow and very restricted. It only removed section 230 protections if you are violating 1591 (a) 1, which states:
"(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;"
As I mentioned below, your website (and that of Wikipedia for that matter) do none of those things. Notice that it talks in terms of "a person", so each of those terms needs to have "a person" added to them for full effect.
So the only thing is "advertise a person". You don't recruit, entice, harbor, transport, provide, obtain, maintain, or patronize a person in the sex trafficking.
"You're out of date. "Knowing conduct" was in the original version, but removed from the manager's amendment."
Actually, that makes it even better. Participating in a venture makes it much clearer that you have to be working towards a common goal. Random posts on your site (that your moderate and delete) do not show any form of participation in a venture, in fact you would appear to be doing everything to avoid such participation.
As I said, simply holding for moderation posts with links in them would cure about 99.9% of this stuff up front.
"if you're the same troll I think you are"
How about you get over the concept of "troll" and keep writing about the ideas like you did in most of the rest of your response. The personal attacks really lower the discussion. If you want everyone to play nice and talk ideas and not attack people, set the example yourself.
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Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Why does section 230 need weakening? All it does is protect the web site from the action of others, and does nothing to protect the web site owner from their own actions. It will become another tool for those who would censor the Internet.
And also increase the cost of running a web site, as moderation does not come for free, especially where a mistake can have significant legal consequences.
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Re: Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
The issue is that section 230 creates two problems that make it hard to enforce existing laws that apply to everyone except online services. It means that an online service can have a business model (sex worker ads) that does not legally work very well in the real world, and it also allows for essentially anonymous posting of these ads that create a legal dead end for authorities. As a side note, it would be very easy for a site to operate and claim all the ads on it were "user generated" while in fact creating them on their own. Section 230 would make it very hard (effectively impossible) to have a remedy to that sort of behavior.
"also increase the cost of running a web site"
Not really. As I have already shown, the law is restricted to violations of a single section of 1591 law, specifically (a) 1. That lists specifically the type of actions required to break the law. SESTA cannot be applied unless it's in conjunction with a violation of that law. So if you aren't running escort and sex worker ads, and moderate comments with links, it seems that nothing else changes (at all).
It's actually much better spelled out that anyone seems to want to admit.
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Remember, traffic in minors for sex is a crime in almost every country and would likely rise to the levels of extradition. So it's not as easy to play hide and seek as you think!
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And before you say "Sarbanes Oxley:, that does not apply outside the United States. So, wiping your hard disk, say, in Australia to erase evidence, is not subject prosecution, as Sarbanes Oxley only applies if it is done within the territory of the United States.
That is why I can, contrary to what some people think, wipe my phones and laptops, and re-install all my programs, while still in Mexico, before crossing the border, and not subject to Sarbanes Oxley. Sarbanes Oxley doe not apply to Mexico.
The same with Canada. If I wipe and reinstall, say, in my hotel room, if visiting Canada, and Sarbanes Oxley would not apply, because it was being done in a hotel room Canada, where my activities would only be subject to Canadian laws.
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Re: Re: Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Not bad for some jackass that got caught trolling Torrentfreak. You want to bitch about lowering discussion? Physician heal thyself!
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Re: Re: Re: Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
I go after ideas and grandstanding. I don't go after people - unless of course, they are making it personal themselves. I often point out that Karl (as an example) seems to miss obvious things or writes very one sided stories. I don't know Karl from Adam, and I don't really care to. He is just another writer with an axe to grind. But I always discuss what he is writing about!
I don't post at Torrentfreak, never had. I don't like the shared comment system (it tracks you site to site, which isn't a good thing) so I decline to take part in their site. It would be pretty hard to lower the discussion over there, IMHO, nor would it be my intention.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: 'Yeah they want to point a gun at you, but don't worry, they won't pull the trigger.'
Try logging out and posting from your mobile phone next time.
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Re: Re: "You might be breaking the law, you might not be. Only way to find out is the hard way."
"The term 'participation in a venture' means knowingly assisting, supporting, or facilitating a violation of subsection"
..
So, lets go through the list. Websites don't recruit, they don't entice, they don't harbor, they don't transport, they don't provide, they don't obtain, they don't maintain, they don't patronize, and they don't solicit for underage sex.
So only thing left is advertise.
Not so, because as Mike pointed out above the law isn't targeting those that are that in violation of that section, it is targeting the sites those violating it use. A website wouldn't have to do any of the things listed there to face liability, they would merely need to be accused of 'knowingly assisting, supporting, or facilitating a violation' of those things, and that is a much lower bar, and brings back the question of what exactly those terms mean.
And in fact it gets worse from there, because 'knowingly' isn't even the bar 1595 sets, it's 'knew or should have known has engaged in an act in violation of this chapter'. To put it mildly that's a loophole large enough to drive trucks through, and it's one that you can be damn sure that various DA's will be chomping at the bit to 'test', which stands to be a very unpleasant experience for whoever they go after.
So, based on this, it's pretty clear: Don't accept advertising for sex workers / prostitution.
Well damn, why didn't I think of that? You are absolutely right, websites merely need to pay attention to the content submitted to their platforms so that they can spot the 'This ad is for an illegal service' line that all such user submissions must by law contain, and just reject those that have it. No wonder you've been so frustrated, the solution was staring everyone in the face all this time and we just couldn't see it before you pointed it out to us.
It may surprise you to learn that those offering illegal services/content tend not to be gigantic idiots(or if they are, they tend not to be a problem for very long), such that your 'simple' solution to avoid liability is anything but.
'Don't allow those offering illegal services to use your platform' might make for a snappy soundbite, but in practice it's not even remotely as simple as it sounds, and stands to cause significant collateral damage as anything that might be for an illegal service gets the axe 'just in case'. And with civil and criminal charges in the wings for violations you can be quite sure that said axe would be getting a lot of use.
It doesn't make it any easier to sue a website than to sue a print newspaper or inky ad rag. It just stops making it much harder.
And of course you conflate two different things(digital platforms with physical publishers) again, as though there is just no possible reason the two might be treated differently because they're just so very similar, like bicycles and airplanes. There is a reason the two are treated differently, because they are fundamentally different, and treating them the same would have serious negative repercussions.
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Re: Re: Re: "You might be breaking the law, you might not be. Only way to find out is the hard way."
That doesn't appear to be correct. Read the laws. You can only by in violation by doing one of the specifically listed things, and knowingly giving space for them to occur.
"Well damn, why didn't I think of that? You are absolutely right, websites merely need to pay attention to the content submitted to their platforms so that they can spot the 'This ad is for an illegal service' line that all such user submissions must by law contain, and just reject those that have it. No wonder you've been so frustrated, the solution was staring everyone in the face all this time and we just couldn't see it before you pointed it out to us."
Wow, such snark! Seriously, prostitution is illegal (except in every county except Clark country in Nevada). Sites like Backpage were already filtering their sites enough to charge money for these ads (they know which one they are), so they clearly aren't hard to spot.
That one might slip through into general categories doesn't show a knowing participation in anything. You spot it, you remove it, and clearly you aren't knowingly supporting anything.
"And of course you conflate two different things(digital platforms with physical publishers) again, as though there is just no possible reason the two might be treated differently because they're just so very similar, like bicycles and airplanes. There is a reason the two are treated differently, because they are fundamentally different, and treating them the same would have serious negative repercussions."
They are exactly the same UNTIL one chooses to forego editorial control over their publications. Saying "it's a website, therefore nobody can be responsible" ignores that the lack of control is by choice, and not be nature.
I think again you need to read the law as a whole. Each one of your statements is based on Mike's opinion of the law. However, he appears to have particularly ignored an overall reading of the law to instead pick at individual points without reference to the rest of the law. His readings are correct in that sense, but since the courts apply the law as a whole and not as individual statements without reference, I think his views may not be as accurate as he is pushing.
The truth is, Mike has a personal interest in maintain section 230 as a single solid and unyielding wall. So when he interprets the law, he will always get very animated and over the top for anything that puts even the smallest hole in that wall, and he will try with all of his skill to build up the combination of facts, facty-opinions, and pure opinion to make his point.
The law itself says otherwise. If you aren't breaking usc 18, 1591 (a) 1, then SESTA does not apply to you. If you are not offering knowing help to those who are doing so, then SESTA doesn't apply to you. If you become aware of someone using your platform / site to do so and you fail to take action (ie, remove the posts, discourage the behavior, delete the user, whatever) then yes, SESTA applies to you.
The civil part? It built on the same sort of standards (although the bar is lower as civil cases are).
Is SESTA potentially problems for wild west, uncontrolled websites? In a word, yes - and as it should be.
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Re: Re: Re: Re: "You might be breaking the law, you might not be. Only way to find out is the hard way."
That doesn't appear to be correct. Read the laws. You can only by in violation by doing one of the specifically listed things, and knowingly giving space for them to occur.
I did, and no you don't need to violate the core law, you merely need to be accused of facilitating violations of it.
This is section a(1) and (2):
(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; or (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),
So a(1) defines what the crime is and what it involves, a(2) says if you do the things listed in a(1) you're liable. As it stands now you are correct in that you actually have to violate a(1) to be liable under the law, as that's how 'participation in a venture' is listed.
However, now let's move on to the addition that SESTA would stick in there.
"The term 'participation in a venture' means knowingly assisting, supporting, or facilitating a violation of a(1)."
Looks pretty clear to me. You don't need to violate a(1), you merely need to 'assist, support or facilitate a violation' of it.
It also seems worth noting that contrary to your 'expecting the terms to be clearly defined in excessive' argument the entirety of section e of § 1591 is all about defining what specific terms mean.
They spend several paragraphs all told laying out specific definitions of “abuse or threatened abuse of law or legal process”, “coercion”, “commercial sex act”, “serious harm” and “venture”, such that the idea that it would be unrealistic for them to stick in definitions for what exactly constitutes 'knowledge' and 'facilitate' runs contrary to what's already in the law.
Wow, such snark! Seriously, prostitution is illegal (except in every county except Clark country in Nevada). Sites like Backpage were already filtering their sites enough to charge money for these ads (they know which one they are), so they clearly aren't hard to spot.
[Citation needed]. Point to the examples where an ad was clearly and obviously for an illegal service, someone at Backpage knew it was for an illegal service, and left it up anyway. General 'people are posting ads for illegal services' doesn't cut it, provide examples where they knew of specific illegal content.
Knowing that a person lists an ad as 'adult' likewise does not meet the bar of knowing it is for an illegal service, unless you are arguing that there is simply no such thing as a legal adult service.
Not to mention, if the ads are so very clearly for illegal services then police should be making arrests left and right. They've not only got people posting ads for blatantly illegal services, they're providing their contact information in the process. If the police were actually interested in stopping the problem rather than brushing it under the rug and pretending that if you can't see it it isn't there then they should love seeing ads like that, as it practically does their work for them.
They are exactly the same UNTIL one chooses to forego editorial control over their publications. Saying "it's a website, therefore nobody can be responsible" ignores that the lack of control is by choice, and not be nature.
Yes, how fiendish of them not to treat an open platform like a closed publisher by refusing to do something they have no obligation to do and that would undercut what makes the platform useful in the first place. How utterly diabolical for them to choose not to pre-vet what's posted, which would dramatically decrease what can be posted, massively increase costs and leave themselves open to accusations of blame should they miss something.
As for responsibility you seem to be beating up a strawman position. The idea isn't 'nobody is responsible!', it's that responsibility is clearly attached to who actually did something, and you're trying to make the platform responsible for the content their users post.
The truth is, Mike has a personal interest in maintain section 230 as a single solid and unyielding wall.
Yes, go figure, a person who faces potential legal risks under a terrible law has a personal interest in the specifics of that law and the damage it stands to cause. Who would have imagined that?
But you of course, you are looking at this from a completely unbiased perspective, one where you have no preconceived notions of 230 at all such that you can calmly and objectively weigh the law on it's merits. I mean it's not like you've spent who knows how long saying that 230 protections are a bad idea and and would jump on any excuse available to see holes shot through them.
The law itself says otherwise. If you aren't breaking usc 18, 1591 (a) 1, then SESTA does not apply to you.
False, as I demonstrated above.
If you are not offering knowing help to those who are doing so, then SESTA doesn't apply to you.
A matter of opinion, and hinging upon non-defined terms of 'knowing' and 'facilitating'.
If you become aware of someone using your platform / site to do so and you fail to take action (ie, remove the posts, discourage the behavior, delete the user, whatever) then yes, SESTA applies to you.
Likewise a matter of opinion, and now you need to define 'discourage the behavior' and 'whatever' as well.
Pretend, just for a moment that you are running a site and a law stands to leave you liable to civil and/or criminal charges for what your users submit. Would you feel safe if someone defended the law as vaguely as you have defended this one and assured you that you totally didn't have anything to worry about so long as you didn't do/allow 'bad stuff'.
The civil part? It built on the same sort of standards (although the bar is lower as civil cases are).
Well it's a good thing the various state DA's have demonstrated that they would never take advantage of a change in the law that not only punched in hole in liability protections but dramatically lowered the bar.
In fact saying the standards are 'lower' is a gross understatement, because 1595, which allows for civil actions which the DA's could then avail themselves of sets the standard at 'knew or should have known', such that, as multiple people have pointed out by now a demonstration of knowledge isn't required to bring a lawsuit. The bill not only fails to clearly define what exactly constitutes 'knowledge', but it then sets the bar even lower than that.
Is SESTA potentially problems for wild west, uncontrolled websites? In a word, yes - and as it should be.
Indeed, curse that 'wild west' were sites could blatantly get away with not acting as publishers, pre-vetting all content and shooting first and asking questions later(if ever), just to avoid any potential liability.
I mean really, what possible gain has society received from open platforms not having to worry about civil and/or criminal charges for what their users have submitted, such that they can safely allow just about anyone to post and not have to take the axe to anything that reaches the level of 'might be questionable'?
Truly, society will be much better off if sites take up the responsibility that they have shirked for so long, and put an end to that 'anonymous posts' and 'open platforms' rubbish.
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