Mistrial Declared In Backpage Founders' Trial; After DOJ Ignores Judge's Rules Regarding What It Could Present

from the poisoning-the-well dept

As we noted recently, the trial of Backpage's founders finally started after years of legal wrangling. However, the judge has already declared a mistrial after the DOJ, in typical DOJ fashion, tried to ignore the judge's warnings against focusing too specifically on the specifics of sex trafficking alleged to have occurred on the site. Specifically, prosecutors repeatedly referred to child sex trafficking, despite the fact that there are no sex trafficking charges in the case (let alone child sex trafficking):

U.S. District Judge Susan Brnovich said that the cumulative effect of the child sex trafficking references made by prosecutors in opening statements and by witnesses for the government “is something that I can’t overlook and will not overlook.”

Before the trial, the judge concluded she would allow evidence showing that people were trafficked using the site, but would not allow prosecutors to linger on the details of the abuse suffered by victims.

“It seemed the government abused that leeway,” Brnovich said. The judge said one government witness testified about being raped more than once, which raises a “whole new emotional response from people.”

This is the thing that always seems to happen with Backpage. People insist that if they just demonstrate some of the (very real and very terrible) examples of bad stuff that happened, in part, via the platform, they don't have to meet the burden of actually proving the crime at issue happened. We've seen that repeatedly -- including in the comments to our last post about Backpage and in years of coverage about the company. People highlight bad (really awful) stuff that happened because people abused the platform, and then assume they can just skip all of the important steps regarding pinning the liability on the company (and its founders).

It's depressing, if not surprising, that it was apparently the DOJ's plan to try the same strategy in court, and it's good to see the judge put a stop to it.

Filed Under: doj, james larkin, michael lacey, mistrial
Companies: backpage

Backpage Founders Trial Finally Begins

from the where-will-it-end? dept

It's been over three years since Backpage.com was seized (the week before FOSTA was signed into law -- which is notable since every conversation about the need for FOSTA claimed it was because existing laws were useless to stop Backpage). However, in the intervening years we've seen that the loss of Backpage, rather than "protecting" women, seems to have put women at much greater risk. The recent Government Accountability Office (GAO) report highlighted how the loss of Backpage, combined with FOSTA, has made it difficult for law enforcement to track down actual sex traffickers.

As more of the backstory behind the war on Backpage came out, the more ridiculous it looked. The company actually was incredibly helpful in working with law enforcement to track down and stop sex trafficking. The problem came when law enforcement wanted to stop more than actual sex trafficking, and started going after consensual sex work. Backpage pushed back, suggesting that was too far, and that's when the government turned Backpage into being a villain.

With the trial beginning, the Daily Beast has as pretty comprehensive and pretty fair article detailing the whole thing, including raising serious questions about what exactly Backpage's founders actually did to deserve this criminal trial.

According to documents published by Reason, federal prosecutors in the Western District of Washington reviewed more than 100,000 documents and interviewed more than a dozen witnesses in 2012 in an attempt to bring a case against Backpage, but failed to find a smoking gun. In fact, according to a memo written by two assistant U.S. attorneys at the time, local FBI agents found the company “remarkably responsive to law enforcement requests” and said the site “often takes proactive steps to assist in investigations.”

“At the outset of this investigation, it was anticipated that we would find evidence of candid discussions among [Backpage] principals about the use of the site for juvenile prostitution which could be used as admissions of criminal conduct," the attorneys wrote in a 2013 update to the memo. "It was also anticipated that we would find numerous instances where Backpage learned that a site user was a juvenile prostitute and Backpage callously continued to post advertisements for her. To date, the investigation has revealed neither.”

The article also notes how damaging FOSTA and (relatedly) the loss of Backpage has been:

In the weeks after its passage, FOSTA/SESTA felled not only Backpage, but other adult advertising sites like Massage Republic and Cityvibe, and even the Craigslist personal ads section. The impact was tangible: A survey from the sex worker advocacy group Hacking/Hustling found 33.8 percent of respondents reported an increase in violence from clients after the law was signed, and 72.5 percent reported they were facing increased financial insecurity. Advocates related stories of sex workers who were thrust into the arms of pimps in order to find work, or back into abusive relationships for want of somewhere to stay.

The article does note that the founders on trial, Jim Larkin and Michael Lacey, could be highlighting the harm to sex workers that came from taking down Backpage, but instead they've focused specifically on the "free speech" arguments.

Whether Larkin and Lacey want this status is less clear. Their pre-trial statement paints them as free-speech warriors valiantly defending “offensive” and unpopular speech.” Conspicuously missing from the statement, as journalist Melissa Gira Grant pointed out on Twitter, are the words “prostitution” or “sex work;” there is only a glancing reference to “adult advertising.”

Kaytlin Bailey, a former sex worker and host of The Oldest Profession Podcast, says the longtime newspapermen are now telling the wrong story.

“I were in their shoes, the story I would be telling is the story of the survival of their users,” she said, referring to the sex workers who lost their source of income when the site was taken offline.

“They think of themselves as free speech warriors, and I think sex workers think of themselves as in a fight for survival.”

The article also quotes Prof. Alexandra Yelderman, who has been one of the top scholars on the dangers of things like FOSTA and removing sites that facilitated speech, highlighting just how questionable this lawsuit actually is:

Alexandra Yelderman, a visiting assistant professor at the University of Notre Dame Law School, argues that the trial still holds serious significance—more so than the criminal prosecutions of RentBoy, myRedBook, and other adult websites. While those sites only advertised sex work, Yelderman said, Backpage advertised other services, such as housing, cars, and temporary jobs. And everyone should be concerned that the government would jeopardize that kind of speech to get at the other stuff.

“What the Backpage takedown and prosecution is an example of is the government's willingness to throw all sorts of speech under the bus here, in order to get at speech that—according to the indictment—facilities the crime of prostitution,” she said.

“This is not a trafficking prosecution,” she added. “This is a case where allegations that [the founders] facilitated prostitution were an impetus for the government to take aim at this entire swath of speech.”

Whether you liked Backpage or not -- and it's fair to criticize some of the company's business practices -- this trial is incredibly important. And given the nature of the subject matter (not to mention some serious concerns about the judge's conflicts--she's married to the state Attorney General who campaigned against the website), there's a decent chance of a ruling here that will set a terrible precedent both for free speech online and for sex workers.

Filed Under: 1st amendment, fosta, free speech, james larkin, michael lacey, section 230, sex trafficking, sex work, user generated content
Companies: backpage

Salesforce Asks Appeals Court To Say It's Protected Under 230; After Its Own CEO Said We Should Get Rid Of 230

from the incredible dept

We were quite perplexed in late 2019 when Salesforce.com founder and CEO Marc Benioff (never one to shy away from expressing his opinions on anything at all) announced that Section 230 should be abolished. It seemed like an extremely poorly thought-out statement from a CEO who was wholly unfamiliar with the issues, but who has sort of relished tweaking the noses of the big consumer internet companies over the past few years (after spending the first decade or so of Software.com's existence tweaking the noses of enterprise software companies). As we wrote at the time, Benioff didn't seem to understand 230 at all, and seemed just angry at Facebook.

Of course, this is coming back to bite him hard. Just a few months later, lawyer Annie McAdams, who seems to have made it her life's mission to file blatantly silly attacks on Section 230 in court, sued Salesforce.com (and not for the first time!), claiming that because Backpage.com had used Salesforce as its CRM system, Salesforce was somehow magically liable for any sex trafficking that happened on the platform. In the complaint, McAdams cited Benioff's comments:

Salesforce will claim that no matter what role Salesforce played in the development and amplification of Backpage’s business model, they should be completely shielded and not have to answer any questions or be held accountable in any manner by asking the Court to dismiss the case at the initial stage.

The distortion and use of the Communications Decency Act as a sword by technology companies such as Salesforce is an outright distortion of the intent of Congress in regard to the development of the internet.

The Communications Decency Act (“CDA”) was never intended to protect technology companies from being held accountable for unlawful conduct or sex trafficking.

Salesforce’s own CEO, Marc Benioff, on October 16, 2019, has demanded Section 230 of the CDA be abolished with the need for “standards and practices be decided by law”

And, in late March, she actually prevailed. In a somewhat terrible decision, federal judge Andrew Hanen refused to grant Salesforce's motion to dismiss, and said that Salesforce's use of 230 here did not let it off the hook with a bizarre ruling that goes against pretty much all 230 precedent on the books:

... the Court cannot hold as a matter of law that CDA 230's protections apply to Salesforce. In particular, the Court is not persuaded that Salesforce is a provider of "an interactive computer service" entitled to protection.

WHAT?!? I mean, every other court has recognized that any website is considered an interactive computer service. I'm honestly having trouble recalling another cases where this definition is even an issue at all.

Moreover, it is unclear to the Court whether CDA 230 is even relevant, because Plaintiff has alleged that Salesforce directly and "knowingly benefitted" from providing services to facilitate sex trafficking. That allegation, if true, would elevate Salesforce's role beyond that of a mere publisher, which is the touchstone of CDA 230(c)(1).

This is also... just wrong. Having knowledge does not, in any way, elevate a website's role "beyond that of a mere publisher." There are multiple cases that say so, and nothing in the law says that knowledge changes anything. The whole thing is bizarre.

For what it's worth, the court did reject a bunch of McAdams' other claims regarding negligence and civil conspiracy, recognizing that it's a stretch to argue that providing the CRM tool to a service that provided tools to other third parties, some of whom used it for trafficking, somehow makes them liable. But, without the 230 immunity, the case still has to go on concerning Texas' anti-sex trafficking law.

Now, Salesforce is in the position of trying to ask the 5th Circuit appeals court to fix this awful ruling. Its first move is just to get the district court to let it pause the case at this point to get the 5th Circuit to take a look. And it's leaning hard on Section 230, the same law its CEO says should be abolished.

Both sides would benefit from resolving sooner rather than later the threshold, potentially dispositive issue whether section 230 of the Communications Decency Act applies to Salesforce and bars this lawsuit in its entirety.

In laying out the argument for why the 5th Circuit should get to review the case at this stage, Salesforce lawyers point out that if this is not allowed, it completely destroys the whole reason that 230 immunity exists in the first place -- to make one immune to these kinds of mistargeted lawsuits:

The section 230 issue presents a controlling question of law—particularly given that the Fifth Circuit considers section 230(c)(1) an “immunity provision[]” and regards its applicability as a threshold legal issue to resolve at the outset of litigation. MySpace, 528 F.3d at 418; accord Diez v. Google, Inc., 831 F. App’x 723, 724 (5th Cir. 2020) (per curiam). That necessity is driven “not because of the expense of litigation but because of the irretrievable loss of immunity from suit.” McSurely v. McClellan, 697 F.2d 309, 317 n.13 (D.C. Cir. 1982) (per curiam). So courts “aim to resolve the question of [section] 230 immunity at the earliest possible stage of the case because that immunity protects [providers] not only from ultimate liability,” but also from litigation itself. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citation omitted).

As a result, an interlocutory appeal is warranted to ensure meaningful appellate review of whether section 230 bars plaintiffs’ suit against Salesforce. If the litigation continues, even though Salesforce may eventually be protected “from ultimate liability,” it will have lost—irretrievably—section 230’s protection against being sued in the first place and “having to fight costly and protracted legal battles.” Nemet Chevrolet, 591 F.3d at 255 (citation omitted). Thus, as “resolution on appeal . . . would impact the course of litigation and could terminate the suit in this Court,” La. State Conf. of NAACP v. Louisiana, --- F. Supp. 3d. ---, No. 19-479-JWD-SDJ, 2020 WL 6130747, at *9 (M.D. La. Oct. 19, 2020), the section 230 issue is a controlling question of law that warrants immediate review.

As Salesforce points out, Judge Hanen's claim that Salesforce might not even be an "interactive computer service" goes against lots of other courts, even those who have reviewed whether or not Salesforce itself qualifies:

The Court’s initial hesitation as to whether Salesforce is an interactive computer service provider covered by section 230 is contrary to at least two other courts that have decided that issue as to Salesforce specifically. And decisions from courts across the country magnify the substantial ground for disagreement on when an interactive computer service provider is “treated” as a “publisher” under section 230.

To start, two other courts have very recently held that Salesforce meets section 230’s definition of an interactive computer service provider in cases involving virtually identical allegations. A California state court determined that “[t]he term ‘interactive computer service’ . . . applies to software providers such as [Salesforce].” Does #1 through #90 v. Salesforce.com, Inc., No. CGC-19-574770, slip op. at 4 (S.F. Super. Oct. 3, 2019).

That court explained that Salesforce’s “customer relationship management . . . software” supplies “enabling tools” that users can access through the internet. Does #1 through #90, at 4 (quoting 47 U.S.C. § 230(f)(4)). Those software tools, the court concluded, put Salesforce well within the “broad statutory definition[]” of an “access software provider,” because Salesforce provides “software . . . or enabling tools” that “transmit,” “receive,” “cache,” “search,” and “organize” data. Id. at 4–5 (quoting 47 U.S.C. § 230(f)(4)). And because “multiple users” can “access” the “computer server” with those tools, 47 U.S.C. § 230(f)(2), Salesforce is a “provider . . . of an interactive computer service” under section 230(c)(1), see Does #1 through #90, at 4.

The court also ruled that the plaintiffs’ claims impermissibly “treat[ed] [Salesforce] as the publisher of [third-party] information.” Does #1 through #90, at 5. The court explained that the plaintiffs’ claims relied on third-party content to establish Salesforce’s liability. Simply put, Salesforce could “only be liable if . . . linked to the[ ] advertisements” that were used to traffic the plaintiffs. Id. Because the plaintiffs alleged that Salesforce was linked to the ads for the reason that “its ‘platform and CRM’ [software] enabled Backpage to publish and disseminate” them, the court determined that the plaintiffs’ claims necessarily implicated Salesforce “as a publisher.” Id. The court therefore concluded that the claims were barred by section 230(c)(1)....

A Texas state court has held the same—namely, that Salesforce falls within section 230’s definition of an interactive computer service and that materially identical claims were barred under section 230. In Re: Jane Doe Cases, Tex. MDL Cause, No. 2020-28545, slip op. at 1–2 (Aug. 28, 2020). Thus, whether Salesforce is entitled to section 230 immunity may depend on whether the parties are in state or federal court in Texas—creating a risk of forum shopping between Texas courts that heightens the need for interlocutory review.

Then they note that there are lots of other cases regarding non-Salesforce defendants showing how broad the definition of an ICS truly is.

Relying on the plain statutory text, courts have held that many different types of providers are covered under the statute’s capacious definitions of an “interactive computer service” and “access software provider.” 47 U.S.C. § 230(f)(2) & (4); see, e.g., Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1175–76 (9th Cir. 2009) (provider of anti-malware software); Davis v. Motiva Enterprises, L.L.C., No. 09-14-00434-CV, 2015 WL 1535694, at *1, *3–4 (Tex. App.—Beaumont Apr. 2, 2015) (employer whose employee used the company’s “technology and facilities”); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 758–59 (Tex. App.—Beaumont 2014) (website host).

Other courts might therefore conclude (and indeed have concluded) that Salesforce—a provider of software that “enables . . . access by multiple users to a computer server,” 47 U.S.C. § 230(f)(2), where those users can use various tools to “transmit,” “receive,” “cache,” “search,” and “organize” customer data, id. § 230(f)(4)— falls within these definitional provisions, too.

As such, they note that plenty of courts -- including the 5th Circuit in which this district court resides -- have held that 230 immunizes websites from all kinds of civil liability if that liability touches on 3rd party content.

Likewise, the Fifth Circuit and a host of other courts have held that the “plain text” of section 230 immunizes interactive computer service providers from “any cause of action” that treats them as a “publisher” by seeking to hold them “liable for information originating with a third-party user of the service.” Diez, 831 F. App’x at 724; accord MySpace, 528 F.3d at 418 (negligence claims); see O’Kroley v. Fastcase, Inc., 831 F.3d 352, 354 (6th Cir. 2016) (invasion of privacy and other tort claims); Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 19–20 (1st Cir. 2016) (human trafficking claims); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101–02 (9th Cir. 2009) (collecting citations).

Hopefully they succeed, and the 5th Circuit overturns the initial ruling.

However, the bigger question may be whether or not Benioff has learned his lesson and might actually understand why Section 230 is so important for the wider internet, including his company?

Filed Under: fosta, interactive computer service, liability, section 230, sex trafficking
Companies: backpage, salesforce

Judge Presiding Over Arizona Prosecution Of Backpage Denies Discovery Requests Targeting Her Husband, Who Happens To Be State Attorney General

from the i'm-sorry-but-wtaf dept

Here's one more horrifying postscript to the still-ongoing criminal prosecution(s) of Backpage's executives. Courts and attorneys general (including newly installed VP Kamala Harris) tried to run the company in on prostitution charges but often found their efforts rebuffed by courts who didn't see how hosting third-party ads was the same thing as aiding and abetting sex trafficking.

Prosecutions abounded. So did a cottage industry of pearl clutchers and hand wringers -- many of which were holding powerful offices in Washington DC. These people were convinced the only way to fight sex trafficking was to punch holes in Section 230. Despite being warned against doing so by none other than the DOJ, they went ahead and passed FOSTA. This anti-sex trafficking law has been used exactly once in a criminal case since its inception.

But here's the new thing, via Stephen Lemons writing for Front Page Confidential. The undercurrent of corruption behind the Backpage prosecutions continues to flow. It was never meant to be a fair fight. It was meant to make Backpage an example after other online services managed to shrug off misguided investigations and prosecutions attempting to turn hosts into criminal confederates.

One of the goals of government work -- especially as it pertains to checks and balances -- is to avoid any appearances of impropriety. But in Arizona, appearances appear to be unimportant. Impropriety is in the eye of the beholder. And if the beholder wields less power, too fucking bad. Here's how things are being handled in the government's attempt to prosecute Michael Lacey and Jim Larkin of Backpage.

Appearance? No, actual impropriety!

A game of legal ping pong has ensued in the Lacey/Larkin case, with U.S. District Court Judge Susan Brnovich shooting down a defense subpoena seeking the same docs from her husband, Arizona Attorney General Mark Brnovich, as a public records request from the defendants, now pending at the AG’s office.

On February 11, the judge ruled against the defense’s motion for a subpoena to her spouse’s office, requesting “all correspondence or records” discussing the defendants, their case and the defunct listings website at the center of it all, Backpage.com.

Welp.

The only judge who has yet to recuse herself from this case is married to the state Attorney General who has made comments concerning Backpage that might be relevant to the case. And yet, Judge Brnovich sees nothing wrong with presiding over it and denying discovery materials to the people attempting to defend themselves -- when that discovery involves her husband.

Since Judge Brnovich is unwilling to address the obvious implications of her decision to stay involved with this case, the defendants have asked the Ninth Circuit Appeals Court to step in. Hopefully a set of judges far more impartial than Judge Susan Brnovich appears to be will force the judge to step down and let someone else not married to the state Attorney General, who has publicly discussed the case, take the reins.

Until then, Backpage is at the mercy of a system that seems to willingly be ignoring the "checks and balances" ideals that make this country great, at least when respected.

Update: In the initial version of this post, we falsely claimed that state Attorney General Brnovich was prosecuting the case. It is actually a federal case, prosecuted by the DOJ. The subpoena just relates to statements made by the state Attorney General regarding Backpage. We regret the error.

Filed Under: conflict of interest, evidence, foia, mark brnovich, section 230, susan brnovich
Companies: backpage

DOJ Finally Uses FOSTA, Over Two Years Later... To Shut Down A Site Used By Sex Workers

from the worth-it? dept

For years leading up to the passage of FOSTA, we were told that Congress had to pass the law as quickly as possible because so many women were "at risk" due to trafficking. And when asked for evidence of this, people would point to Backpage, even though the site had shut down its "adult" section under pressure from Congress a year earlier. Of course, the actual stats that were provided turned out to be fake and Backpage was seized before the law was even passed. The charges against the founders did not include sex trafficking charges. Also, as the details have come out about Backpage, it's become evident that rather than facilitating sex trafficking, the company was actively working with law enforcement to find and arrest sex traffickers. However, where they started to push back on law enforcement was when law enforcement wanted to go after non-trafficked sex workers.

However, with all of the moral panic around the need to pass FOSTA, we highlighted earlier this year that two years had gone by and the DOJ had not used the law a single time to go after any "sex trafficking" site. Instead, as we predicted, the law was being used in nuisance lawsuits, such as mailing list provider MailChimp and CRM provider Salesforce because Backpage had used those services.

Finally, last week, however, the DOJ made use of FOSTA in shutting down a website and arresting its operator. A site called CityXGuide.com (and some other sites that it ran -- including one with a name similar to Backpage) were seized, and the guy who ran it, Wilhan Martono, was arrested in California. From the details provided, it does look like Martono saw an opportunity to jump into the market vacated by Backpage, and the charges claim that he brought in $21 million doing so.

The original indictment was done in early June, but it was only just unsealed with Martono's arrest and the seizure of the various websites. It does seem clear that Martono sought to be the source for advertising sex work, but the DOJ conveniently mashes together sex work and sex trafficking, because that's the kind of thing law enforcement likes to do.

Indeed, the immediate reaction to this appears to be that plenty of non-trafficked sex workers, who previously had relied on Backpage to remain safe and now relied on Martono's sites, are again put in danger. The Hacking/Hustling collective -- a group of sex workers who came together to advocate around issues such as FOSTA -- put out a press release calling out what a stupid, counterproductive move this is:

“When we are re-envisioning public safety, this is a perfect example of why we can’t exempt human trafficking. Instead of resources going to real investigations or victim support, you have six agencies spending time and resources reading ads and looking for the word ‘blow job’” said Lorelei Lee, a collective member of Hacking//Hustling.

I was going to link to another website that has a blog advocating for sex workers' rights that explained in great detail how this puts sex workers at danger, but honestly, under a broad interpretation of FOSTA, linking to that website might violate the law. That's because after reading the blog post, I saw that there was a link to a "find escorts" site associated with the blog, and while I think I should be able to link to such a blog post, with its cogent explanation for why this DOJ action puts women at risk... merely linking to it would put me at risk under a broad reading of FOSTA (a stupid, unconstitutional reading, but, alas, these are some of the chilling effects created by the law).

Either way, it's difficult to see how this does anything to stop actual sex trafficking. Indeed, again, it's likely to put victims at even greater risk -- while also putting sex workers at greater risk. Studies have shown that when these sites go down, more women are put at risk. Even worse, as noted, Backpage actually helped law enforcement track down and arrest traffickers. But by making everything else such sites do illegal, it appears that (obviously) Martono avoided helping law enforcement at all (the indictment suggests he ignored various subpoenas).

Again, this is exactly as tons of people predicted. When these ads were appearing on places like Craigslist and Backpage, those companies worked closely with law enforcement to go after actual traffickers, and get them arrested. But now, with things like FOSTA, rather than do that, law enforcement can just... take down the best source to find and track down traffickers, pushing them to sites that are less and less likely to help law enforcement? How does that make sense. Indeed, we've covered a number of law enforcement officials saying that the shutdown of Backpage has made it more difficult to find actual traffickers.

And, if you want any more evidence of that: note that nowhere with this announcement is there anything about arresting any actual traffickers. I have a request in to the DOJ asking if they or any law enforcement have arrested any actual traffickers who used these sites -- but at the time of publishing they have not responded. The indictment claims -- somewhat salaciously -- that the sites seized were used to identify "numerous victims of child sex trafficking," including a "13-year-old Jane Doe." Obviously, it's horrific to find out about that Jane Doe or any victim of sex trafficking, but it does seem odd that there is no mention of any arrests of the traffickers.

Because... wouldn't arresting actual traffickers be the goal here?

Either way, this story is getting buzz on Twitter from two communities: sex workers who are pissed off and angry that they're now losing business and the ability to operate safely... and... believers in the ridiculous Q anon nonsense conspiracy theory, who believe that everything going on in the world is a plot to cover up child sex trafficking. To them, this is evidence that the big promised crackdown on sex trafficking rings has begun. Of course, the lack of any actual arrests for actual sex trafficking kinda suggests that's not the goal here.

Still, this whole thing allowed FOSTA co-author Senator Rob Portman to take a victory lap. Someone should ask him why he's celebrating putting women at risk -- or at least ask him where the arrests are for actual sex trafficking.

Filed Under: doj, fosta, section 230, sex trafficking, sex workers, wilhan martono
Companies: backpage, cityxguide

Civil FOSTA Suits Start Showing Up In Court; Prove That FOSTA Supporters Were 100% Wrong About Who Would Be Targeted

from the who-would-have-guessed dept

During the run up to the passage of FOSTA, we were told two key things: (1) the law was absolutely necessary to stop sex trafficking websites like Backpage, and (2) that there was no way that the law would be abused to go after perfectly innocent websites. It's pretty easy to show that both of these claims turned out to be utter bullshit. The first one was especially easy, seeing as the Feds seized the site and arrested its founders a week before FOSTA became law. The second has taken somewhat longer to show, in part because for a long while no one actually seemed to be making use of FOSTA. For a law that we were told was absolutely necessary and that any delay in passing it would mean lives put at risk, it has been notable just how few actual lawsuits have been filed under FOSTA in the 18 months or so since it became law. State attorneys general, who pushed strongly for it, claiming they needed this hole in Section 230 to go after bad actor websites have still never used the law. Not once.

However, a few civil suits have just started to show up, as highlighted in a guest post at Eric Goldman's blog by FOSTA expert Alex Yelderman. She first points to two nearly identical lawsuits filed in state courts (one in Washington, one in California) against Craigslist and a bunch of hotels. Craigslist has sought to remove both to federal court as of early December. Both cases push, as Yelderman notes, "radical theories of liability" aimed at Craigslist. They also target activities that happened prior to FOSTA becoming law (as you may recall, Craigslist shut down its "erotic services" section all the way back in 2010, and then shut down all dating after FOSTA became law, noting that the liability risk was just too much).

That hasn't stopped the company from getting sued under the law, though, with it claiming that just the mere fact that Craigslist had such a section a decade ago proves that it was engaged in sex trafficking under FOSTA. As Yelderman points out, the fact that FOSTA is apparently retroactive and can reach back to such things, will almost certainly be found unconstitutional. As you may recall, even the DOJ told Congress this part was unconstitutional.

Even beyond that aspect, though, the claims in the lawsuit are crazy. They assume that FOSTA removed the requirement for knowledge on the part of intermediaries like Craigslist, even though supporters of the law insisted that wasn't the case. Indeed, a key part of the DOJ's defense of FOSTA in the Woodhull case that challenged the law (and which the district court rejected), was that FOSTA made no such change. As Yelderman explains:

The plaintiffs do not allege that craigslist knew anything about them specifically being trafficked — in fact, they count themselves among “thousands of victims” — but rather claim that the website was aware “that its erotic services section was well known to commercial sex customers throughout the United States as a place to easily locate victims for [SIC] as commodities, unpunished, anonymous, sexual abuse of children” and that once craigslist had been put “on notice of the human sex trafficking” (“from numerous sources, including but not limited to; lawsuits, government action, public outcry, news media, victims, activities and employee observation”), its ongoing operation “amounted to a venture with sex traffickers to efficiently market victims such as [the] Plaintiff.” (emphasis added)

This is a radical theory of liability, and raises the question: did FOSTA’s definition of “participation in a venture,” codified in 18 U.S.C. § 1591(e)(4), eliminate the requirement that federal trafficking defendants (including, now, intermediaries) have actual knowledge of trafficking? The government in Woodhull assured that court that “FOSTA changed nothing about Section 1591’s scienter standard,” and that a plaintiff “cannot credibly fear criminal or civil liability [if] it has no specific knowledge about the content of any of the material it obtains” or “be prosecuted under FOSTA [if] it has no knowledge about any individual webpage nor criminal intent.” (Defendants’ reply and supplement at 7, 8, emphasis added)). But even if craigslist ends up prevailing, the fact that the cases were filed at all sounds the alarm on FOSTA’s reach, and shows the Woodhull plaintiffs’ fear to be entirely reasonable

The other case that Yelderman highlights deserves even more scrutiny. It was filed against Mailchimp back in November, and I had meant to write it up at the time, but did not get the chance. It was filed by the same lawyer who has been filing a bunch of similar cases, including the nonsense cases against Salesforce, because Backpage used Salesforce. The lawyer behind those cases, Annie McAdams, even got herself quite a profile in the NY Times, where she meets the NY Times reporter at "her favorite Tex-Mex joint in Houston" and proceeds to brag that "she had acquired the restaurant’s secret margarita recipe in legal discovery when she sued the place for serving a man too much alcohol."

Bragging about abusing the law and the courts for personal gain in a NY Times profile says something about you. For what it's worth, McAdams' Twitter account currently has exactly two tweets (it's possible she's deleted others), with the first one being her getting angry at me for referring to her lawsuits as "nuisance suits." Quite a person there.

Either way, the claims against Mailchimp are absolutely the kinds of things we all warned would happen when FOSTA was being debated, and which FOSTA supporters insisted would never happen. The crux of the lawsuit is that when a Backpage clone, called YesBackpage, tried to startup after Backpage was seized, the site used Mailchimp for emails, and thus that makes it liable under FOSTA.

YesBackpage used Mail Chimp technology to enable efficient and targeted communication between itself and sex traffickers.

MailChimp was thereby an active party in the process of soliciting and fulfilling acts of sex trafficking.

MailChimp’s integrated communications software was used together to track postings of illegal advertisements, encourage greater use of these advertisements by traffickers, and effectively promote sex trafficking on an unprecedented scale.

MailChimp was the key technology used to unify the various digital components of the sex trafficking transaction, including the use of email to increase more advertising, more consumption of those ads, and thereby facilitate more sex trafficking.

Even if this lawsuit gets tossed out (as it should), the theory behind it is scary and worrisome. As Yelderman writes:

This case alleges that MailChimp — a marketing platform — “made available its marketing resources and expertise” to a Backpage copycat website and that “MailChimp’s marketing relationship with YesBackpage makes it responsible for its natural consequences — the sex trafficking of Jane Doe.” (Doe v. MailChimp complaint at 12). This view of “natural consequences” is breathtaking. Once MailChimp became “[a]rmed with knowledge of activity occurring through YesBackpage,” any services performed for the website would presumably constitute “participation in a [sex trafficking] venture.” There is no limiting factor in sight.

When sex trafficking is somehow construed as the “natural consequence” of a virtually any action, virtually no person or entity is safe from the threat of liability.

These are the kinds of things many of us worried about (and warned Congress about) in the run-up to SESTA/FOSTA, and we were told we were crazy. Yet, looking at the actual lawsuits filed under FOSTA seems to prove we were 100% correct.

What's even more troubling, through, is that they also show just how wrong the district court judge in the Woodhull case was to dismiss that case. The judge dismissed that case insisting that FOSTA included clear language that barred such widespread interpretations:

... plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic of prostitution or sex work.

That's certainly not how the lawyers who filed the lawsuits above see it. At the very least, one hopes that the DC Appeals court recognizes this in deciding the Woodhull appeal. If not, then hopefully one of these or related cases makes its way up to an appeals court and gets FOSTA itself tossed for any of the variety of problems the law has created for speech online.

Filed Under: cda 230, fosta, intermediary liability, section 230, sex trafficking
Companies: backpage, craigslist, facebook, mailchimp, salesforce

New Government Documents Reveal That Backpage Was Actively Helping Law Enforcement Track Down Traffickers

from the oh,-look-at-that dept

For many years, we've pointed out that for all the salacious stories and claims about how Backpage.com was somehow supporting and facilitating sex trafficking, the site was actually an amazing tool for finding, arresting, and convicting sex traffickers. Earlier this year, we wrote about a very detailed piece in Wired that highlighted just how far Backpage went in helping law enforcement stop sex trafficking:

On October 18, Backpage announced on its blog that it had retained Hemanshu Nigam, a former federal prosecutor who specialized in sex crimes and child abuse, to develop a “holistic” safety program. Nigam sat on the board of the National Center for Missing and Exploited Children and had done similar work for Myspace. In the months that followed, Nigam and his new clients met repeatedly with representatives from anti-trafficking organizations. They discussed changes to Backpage’s site architecture, moderation practices, and content policies. The organizations suggested, for instance, that users should be prevented from employing search terms such as “incest” or “Lolita,” since these might “indicate illegal activity.” Backpage moderators, meanwhile, should be on the lookout for “ads written from masculine perspective,” particularly if they employed the euphemism “new in town,” which “is often used by pimps who shuttle children to locations where they do not know anyone and cannot get help.”

By late January 2011, Backpage had implemented many of the recommendations: It had banned photographs with nudity, drawn up a list of “inappropriate terms,” beefed up its vetting process, and begun referring “ads containing possible minors” directly to Allen’s staff. Ferrer also worked closely with the authorities. According to a Justice Department memo from 2012, “unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.” A later memo noted that “even Ernie Allen believed that Backpage was genuinely trying to rid its site of juvenile sex trafficking.”

Where things got more heated was when law enforcement wanted to go after Backpage for consensual sex, rather than trafficking. But, because it was convenient, politicians, law enforcement, and the media kept up the charade that Backpage and its founders were deliberately supporting sex trafficking. However, as a new article at Reason by Elizabeth Nolan Brown makes clear, the government knew all along that Backpage was one of its best partners in stopping sex trafficking. Some new documents have come out as part of the ongoing lawsuit against Backpage and its founders by the feds that kind of undermine the entire narrative about Backpage.

The memo—subject: "Backpage.com Investigation"—reveals that six years before Backpage leaders were indicted on federal criminal charges, prosecutors had already begun building a "child sex trafficking" case against the company. But this case was hampered by the fact that Backpage kept trying to help stop sex trafficking.

"Information provided to us by (FBI Agent Steve) Vienneau and other members of the Innocence Lost Task Force confirm that, unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations," wrote Catherine Crisham and Aravind Swaminathan, both assistant U.S. attorneys for the Western District of Washington, in the April 3 memo to Jenny Durkan, now mayor of Seattle and then head federal prosecutor for the district. Vienneau told prosecutors that "on many occasions," Backpage staff proactively sent him "advertisements that appear to contain pictures of juveniles" and that the company was "very cooperative at removing these advertisements at law enforcement's request."

"Even without a subpoena, in exigent circumstances such as a child rescue situation, Backpage will provide the maximum information and assistance permitted under the law," wrote Crisham and Swaminathan.

You might notice that one of those quotes above was included in that Wired piece I quoted earlier. However, as Nolan Brown notes, these and another memo were "accidentally" revealed to Backpage's defense lawyers, but then the judge sealed them and ruled them off-limits for the defense, despite their exculpatory nature.

Backpage lawyers in the criminal case have been barred from using the memos as part of their clients' defense. The previous judge handling the case (who recused himself) agreed with the prosecution that the memos, which had been filed under seal in the Western District of Washington, must remain sealed and that the defense must destroy its copies.

At an August 19 hearing, Judge Susan M. Brnovich ruled that they will stay that way. But Brnovich denied the state's request to sanction defendants over quotes from the memos appearing in the June Wired story.

At the hearing, lawyers for defendants had pointed out that there were months when the memos were not under seal and that many people had viewed or had access to them both before and during that time. In issuing her order, Brnovich agreed that the memos had "clearly been distributed to many people," including "other people that the government was working with," and said any suggestion Backpage defendants or lawyers had supplied the memos to Wired was pure "speculation.

As Reason points out, multiple attempts to pull together trafficking charges against Backpage fell down as investigators realized that Backpage was actually on their side on these things, and there was no evidence of Backpage actually supporting trafficking.

Over the next year, their office would undertake a large investigation into Backpage's internal processes and potential criminality.

This included a "preliminary review of more than 100,000 documents," subpoena responses "from more than a dozen entities and individuals," interviews with around a dozen witnesses, and "extended grand jury testimony from an additional six witnesses," mainly Backpage employees. Still, it failed to produce "the kind of smoking gun admissions which we had hoped would propel this investigation to indictment," wrote Swaminathan and another assistant U.S. attorney, John T. McNeil, in a January 2013 memo.

[....]

"At the outset of this investigation, it was anticipated that we would find evidence of candid discussions among [Backpage] principals about the use of the site for juvenile prostitution which could be used as admissions of criminal conduct," wrote McNeil and Swaminathan in their 2013 update. "It was also anticipated that we would find numerous instances where Backpage learned that at site user was a juvenile prostitute and Backpage callously continued to post advertisements for her. To date, the investigation has revealed neither."

They recommended that bringing criminal charges would be unwise.

This seems notable, and seems to explain why it took so long for the feds to move against Backpage. Remember, that despite all the rhetoric around Section 230, federal criminal laws are exempt from 230, and if the feds actually had evidence of Backpage engaging in sex trafficking, the DOJ could have taken the site down at any time.

The Reason article goes into great detail, often contrasting public statements about Backpage with what was happening behind the scenes, while also showing how those who had decided, unequivocally, that Backpage was evil, would twist any step it made to stop sex trafficking as evidence that it was facilitating sex trafficking.

Since the time when the memos were first drafted, officials have figured out ways to frame any positive parts of Backpage operations into legal liabilities and points of public horror. The meetings with NCMEC and the efforts to help police? Proof that Backpage knew of the problem. Preventing explicit offers of sex for money? The Senate said that was just Backpage wanting to "conceal the true nature" of ads. Filtering out open-to-interpretation words? Banning underage ads? Same, said the senators. Their report portrayed the fact that Backpage used moderation at all as some sort of seedy ploy.

Requiring card payments for adult ads—as NAAG suggested, since cards can be traced—was spun as a deliberate effort to profit off exploitation. Accepting bitcoin after Dart threatened card companies? Evidence of subterfuge. Accepting checks after the Dart harassment? That let prosecutors tie specific ad buys to real identities and transactions, thus helping them fulfill a previously-lacking element necessary for money laundering charges.

In effect, everything the company did to enhance protection and legality was twisted into evidence of criminality and moral failure. And, for years, folks have promoted these topsy-turvy explanations.

Yet, as the memos show over and over again, the feds who were investigating Backpage simply could not make a case against the company, since it was so eager to help to stop sex trafficking.

In 2012, Crisham and Swaminathan seemed impressed by how cooperative Backpage was with police and other members of law enforcement. Backpage data offer "a goldmine of information for investigators," they noted. In general, staff would respond to subpoenas within the same day; "with respect to any child exploitation investigation, Backpage often provides records within the hour." Staff regularly provided "live testimony at trial to authenticate the evidence against defendants who have utilized Backpage," and the company held seminars for law enforcement on how to best work with Backpage staff and records.

"Witnesses have consistently testified that Backpage was making substantial efforts to prevent criminal conduct on its site, that it was coordinating efforts with law enforcement agencies and NCMEC [the National Center for Missing and Exploited Children], and that it was conducting its businesses in accordance with legal advice," wrote Swaminathan and McNeil in 2013. Furthermore, they noted, their investigation failed "to uncover compelling evidence of criminal intent or a pattern or reckless conduct regarding minors." In fact, it "revealed a strong economic incentive for Backpage to rid its site of juvenile prostitution."

Ultimately, it was their assessment that "Backpage genuinely wanted to get child prostitution off of its site."

It seems fairly ridiculous that Backpage is now prevented from using this evidence in court, but at the very least, the court of public opinion deserves to see what was really happening.

Filed Under: cooperation, intermediary liability, section 230, sex trafficking
Companies: backpage

Inside Story On The War On Backpage Raises All Sorts Of Legal Questions

from the well-isn't-that-interesting dept

Recently Wired had a pretty amazing cover article on the inside story on the DOJ's legal war against Backpage that is superbly well-written and quite interesting. Wired found the perfect reporter for this in Christine Biederman, who was once a staff reporter at one of the many alt weeklies owned by Michael Lacey and James Larkin -- the two owners of Backpage who are still facing federal charges over the site -- as well as a former assistant US attorney at the DOJ. Biederman understands all of the issues here deeply and does a great job laying them all out. I highly recommend you set aside some time to read the whole article, which gives a great backgrounder on Lacey and Larkin, how they built up an alt-weekly empire, only to see it fizzle, while then building out Backpage as a massive success -- and who now face criminal charges that raise all sorts of legal questions.

For this post, however, I did want to focus on some of the legal issues. We've discussed Backpage a lot over the years, including questioning whether what it did was truly illegal. No one denies that the site was absolutely used for some fairly horrible things -- including sex trafficking. The questions, though, surround whether or not that's Backpage's responsibility -- and whether or not in shutting down the site, law enforcement actually shut down a useful tool in tracking down actual traffickers, making the trafficking problem worse. Biederman's piece also shows some of the moral panic around FOSTA, and raises questions about just how big the sex trafficking issue truly is and whether or not the government is abusing the civil asset forfeiture process to make it impossible for Lacey and Larkin to mount a defense. These are all topics that we've long covered on Techdirt.

Let's start, though, with the legal attacks on the site, which began not with Backpage, but with a moral panic about the advertising on Craigslist -- which was eventually pressured into shutting down its adult ads section (after FOSTA passed, Craigslist went even further and shut down its entire Personals section). Cook County, Illinois Sheriff Thomas Dart sued Craigslist in 2009, in a case that was tossed out just months later thanks to Section 230 of the CDA (Dart later was one of the most aggressive in going after Backpage). He's quoted in the Wired article making no sense at all:

In early 2009, Thomas Dart, the sheriff of Cook County, Illinois, sued Craigslist for facilitating prostitution. “Missing children, runaways, abused women, and women trafficked in from foreign countries are routinely forced to have sex with strangers because they’re being pimped on Craigslist,” he said. “I could make arrests off Craigslist 24 hours a day, but to what end? I’m trying to go up the ladder.”

But suing Craigslist (or Backpage) is not "going up the ladder" at all. It's burying the ladder and everything around it. Both Craigslist and Backpage were active in helping law enforcement track down actual sex traffickers who were using their site. Shutting down the platforms has only served to make it more difficult for law enforcement to track down traffickers, because they're now much harder to find. At the same time, the evidence shows that shutting down these sites has also resulted in an increase in murdered women.

The article also details how far Backpage went to actually be responsive to law enforcement's concerns and to help stop sex trafficking on the site:

On October 18, Backpage announced on its blog that it had retained Hemanshu Nigam, a former federal prosecutor who specialized in sex crimes and child abuse, to develop a “holistic” safety program. Nigam sat on the board of the National Center for Missing and Exploited Children and had done similar work for Myspace. In the months that followed, Nigam and his new clients met repeatedly with representatives from anti-trafficking organizations. They discussed changes to Backpage’s site architecture, moderation practices, and content policies. The organizations suggested, for instance, that users should be prevented from employing search terms such as “incest” or “Lolita,” since these might “indicate illegal activity.” Backpage moderators, meanwhile, should be on the lookout for “ads written from masculine perspective,” particularly if they employed the euphemism “new in town,” which “is often used by pimps who shuttle children to locations where they do not know anyone and cannot get help.”

By late January 2011, Backpage had implemented many of the recommendations: It had banned photographs with nudity, drawn up a list of “inappropriate terms,” beefed up its vetting process, and begun referring “ads containing possible minors” directly to Allen’s staff. Ferrer also worked closely with the authorities. According to a Justice Department memo from 2012, “unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.” A later memo noted that “even Ernie Allen believed that Backpage was genuinely trying to rid its site of juvenile sex trafficking.”

However, as the article details, the more Backpage did, the more law enforcement demanded of them -- often pulling the exact same trick that many have pulled, conflating consensual sex work with sex trafficking.

And that actually turns out to be a big issue. Many people wondered why the feds "took so long" to go after Backpage, and it turns out that a big part of the reason is that there wasn't enough evidence of actual sex trafficking (a federal crime, which is not protected by Section 230) -- just prostitution, which is not a federal crime.

State Attorneys General weren’t the only prosecutors itching to get in on the action. The Feds were too, but they had a problem: They couldn’t identify a viable crime. Prostitution wasn’t a federal offense, and they didn’t seem to think they could make sex-trafficking charges stick. Back in 2011, the Justice Department had quietly opened a grand jury investigation into Backpage in Washington state; according to an internal memo, prosecutors interviewed more than a dozen witnesses and subpoenaed more than 100,000 documents but ultimately decided that “a successful criminal prosecution of Backpage is unlikely.” They thought about trying to make a case under the Travel Act but, as they noted, that theory “had never been litigated in a similar context.”

Instead... they went with another approach that we've talked about here a lot: civil asset forfeiture:

So they formulated another potential plan of attack. “Moving forward,” they wrote, the Justice Department should “take a hard look at bringing this case as a civil forfeiture case,” with its “lower standard of proof.” In this scenario, the government would seize a website operator’s assets and property, then force them to prove they weren’t implicated in criminal activity.

The government first tested this theory against a few smaller sites.

In June 2014 the Justice Department put this plan into action. It seized myRedBook and demanded that the site’s owner, Eric “Red” Omuro, forfeit $5 million in cash and property. The following summer, the Department of Homeland Security launched a similar raid against “the nation’s largest online male-escort service,” Rentboy, and its owner, Jeffrey Hurant.

At the time, we noted that these cases raised significant legal questions, because they seemed to go against Supreme Court precedent regarding the seizure of expressive materials. However, with the feds taking all their assets and threatening huge jail terms, you'll never guess what happened next:

Both men pleaded guilty to violations of the Travel Act in exchange for lighter sentences and lesser fines. The forfeiture approach seemed to be working.

So, even though these cases "raise all kinds of thorny constitutional questions," those questions never have a chance to get answered:

The asset freezes raise all kinds of thorny constitutional questions. Generally speaking, federal prosecutors are permitted to freeze a defendant’s assets based on probable cause alone, even before the defendant has a chance to challenge the government’s case in court. But regular forfeiture rules do not apply in cases involving forums for speech—newspapers, films, books, magazines, websites. The US Supreme Court has decreed that when the government seizes these expressive materials, or the proceeds derived from them, it must immediately hold an evidentiary hearing to determine whether the seizure is valid.

And that's also the approach the feds have taken against Backpage. But on steroids. The feds have designed it so that it has Larkin and Lacey fighting the case on two fronts: the asset seizures in one court, and the criminal charges in another:

But the Backpage defendants have a problem: So far, they can’t get a court to hear their claims. Since last summer, the Justice Department appears to have been playing a clever shell game. They’ve brought cases against the Backpage defendants in two federal districts—civil seizures in Los Angeles, criminal matters in Phoenix—and they’re making the defendants spend what money they have left chasing Uncle Sam from place to place. So far, judges in both districts have agreed with the government’s suggestion that they should defer to each other, effectively denying the defendants a forum to challenge the asset freezes. The US Court of Appeals for the Ninth Circuit will hear arguments in the case in July.

As a lawyer in the article notes, this appears to be the DOJ doing "an end run around the First Amendment."

Even if you think Larkin and Lacey are awful people (and the article is not at all sympathetic in its portrayal of the two men), if the First Amendment and due process matter to you, the details here also matter significantly.

Indeed, the article notes that using the Travel Act in combination with civil seizures and forfeiture seems to be an end run around Section 230:

Even if Fosta-Sesta is one day ruled unconstitutional, as many legal scholars expect, government officials have shown that they’re willing to subvert Section 230 in other ways. If Lacey and Larkin lose—if the asset seizures stand and the Travel Act charges stick—prosecutors will have a valuable new weapon to wield against Silicon Valley.

This entire approach has been a dangerous disaster. And, again, that applies even if you hate Backpage, Larkin, Lacey and everything they stand for. There are really serious due process and free speech issues here -- not to mention all of the evidence that taking down the site has put more people at risk and was based almost entirely on made up stats.

The article is quite clear that Backpage did some sketchy stuff -- but it also was pretty clear that it tried to stop sex trafficking and the legal attack on them is highly questionable on a variety of levels. It's easy to write off Backpage as a "bad actor" -- it may well be that. But the most difficult (and often most important) cases, often involve bad actors. And those situations set precedents for everyone else -- and after reading Biederman's article, I'm more concerned than before about the nature of the DOJ's prosecution.

Filed Under: asset seizure, free speech, intermediary liability, james larkin, michael lacey, prostitution, section 230, sex trafficking
Companies: backpage

Section 230 Keeps The Internet Open For Innovation

from the keep-in-that-way dept

Sex-trafficking victims in California are suing Salesforce, claiming the company helped the now-defunct website Backpage, a classified ads website, in enabling prostitution. Whatever your view on the harm to the plaintiffs, this suit could hurt American innovation. By holding Salesforce accountable for the actions of its customer, the suit opens the door for other innovators to be held responsible when users post illegal content – a dangerous precedent in today’s internet era.

The question of who is responsible for online content is a difficult issue. Intermediary liability protection is the common-sense idea that internet platforms are not responsible for content posted by users. Enshrined in Section 230 of the 1996 Communications Decency Act, this law allowed American companies to be the innovators of the internet. In fact, the internet as we know it functions because of Section 230. Without Section 230, any site hosting user-generated content would have to screen every submission to avoid lawsuits.

On a practical basis, doing this in real time would be impossible due to the sheer amount of content created: Twitter alone hosts 350,000 tweets per minute; 200 billion tweets per year. Similarly, YouTube would be liable for any of the content its 1.9 billion monthly users might upload. If any single user post could lead to legal action against the social media platform, that platform would shut down.

Today's internet experience would be virtually impossible.

And so Section 230, the cornerstone of today’s innovative internet, was considered inviolable – until 2018, when Congress was approached by groups representing victims of sex trafficking (and quietly backed by Hollywood studios, the hotel industry and others who saw the chance to weaken online competitors that were taking their customers and disrupting their businesses). While some groups advocating for sex-trafficking victims opposed it, many of these proponents pushed FOSTA/SESTA into law, which allows trial lawyers to sue social media sites that “facilitate” sex trafficking – and, although undoubtedly well-intentioned, the bill takes aim at Section 230.

Though (oddly), the Salesforce lawsuit doesn't invoke FOSTA/SESTA, the law's hastily written language was so broad and vague it could potentially impose liability to any website with a comments section. And immediately, internet services began pulling down popular forums featuring consumer-generated content. Other websites eliminated sections or imposed broad filters. Congress made the internet experience less rich for users and more difficult for entrepreneurs, all while doing very little to protect actual victims of sex trafficking.

For all the damage done to free speech online, FOSTA/SESTA has had little upside. Backpage was seized by the FBI before the bill was signed into law, proving that FOSTA/SESTA was not necessary to take down wrongdoers. More, FOSTA/SESTA forced sex traffickers underground, making it harder for authorities to identify and rescue victims.

Fortunately, our nation knows how to choose freedom over fear and innovation over regulation. Consider the successful SOPA/PIPA protests of 2012, which pushed back against overbroad copyright laws that would have crushed the burgeoning digital economy. Thanks to the protests, websites with user-generated content continue to flourish today.

Section 230 is the legal foundation of the internet – not a shield for criminal liability. But it remains an important protection to encourage entrepreneurs and innovators to start internet businesses. We can't allow misguided rulemaking and ruinous litigation to discourage that. We must keep the internet open for innovation.

Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and a New York Times best-selling author. He is the author of the new book, Ninja Future: Secrets to Success in the New World of Innovation. His views are his own.

Filed Under: cda 230, fosta, innovation, open internet, section 230
Companies: backpage, salesforce