Amended Complaint Filed Against Backpage... Now With SESTA/FOSTA
from the because-of-course dept
What a weird week for everyone promoting FOSTA/SESTA as being necessary to takedown Backpage.com. After all, last Friday, before FOSTA/SESTA was signed into law, the FBI seized Backpage and all its servers, and indicted a bunch of execs there (and arrested a few of them). The backers of FOSTA/SESTA even tried to take credit for the shutting down of the site, despite the fact that the law they "wrote" wasn't actually the law yet. Separately, as we pointed out, after the bill was approved by Congress, but before it was signed into law, two separate courts found that Backpage was not protected by CDA 230 in civil suits brought by victims of sex trafficking.
On Wednesday, President Trump finally signed the bill despite all of the reasons we were told it was necessary already proven to be untrue (and many of the concerns raised by free speech advocates already proven true). And, on Thursday, in the civil case in Massachusetts (the first to rule that Backpage wasn't protected by CDA 230 for ads where it helped create illegal content), an amendment complaint was filed, this time with FOSTA/SESTA included. Normally, this wouldn't make any sense, but thanks to the unconstitutional retroactive clause in FOSTA/SESTA it could possibly apply (assuming the judge ignores the Constitutional problems).
From the amended complaint:
In March 2018, Congress passed the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (“FOSTA”), and the President signed it into law on April 11, 2018. Pub. L. No. 115-___, ___ Stat. ___ (2018) (codified at, inter alia, 47 U.S.C. § 230). FOSTA specifically states, among its legislative findings, that Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230, “was never intended to provide legal protection to websites that . . . facilitate traffickers in advertising the sale of unlawful sex with sex trafficking victims,” and that “websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.” FOSTA § 2(1)-(2). Accordingly, Congress passed FOSTA to “clarify that section 230 of [the CDA] does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation or sex trafficking.” ... FOSTA amended, inter alia, Section 230(e) of the CDA to provide that “[n]othing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit . . . any claim in a civil action brought under section 1595 of title 18, United States Code, if the conduct underlying the claim constitutes a violation of section 1591 of that title.” Id. § 4(a). FOSTA also provides that its amendment to Section 230(e) “shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after [FOSTA’s] date of enactment.” ... The effect of FOSTA is to ensure that website operators like Backpage can be held civilly liable to their victims for their violations of federal criminal law.
And thus, the retroactive clause is already in play. Assuming Backpage continues to fight this, you have to imagine it will note the serious constitutional problems with retroactive clauses like the one in FOSTA/SESTA.
But, that of course, depends on Backpage being around to fight this, and the company is gone thanks to the DOJ action. Oh, and apparently the company and its CEO have accepted plea deals to plead guilty to certain charges (though many other execs have pleaded not guilty).
Still, expect to see other civil lawsuits attempt to use the FOSTA/SESTA retroactive clause in the very near future.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cda, fosta, section 230, sesta
Companies: backpage
Reader Comments
Subscribe: RSS
View by: Time | Thread
One job...
JUMPIN JESUS ON A POGO STICK! You had ONE job! They still couldn't get it right.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Wouldn't that be the definition of applying the law ex post facto? Backpage was taken down before the law was signed.
[ link to this | view in chronology ]
Re:
It can't.
Yes.
The SESTA charges will almost certainly be thrown out, and the ex post facto provisions be stricken from the law.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
I hope so!
[ link to this | view in chronology ]
Re: Re: Re: Re:
lawyer: it should be
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Yes: "No Bill of Attainder or ex post facto Law shall be passed."
Note that Congress didn't just pass an illegal law: passing the law was, itself, a violation of the constitution. Anyone who voted for it should be removed from office.
Constitutional scholars and courts sometimes make things up, contrary to the text, but the text is perfectly clear. It's not just talking about criminal law.
[ link to this | view in chronology ]
Re:
What oversight are you referring to?
Is this a legal doctrine as you claim? Why?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
QuitDefendingDeplorables
[ link to this | view in chronology ]
They'reNot
Point to the part of the article defending Backpage.
This article involves the company only incidentally, the focus is on how a site that was put forth as one of the main justifications for the law was taken down without it, and how the retroactive, unconstitutional part of the law is already being applied.
[ link to this | view in chronology ]
Re: QuitDefendingDeplorables
And the problem is?
[ link to this | view in chronology ]
Deplorables = Undesirables = Untermenschen
These days, so many people admit to so many things in plea bargains, mostly to evade compound charges with stacked mandatory minimums specifically piled by the prosecutor in order to motivate them to confess, even if falsely.
The problem remains, we judge our legal system based on convictions, not on cases fairly adjudicated. And this is how we have prisons full of innocent warm bodies and our incarceration rate is the highest in the world.
Deplorables are the ones that most seriously need defense. Because once any of us -- even you -- are in the crosshairs of the same system, it's easy for us to become deplorable in the eyes of the media, and consequently the public.
[ link to this | view in chronology ]
Re: QuitDefendingDeplorables
[ link to this | view in chronology ]
Re: QuitDefendingDeplorables
[ link to this | view in chronology ]
Why?
[ link to this | view in chronology ]
Re: Why?
[ link to this | view in chronology ]
Re: Why?
[ link to this | view in chronology ]
Re: Re: Why?
[ link to this | view in chronology ]
Re: Re: Re: Why?
So?
Again, the obviously-unconstitutional ex post facto provision of the law gets thrown out, and the rest remains. Nothing changes.
[ link to this | view in chronology ]
Congress made INTENT clear so judges don't/can't (re)interpret.
It's not ex post facto law, it's making clear what ALWAYS applied.
Here's the right take on FOSTA from The Register today: "Nobody except vile sickos will truly mourn the passing of Backpage: it was a nexus of underage sex trafficking in America."
But Techdirt is going to wail forever! -- Not on behalf of me and The Public, but because mega-corporations can't openly advertise prostitution and are slightly inconvenienced to enforce it!
Keep it up, Masnick: you're now drawing only pirate / anarchist / drug user / corporatist / unlimited immigration / anti-Trump / child sex slave types (and all their zombie reps) here, and it's FUNNY as hell to watch you put an Ivy League facade on anti-Americanism!
[ link to this | view in chronology ]
Re: Congress made INTENT clear so judges don't/can't (re)interpret.
[ link to this | view in chronology ]
Re: Congress made INTENT clear so judges don't/can't (re)interpret.
Which one are you?
[ link to this | view in chronology ]
Re: Congress made INTENT clear so judges don't/can't (re)interpret.
On the flip side, watching you put on a facade of intelligence while spouting off empty buzzwords and insults that poorly disguise your lack of an argument makes me pity you.
[ link to this | view in chronology ]
Re: Congress made INTENT clear so judges don't/can't (re)interpret.
[ link to this | view in chronology ]
This is illegal seizure in the color of law.
I can only imagine that the prosecution is banking on the likelihood that this won't get challenged enough to be put before a judge, or that a judge will be biased enough by the alleged threat to children to ignore the malfeasance that is indicated by the order of the process.
I've said this before: this is not about law, this is about enemies, and it informs the rest of us that we are all susceptible to the same predatory prosecution engine once it gets hungry again, and should any of us look to be a serviceable meal.
[ link to this | view in chronology ]
Since we already have a tradition of unconstitutional retroactive laws, what's one more to add to the list?
[ link to this | view in chronology ]
Re:
ex post facto law definition
A law that makes illegal an act that was legal when committed, increases the penalties for an infraction after it has been committed, or changes the rules of evidence to make conviction easier
A law that removes penalties after the fact does not qualify as prohibited.
[ link to this | view in chronology ]
Re: Re:
https://www.aclu.org/why-fisa-amendments-act-unconstitutional
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Well...
"Mission Accomplished!"
[ link to this | view in chronology ]
Forfeiture
Cyrus Farivar, in connection with his Ars Technica story yesterday, “Backpage CEO pleads guilty to conspiracy, money laundering (Apr 12, 2018), has posted a copy of the Ferrer Plea Agreement.
From p.3 of that document—
Reading closely, it doesn't look like defendant agreed to forfeit the LLC itself — yet all the same, not even the ”Backpage” trademark is going to be left to that LLC.
Don't think that a nameless, assetless LLC is going to have any more fighting to do.
[ link to this | view in chronology ]
Sign the petition. Stop the government from closing down websites and censoring the internet!
https://petitions.whitehouse.gov/petition/repealstop-fosta-now
[ link to this | view in chronology ]
Big assumption
[ link to this | view in chronology ]
Now we can't seem to give away our rights fast enough for good soundbites & blissful ignorance as we see the 'bad people' get screwed... ignoring next week we can be the new 'bad people'.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
If you don't want Techdirt to make money, then why do you continue to come here and .... make Techdirt money?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]