Canadian Music Industry Confirms Once More That For Copyright Companies, Enough Is Never Enough

Amended Complaint Filed Against Backpage... Now With SESTA/FOSTA

from the because-of-course dept

Fri, Apr 13th 2018 9:31am — Mike Masnick

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.

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Filed Under: cda, fosta, section 230, sesta
Companies: backpage

43 Comments

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Berenerd (profile), 13 Apr 2018 @ 9:45am

One job...
Here in the US, our government has one job. Protect the rights of the people.

JUMPIN JESUS ON A POGO STICK! You had ONE job! They still couldn't get it right.
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Ryunosuke (profile), 13 Apr 2018 @ 9:47am

that was fast
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Ben (profile), 13 Apr 2018 @ 9:54am

How can this be valid/constitutional?

Wouldn't that be the definition of applying the law ex post facto? Backpage was taken down before the law was signed.
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Anonymous Coward, 13 Apr 2018 @ 9:57am

Ex post facto applies to civil claims, like the ones made in this amended complaint? I know Mike isn't a constitutional scholar, but this is a pretty big oversight on his part--if he's going to publish his analysis of legal doctrines. #ConLaw101
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HeAdmitsGuilt, 13 Apr 2018 @ 10:01am

QuitDefendingDeplorables
"The CEO, in a federal plea agreement unsealed in federal court in Arizona on Thursday, admitted that during the 14 years of the site’s existence, "the great majority" of Backpage's allegedly hundreds of millions of dollars in revenue came from placing illegal ads for prostitution."
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Phillip (profile), 13 Apr 2018 @ 10:08am

Why?
Seems to me that amending this complaint is a big risk for the law with no real upside. Backpage was already taken down without the law, but trying to apply this law retroactively they open themselves up to legal challenge of the highly questionable retroactive piece of the legislation.
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James Burkhardt (profile), 13 Apr 2018 @ 10:11am

Re: Why?
Because the government isn't making this claim - its a civil claim, so it is an alleged victim of backpage andthe victim's lawyer, who are going to pile on as many complaints as possible.
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Anonymous Coward, 13 Apr 2018 @ 10:29am

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!
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Anonymous Coward, 13 Apr 2018 @ 10:34am

Re: Congress made INTENT clear so judges don't/can't (re)interpret.
lol
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Uriel-238 (profile), 13 Apr 2018 @ 10:34am

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.
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I.T. Guy, 13 Apr 2018 @ 10:36am

Re: Congress made INTENT clear so judges don't/can't (re)interpret.
"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"

Which one are you?
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Anonymous Coward, 13 Apr 2018 @ 10:40am

Re:

Ex post facto applies to civil claims, like the ones made in this amended complaint?

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.

I know Mike isn't a constitutional scholar, but this is a pretty big oversight on his part

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.
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That One Guy (profile), 13 Apr 2018 @ 10:43am

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.
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Anonymous Coward, 13 Apr 2018 @ 10:48am

The 2008 FISA act bestowed retroactive immunity to a whole slew of people who clearly broke the law, so it was in essence an unconstitutional pardon by Congress.

Since we already have a tradition of unconstitutional retroactive laws, what's one more to add to the list?
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Pixelation, 13 Apr 2018 @ 10:52am

Well...
It looks like they can hang their banner.

"Mission Accomplished!"
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Thad, 13 Apr 2018 @ 11:06am

Re:

How can this be valid/constitutional?

It can't.

Wouldn't that be the definition of applying the law ex post facto?

Yes.

The SESTA charges will almost certainly be thrown out, and the ex post facto provisions be stricken from the law.
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Ben (profile), 13 Apr 2018 @ 11:09am

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.
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Thad, 13 Apr 2018 @ 11:10am

Re: Why?
I don't see any "big risk". The risk is, the SESTA claims get thrown out and they're in exactly the same position as if they'd never brought them.
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Stephen T. Stone (profile), 13 Apr 2018 @ 11:10am

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.
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Anonymous Coward, 13 Apr 2018 @ 11:23am

Re: Re:
The ACLU seems to think that retroactive immunity is unconstitutional.

https://www.aclu.org/why-fisa-amendments-act-unconstitutional
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Phillip (profile), 13 Apr 2018 @ 11:26am

Re: Re: Why?
because they can use the other aspects in the law going after future sites without bringing up the most vulnerable piece. In this case the site is already dead and they're highligting the piece that is weakest about an already terrible bill.
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Anonymous Coward, 13 Apr 2018 @ 11:27am

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—

b. Forfeiture Assistance: The defendant stipulates and agrees that, upon entry of his guilty plea, he will take all steps within his power to forfeit to the United States . . . all corporate assets and other property owned or controlled by Backpage.com, LLC, . . .

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.
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Anonymous Coward, 13 Apr 2018 @ 11:35am

Re: Re:
And the Law as a whole could be thrown out.
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Thad, 13 Apr 2018 @ 11:45am

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.
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Anonymous Coward, 13 Apr 2018 @ 12:20pm

Re: Re: Re:
Where does it say that? The list indicates "the main problems with the law", without saying they make it unconstitutional (sloppy for an article entitled "Why the FISA Amendments Act Is Unconstitutional"). The "Immunity for Lawbreakers" is said to "invite abuse" rather than actually being illegal.
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Anonymous Coward, 13 Apr 2018 @ 12:54pm

Re: Congress made INTENT clear so judges don't/can't (re)interpret.
your a special kinda of stupid aint ya?
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deb4512 (profile), 13 Apr 2018 @ 2:37pm

Re: Re: Re:
I hope so!
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deb4512 (profile), 13 Apr 2018 @ 2:38pm

Re: QuitDefendingDeplorables
And the problem is?
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deb4512 (profile), 13 Apr 2018 @ 2:41pm

Sign the petition. Stop the government from closing down websites and censoring the internet!

https://petitions.whitehouse.gov/petition/repealstop-fosta-now
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Uriel-238 (profile), 13 Apr 2018 @ 3:19pm

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.
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Anonymous Coward, 13 Apr 2018 @ 5:14pm

Big assumption
This might be helpful for Backpage if they get a sane judge. Such a thing is a sadly rare commodity however.
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That Anonymous Coward (profile), 13 Apr 2018 @ 5:59pm

I miss when they taught civics.... when people knew their rights & what violated them. They would get out an march when their leaders tried to infringe & take those right away, holding them accountable.

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'.
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Anonymous Coward, 13 Apr 2018 @ 6:33pm

Whoever pays Masnick to write this ineffective drivel is really getting ripped off.
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Anonymous Coward, 13 Apr 2018 @ 9:13pm

Re:
That person would be YOU -- through page and ad views. By trolling Masnick, you're putting more money in his pocket, mainly by increased page/ad views by all the "troll feeders" (myself included) who respond to your endless drivel.

If you don't want Techdirt to make money, then why do you continue to come here and .... make Techdirt money?
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Anonymous Coward, 14 Apr 2018 @ 7:19am

Re: Re: Re: Re:
judge: the law is not on trial here
lawyer: it should be
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Anonymous Coward, 14 Apr 2018 @ 7:22am

Re:
Ex Post Facto applies to all laws, why would you think it is only applicable to civil cases?

What oversight are you referring to?

Is this a legal doctrine as you claim? Why?
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Anonymous Coward, 14 Apr 2018 @ 7:25am

Re: QuitDefendingDeplorables
I thought everyone was (supposed to be) afforded due process and their day in court, why do you recommend removal of these rights?
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Anonymous Coward, 14 Apr 2018 @ 7:27am

Re: Re: Re:
Playing with double edged swords is not for the light hearted.
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Anonymous Coward, 14 Apr 2018 @ 8:39am

Re:
Hi antidirt. How's that John Steele defense fund coming along?
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The Wanderer (profile), 14 Apr 2018 @ 3:46pm

Re: Re:
I read his question as being "Does the ex-post-facto prohibition apply to civil claims, rather than only to criminal offenses?" - either implying that it doesn't (and it's a big oversight for Mike to miss that), or genuinely asking whether it does (and stating that it's a big oversight for Mike to not address the question in the article).
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Anonymous Coward, 14 Apr 2018 @ 5:10pm

Re: Re: Re: Re: Re:
Respected Jurist: The Law is always on trial.
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idearat (profile), 15 Apr 2018 @ 5:38pm

Re: QuitDefendingDeplorables
If retroactive enforcement of laws is in fashion, I'm waiting for the prosecution of the companies who produced the yellow pages for decades which included ads for escort services.
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Wendy Cockcroft, 16 Apr 2018 @ 5:39am

Re:
That's because ending teaching on civics has been coupled with a media-led trend to demonise the democratic system itself. If "Government bad," why bother engaging with it?
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