Did Facebook Violate SESTA By Promoting Child Abuse Videos?

from the maybe-rethink-that-support,-sheryl dept

Tue, Mar 20th 2018 9:18am — Mike Masnick

Facebook -- and Sheryl Sandberg in particular -- have been the most vocal supporters of SESTA. Sandberg wrote a bizarre Facebook post supporting the horrible SESTA/FOSTA Frankenstein bill the day it was voted on in the House. In it, she wrote:

I care deeply about this issue and I’m so thankful to all the advocates who are fighting tirelessly to make sure we put a stop to trafficking while helping victims get the support they need. Facebook is committed to working with them and with legislators in the House and Senate as the process moves forward to make sure we pass meaningful and strong legislation to stop sex trafficking.

Which is weird, given that the bill does nothing to actually stop sex trafficking, but it does place potentially criminal liability on any internet site that knowingly facilitates sex trafficking. Like... say... Facebook. You see, last week, there was a bit of a kerfuffle when Facebook suddenly started pushing horrific child abuse videos on its users.

The social network’s search suggestions, which are supposed to automatically offer the most popular search terms to users, apparently broke around 4am in the UK, and started to suggest unpleasant results for those who typed in “video of”.

Multiple users posted examples on Twitter, with the site proposing searches including “video of girl sucking dick under water”, “videos of sexuals” and “video of little girl giving oral”. Others reported similar results in other languages.

While Facebook has since apologized for this and claimed that it is committed to taking down such content, how hard would it be for someone to make a case that the company had just engaged in pushing child pornography on unsuspecting users, and there could be a credible claim that many of the videos involved victims of sex trafficking.

And, of course, this comes right after another possibly SESTA-violating fiasco at Facebook in which the company sent out a survey about whether the site should allow adult men to ask for sexual pictures of teenaged girls. No, really.

On Sunday, the social network ran a survey for some users asking how they thought the company should handle grooming behaviour. “There are a wide range of topics and behaviours that appear on Facebook,” one question began. “In thinking about an ideal world where you could set Facebook’s policies, how would you handle the following: a private message in which an adult man asks a 14-year-old girl for sexual pictures.”

The options available to respondents ranged from “this content should not be allowed on Facebook, and no one should be able to see it” to “this content should be allowed on Facebook, and I would not mind seeing it”.

A second question asked who should decide the rules around whether or not the adult man should be allowed to ask for such pictures on Facebook. Options available included “Facebook users decide the rules by voting and tell Facebook” and “Facebook decides the rules on its own”.

After this became public and people called it out, Facebook also claimed that this was "an error," but it seems like it wouldn't take a genius lawyer or prosecutor to argue that the company choosing to send out just such a survey shows it facilitating sex trafficking. I mean, it was directly asking if it should allow for the sort of activity directly involved in grooming victims for sex trafficking.

Oh, and remember, that even while this is blatantly unconstitutional, SESTA says the law applies retroactively -- meaning that even though all of this happened prior to SESTA becoming law, Facebook is potentially still quite guilty of violating the poorly drafted criminal law it is loudly supporting.

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Filed Under: child abuse, grooming, sesta, sex trafficking, sheryl sandberg, suggested videos, videos
Companies: facebook

24 Comments

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Ninja (profile), 20 Mar 2018 @ 7:31am

Ooooo, retroactively you say? This should be very, very interesting. Let it pass. Then let's all go after Facebook with blood in the eyes. We'll see how fast they start pushing back hard via all means possible.
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Anonymous Coward, 20 Mar 2018 @ 9:28am

Consistency in drafting

that even while this is blatantly unconstitutional, SESTA says the law applies retroactively

It's nice to see that the authors of SESTA didn't go for just a little bit of unconstitutional action in one part of the law, but instead weighed it down with multiple unconstitutional provisions across several areas.
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Anonymous Coward, 20 Mar 2018 @ 9:58am

Re: Consistency in drafting
And that may lead to the bill being taken down in court for being unconstitutional.
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Anonymous Coward, 20 Mar 2018 @ 10:00am

Re:
ex post facto laws are unconstitutional. Just one more example of how easy it is to get people to dump on the constitution when it serves their agendas.
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Anonymous Coward, 20 Mar 2018 @ 10:11am

Re: Re:
It's often been reported that Facebook keeps everything forever, so something that was legally posted could nail Facebook once the law changes.
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Anonymous Coward, 20 Mar 2018 @ 10:25am

Re: Re: Re:
Interesting theory. If the content is still posting or visible AFTER the law take affect then yea, it would not run afoul of ex post facto prohibition.

If they take it down, then it may no longer be a violation. I don't know if getting rid of all signs of its existence is a requirement.
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Anonymous Coward, 20 Mar 2018 @ 10:30am

Actually, retroactive is okay when content is criminal NOW.
Masnick, you simply don't understand law.

Corporations don't get IMMUNITY for the past is what the language means.

SESTA just REMOVES STATUTORY PRIVILEGES granted to corporations while the actual law for new businesses was sorted out. That experimental period is OVER.

Now, does that mean prosecutors will be rummaging through a decade of Facebook posts? -- I doubt it, maybe the most egregious, but those posts are criminal right now, so it's fully Constitutional to FINE Facebook because it should have been policing by common law principles all along. Facebook neglected the duties it agreed to as condition of its very existence.

Corporations are to serve The Public's Good, not just to gain money for the few.
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Anonymous Coward, 20 Mar 2018 @ 10:36am

And we see how quickly the worm can turn.
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Mike Masnick (profile), 20 Mar 2018 @ 10:38am

Re: Re: Consistency in drafting
And that may lead to the bill being taken down in court for being unconstitutional.

I fear that because some parts are blatantly unconstitutional, and other parts are just probably unconstitutional, it may lead a court to focus on the worst parts, and not the rest of it.
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Anonymous Coward, 20 Mar 2018 @ 10:47am

Re: Actually, retroactive is okay when content is criminal NOW.
What you think of as public good has the result that corporations do not allow user posts, as it would make them liable for other peoples actions, just like SESTA is doing.
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ShadowNinja (profile), 20 Mar 2018 @ 10:53am

Re: Re: Re: Consistency in drafting
It essentially depends on what the judge(s) want to do.

Law makers at times put provisions in a law that says that if part of the law is struck down in courts, the rest of the law is to still stand.

Unless SESTA contains such a provision a judge is free to do either for having a blatantly unconstitutional clause.
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Ninja (profile), 20 Mar 2018 @ 11:11am

Re: Actually, retroactive is okay when content is criminal NOW.
"Masnick, you simply don't understand law."

Says the guy who not only doesn't understand but seems to have a deep aversion in even trying to learn.

You cannot criminalize something and punish things that happened before the law took force. This is unconstitutional in any democracy.
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Anonymous Coward, 20 Mar 2018 @ 11:12am

Re: Actually, retroactive is okay when content is criminal NOW.
You don't know what common law is.
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Anonymous Coward, 20 Mar 2018 @ 11:25am

Re: Re:

ex post facto laws are unconstitutional.

And yet it happens all the time, and sometimes the Supreme Court says it's OK.
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Anonymous Coward, 20 Mar 2018 @ 11:29am

Remember when you said you’d stop saying common law?
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Anonymous Coward, 20 Mar 2018 @ 12:09pm

Haha Silicon Valley is now eating their own.
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btr1701 (profile), 20 Mar 2018 @ 12:30pm

Re: Ex Post Facto
Has no one in Congress ever even read the Constitution?

Are they completely unaware of its prohibition on ex post facto laws? Or are they just passing a law they know is unconstitutional, fully expecting the court to strike it down, so that they can then go home to the constituents and boast proudly that "I tried to Do Something™ for The Children™, but the courts blocked my valiant effort, so vote for me again because I'm such a crusading patriot who's fighting the Good Fight™!"
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Anonymous Coward, 20 Mar 2018 @ 12:56pm

Re: Re: Ex Post Facto
As far as they're concerned they did something. If it stands then they'll say how crucial they were and how they did something and if it does get struck down they'll just say how they made a valiant effort but they're so noble!

Either way they get to grandstand.
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ECA (profile), 20 Mar 2018 @ 1:43pm

i FIND IT FUNNY, again..
That Laws are being FOCUSED..
not an OPEN law based on EVERYTHING..
All the papers, all the books, and the internet..

Why isnt the law against personal actions?? and not restricting public information?

But we ALREADY have these laws.. including regulations on paper publications..
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Anonymous Coward, 20 Mar 2018 @ 2:16pm

Re: Re: Re:
Correct, which proves that SCOTUS or any lower courts for that matter are no longer providing checks against unconstitutional behaviors.

If an insurrection formed because of it, I would not stand in its way.
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Anonymous Coward, 20 Mar 2018 @ 2:19pm

Re: i FIND IT FUNNY, again..
because killing the messenger is a thing... and who likes to kill messengers? Not the good guys.
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Rekrul, 20 Mar 2018 @ 3:29pm

Did the videos suggested by the Facebook's search autocomplete actually exist, or was it just a case of suggesting inappropriate search terms? Bing's image search has been known to give suggestions for things that don't actually exist, just because other users have searched for them.
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Anonymous Coward, 20 Mar 2018 @ 5:48pm

Re: Re: Re: Ex Post Facto
And there a high likelihood that SESTA will be struck down.
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Anonymous Coward, 20 Mar 2018 @ 7:38pm

Re:
If retroactivity actually applied your precious RIAA would be on the hook for most of the copyright "enforcement" they'd been doing which would qualify for the same sort of treatment Paul Hansmeier is getting.
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