Yet Another Court Says Victims Don't Need SESTA/FOSTA To Go After Backpage

from the well,-look-at-that dept

We already pointed to a ruling in Massachusetts showing that victims of sex trafficking don't need SESTA/FOSTA to get around CDA 230 and go after Backpage when Backpage is an active participant, and now another court has found something similar. Found via Eric Goldman, a court in Florida has rejected a motion to dismiss by Backpage on CDA 230 grounds. The full order is here (and embedded below).

As with other cases (including the Massachusetts case) the real issue here is whether or not Backpage was just a service provider, or if it crossed the line into being a content provider itself, and did so in ways that broke the law. To be clear, the court here does seem... confused about CDA 230 and how other courts have ruled, and basically rejects plenty of existing caselaw and the nature of 230:

Some courts characterize the "protection" of § 230(c)(1) as "a broad immunity," but this view is not universal.... And some courts regard § 230(c)(1) as an affirmative defense that needs not be overcome by a complaint's allegations and is not the proper subject of a Rule 12(b)(6) motion to dismiss. Some courts have found that even if it is affirmative defense, the issue of the applicability of §230(c)(1) can be resolved on a 12(b)(6) motion if it is clear from the face of the complaint...."

That basically is laying out a few different interpretations of CDA 230 -- but does little to note that nearly all courts have found it to represent a broad immunity, and one that can be used at the motion to dismiss stage. Instead, this ruling points to a few limited cases that have found otherwise, and acted as if there's a widespread dispute with equal balance on either side. It also exaggerates the finding in some of those other cases, such as in Barnes where the court noted 230 immunity is not "absolute" (that case involved an employee promising to do something, which removed the 230 immunity). But here, the court interprets "not absolute" as meaning "not broad." And, as Goldman points out in his post, those two things are not synonymous.

Also odd in this ruling is that, unlike in the Massachusetts ruling, the court here presents no explanation of why Backpage has passed the threshold from service provider to content provider, and thus is no longer immune under CDA 230. Instead, it just says sufficient evidence has been presented.

Plaintiffs have alleged facts suggesting that Defendants materially contributed to the content of the advertisements, and thus the issue of CDA immunity cannot be resolved on a Rule 12(b)(6) motion to dismiss in this case.

That's... a pretty important sentence in a ruling, and you'd hope that it was backed up with evidence for why that is (as happened in the Massachusetts case). That's not to say it's wrong. It might be right, but it's important to know what activities take one from being a service provider to a content provider, and courts have fought over these issues in the past. Here, what you see in that sentence above is basically all the court has to say.

The court does note other problems with the complaint, and tells the plaintiffs to try amend the complaint, and this time to actually plead an actual federal claim. As it notes the existing claim doesn't make much sense -- arguing that Backpage tried to hide advertisements of minors, but this case doesn't even involve a minor. However, as Eric Goldman points out, even with this weak of a complaint and with a court that doesn't really explain its reasoning, the court is willing to get past the CDA 230 arguments, and again this raises the issue of why did we need SESTA and FOSTA in the first place.

The loudest advocates for SESTA/FOSTA kept falsely portraying Backpage as 100% immune from any claim due to CDA 230. Yet, this ruling and last week's ruling (not to mention an earlier ruling in Washington, a federal grand jury, and a Senate investigation) certainly suggested that Backpage was not 100% protected by CDA 230. Instead, just as Congress intended with CDA 230, it was protected from illegal actions done by others on its platform, and is not protected from illegal actions that it does itself.

But, of course, none of this seems to matter. Congress overwhelmingly voted SESTA/FOSTA through, and we're hearing that President Trump will sign it into law sometime next week.

Filed Under: cda 230, florida, fosta, immunity, sesta
Companies: backpage

Senator Portman Pushes Forward With SESTA, Despite Being Misinformed

from the this-is-bad dept

It appears that Senator Rob Portman has decided to push forward with SESTA -- the Stop Enabling Sex Traffickers Act -- a bill with problems we've discussed in great detail. Despite previous suggestions that the bill would not move forward until there were important fixes in place, it's now been announced that a committee vote will happen next week. It's possible that the bill will be amended prior to that vote, but as of right now, that's not clear. (Update: And about the time this post was published, a a manager's amendment has been pushed out. It fixes some of the most egregious problems with the bill, but leaves most of the problems intact.)

In support of this renewed push, Portman has published an opinion piece at Wired that no fact checker should have allowed. It is fully of completely faulty statements, and fairly incredible ones at that. It's kind of scary that it appears that Portman may be looking to undermine some fundamental principles of how the internet works based on a bunch of false statements. Even the title is just wrong:

How Federal Law Protects Online Sex Traffickers

It doesn't. Federal law is clear that law enforcement can go after sex traffickers. There is nothing in SESTA about going after sex traffickers. SESTA is entirely about going after internet platforms because someone may have used them in the process of "facilitating" sex trafficking.

It is a stain on our national character that sex trafficking is increasing in this country, in this century, and experts say it is happening because of the internet and the ruthless efficiency of online sex trafficking.

So much to unpack in this one sentence. As discussed earlier, the supposed epidemic of sex trafficking is grossly exaggerated. That is not to say it doesn't happen -- because it quite clearly does, and when it does happen, it's a serious problem. But Portman specifically has massively exaggerated the scope of the problem, and when you do that it's easier to support ridiculously overbroad "solutions" that would actually turn the small problem into a much bigger problem.

Sex trafficking has moved from the street corner to the smartphone, and online sex trafficking has predominately occurred through one website: Backpage.com.

And, as explained multiple times, if Backpage has, in fact, broken the law, there are already laws to deal with it. Backpage itself has already shut down its adult section (which only became big after politicians pressured Craigslist to do the same -- suggesting that chasing traffickers from platform to platform won't do much to stop trafficking). Just a few years ago Congress passed the SAVE Act, specifically targeting Backpage. It has not been used. Instead of passing another law, perhaps Portman should be asking why it hasn't been used? Similarly, CDA 230 has never covered federal crimes. The DOJ has always been able to target Backpage if it was violating the law (and it's been reported that the DOJ already has a grand jury investigation going into Backpage's actions). So why do we need a new law?

Headlines tell the tragic stories: In March 2013, police reported that a Miami pimp forced a teen to tattoo his name on her eyelids. In June 2017 in Chicago, feds charged a man for prostituting a 16-year-old girl before her murder. That same month, three people were accused of pimping a pregnant teen for sex.

All of these stories are horrible. But all of them involve criminals who were caught, with some of the evidence coming from Backpage. So, it seems like a bigger question may be: why aren't the police working harder to scan Backpage for evidence of these crimes and stopping them earlier? In the past, we've noted that law enforcement has successfully used these sites as tools to track down pimps and traffickers. It seems so odd to focus all of the attention on websites rather than the actual traffickers. It's almost as if Portman is trying to take the blame away from the traffickers themselves.

These heinous crimes, and countless others, involve Backpage, and yet the website has repeatedly evaded justice for its role in child sex trafficking.

Because Backpage wasn't doing the trafficking. And again, if they were, law enforcement is already able to go after the platform.

Despite these facts, courts have consistently ruled that a federal law called the Communications Decency Act protects Backpage from liability for its role in sex trafficking. This 21-year-old law was designed to ensure websites aren’t held liable for crimes others commit using their website. The legislation has an important purpose, but now, because of broad legal interpretations, it is used as a shield by websites that facilitate the sale of women and children for sex.

This is both wrong and a sleight of hand. First, no court has said that Backpage is protected from its role in sex trafficking. If Backpage is actively involved in the sex trafficking itself, it does not qualify for CDA 230 protections. And, again, even without that, there is no immunity in CDA 230 for federal crimes (and, again, the DOJ has a grand jury going on this). The fact that Portman is so proactively misrepresenting nearly everything should worry people.

Similarly, sites are not using CDA 230 "as a shield," but to make it clear that the focus should be on actual traffickers rather than on the tools they use.

Traffickers use cars as well. Will Portman's next bill be holding Ford and GM responsible for any trafficking that uses cars?

The Communications Decency Act should not protect sex traffickers who prey on the most innocent and vulnerable among us.

IT DOES NOT. It never has. Nothing in CDA 230 protects traffickers. Traffickers are violating the law and law enforcement has every right to go after them. Hell, the three examples that Portman presented above all involve traffickers arrested by law enforcement. That seems to contradict his own point.

I do not believe those in Congress who supported this bill in 1996 ever thought that 21 years later, their vote would allow websites to knowingly traffic women and children over the internet with immunity.

Again, if it the sites themselves are involved in the trafficking, then CDA 230 already doesn't cover them.

However, courts and attorneys generals have made it clear that their hands are tied. In the most recent example, in August, a Sacramento judge threw out pimping charges against Backpage because of the liability protections afforded by this 1996 law, and he invited Congress to fix this injustice.

No. Their hands are tied in prosecuting Backpage without evidence of Backpage itself breaking the law. That's different. It doesn't tie their hands in prosecuting actual traffickers. And it doesn't stop them from prosecuting Backpage for evidence of actual crimes. Notice how Portman conveniently leaves out that while the judge in Sacramento threw out the pimping charges (because Backpage isn't doing the pimping) it let the case move forward on money laundering claims. In other words, Backpage is still in court, despite Portman implying that the entire case was dismissed.

This injustice is why I, along with more than two dozen of my colleagues from both sides of the aisle, introduced the Stop Enabling Sex Traffickers Act.

The bill would do two things. First, it would allow sex trafficking victims to get the justice they deserve by removing the law’s unintended liability protections for websites that knowingly facilitate online sex trafficking. Second, it would allow state and local law enforcement to prosecute websites that violate federal sex trafficking laws.

Portman is misleading in his description of his own bill. It does not only apply to those who "knowingly facilitate online sex trafficking." The "knowledge" standard in the bill is extraordinarily broad, covering "knowing actions" that are then used to facilitate sex trafficking. The distinction may be subtle, but it's huge. It means that a platform just needs to know about what its service can do, not the outcome. Wikipedia "knows" that people can add links to its online encyclopedia. It doesn't "know" when someone advertises sex trafficking via such a link. But under the current standard in the bill, that doesn't matter. The language about knowledge of how a service works, rather than the illegal activities, is a real problem with this bill.

The bill will achieve these ends without threatening the years of progress we have made in creating a free and open internet.

He says this despite the fact that nearly every internet company and expert says he's wrong. And plenty of sex trafficking experts as well. Just this week, a sex trafficking expert who helped write the State Department's own report on sex trafficking has said that this would create huge harms for the internet and for victims of sex trafficking.

The standard for liability in our bill is a high bar to meet.

This is simply incorrect. Multiple tech and legal experts have explained this over and over again. Simply saying there's a high bar does not make it true. The plain language of the bill shows that the bar is extraordinarily low.

Some in the tech community incorrectly claim that this bill will expose innocent websites to frivolous lawsuits. But my Senate colleagues and I carefully crafted this legislation to remove immunity only for websites that can be proven to have intentionally facilitated online sex trafficking.

Again, he can repeat this false claim as much as he wants, and it still doesn't make it true. The language in the bill is clear. If he wants it to only target those who have "intentionally facilitated online sex trafficking" he needs to change the language. Daphne Keller, at Stanford, just released a paper this week on ways to fix SESTA, and someone should send a copy to Portman.

There are already exemptions in the Communications Decency Act’s liability protections for intellectual property violations that exist without undermining the fundamental intentions of the law. It is unreasonable to suggest the result of a narrowly tailored exemption against knowing sex traffickers would be any different.

This is the most frustrating line in the entire piece. If Portman had the slightest bit of understanding about how the DMCA's notice-and-takedown provisions are routinely abused to censor the internet, there's no way he'd claim that it hasn't "undermined" anything. The fear here is that SESTA creates a kind of DMCA notice-and-takedown on steroids, because it adds possible criminal penalties. From the description here, it almost appears as if Portman doesn't even know that DMCA safe harbors exist for copyright, or that the lack of CDA 230 coverage for trademarks created a massive influx of court cases until eventually the courts effectively said that there was a DMCA-like safe harbor over trademarks as well.

In short, Portman seems to be either making an argument out of pure ignorance, or intentionally misrepresenting what's happening on the intellectual property side of the fence.

We have a moral responsibility to protect the most vulnerable among us and combat this injustice. Every day we wait is too late for countless vulnerable women and children.

And yet, absolutely nothing in SESTA actually protects those victims. They will still be trafficked. The bill only targets internet companies providing platforms that traffickers use. They will keep using the internet to traffic, even if badly targeted lawsuits take those companies down. Indeed, it's likely that they'll move to platforms that make it more difficult for law enforcement to figure out what's going on. SESTA will make the problem worse, not better, and will create tremendous collateral damage in the meantime.

Filed Under: cda 230, intermediary liability, rob portman, sesta, sex trafficking
Companies: backpage

Backpage's Biggest Law Enforcement Critic Doesn't Think He Needs SESTA To Take Down Backpage

from the hello-sheriff-dart dept

One of Backpage's most vocal critics in law enforcement has been Cook County Sheriff, Thomas Dart. As you may recall, this has been a nearly decade-long obsession with Sheriff Dart, in which he has been slapped down many, many times by courts. In 2009 he sued Craigslist for hosting adult ads, only to get slapped down pretty hard by a court explaining to him that you can't blame an online service for how its users use it. Once the ads on Craigslist moved to Backpage, Dart had a new target, which he regularly complained about in the press. In 2015, knowing he couldn't sue Backpage directly, he instead (successfully) strongarmed all the payment companies that worked with Backpage into cutting off service.

In response, Backpage sued Dart and very quickly won. The district court quickly pointed out that this seemed like a pretty clear First Amendment violation, with a government official using the law to attack non-criminal actions, creating classic prior restraint. The appeals court agreed with a masterful ruling by Judge Posner, about how this appeared to be a clear abuse of power by Sheriff Dart to bankrupt a company he disliked, but over whom he held no jurisdiction.

The case was then sent back to the lower court on a few points, and the two sides have been flinging paper back and forth for a while -- mostly to no avail. There had been little to no action in the case for many months... until last week Sheriff Dart suddenly sprung up to ask the court to reopen the process so he can issue subpoenas to Backpage, to dig more into what he insists must be criminal activity.

He's basing this on media reports related to a separate investigation into Backpage, which at the very least do raise some questions about whether Backpage is truly involved in the creation of its ads (which would take away its CDA 230 protections). Dart claims this proves that Backpage was lying to the court about how much of a hand it had in crafting ads on its site.

This July, THE WASHINGTON POST and NBC NEWS each published explosive articles reporting that Backpage is actively recruiting prostitutes and even creating ads for them to post on its website. Copies of these articles are attached as Exhibits A and B, respectively. While “Backpage has always claimed it doesn’t control sex-related ads, [n]ew documents show otherwise.” Exhibit A. Backpage has been “aggressively soliciting and creating sex-related ads.”...

The articles explain that the discovery of incriminating documents showing Backpage’ s solicitation and ad creation came about accidentally following the seizure of computers from one of Backpage’s Philippine agents in an unrelated civil lawsuit, but the fact that the revelations were accidental does not take away from their explosive character. The seized documents, if authentic and the reporting about them correct, prove that the essential premise of the original and amended complaints—that Backpage does not provide any of the content of the ads soliciting prostitution—is not well grounded in fact. Backpage has been lying to this Court...

[....]

Defendant now seeks leave to obtain through subpoena the very documents discussed in the two news articles—documents which, if authentic, corroborate the Red Beauty Sting and prove that Backpage has encouraged and participated in illegal activities, including the creation of advertisements that would destroy its Communications Decency Act defense that it is merely a web platform posting the advertisements of others.

Indeed, if it comes out that Backpage was actively involved in the creation of the content, it does not get CDA 230 protections. Under the Roommates.com standard, you can lose 230 protections if you "develop" the comment -- which means "materially contributing to its alleged unlawfulness." I have no idea if Backpage actually goes that far, but if it does, then its 230 protections go out the window and it's in a lot of trouble.

But here's the important point: for all the hubbub over the supposed "need" to break CDA 230 with SESTA in order to go after Backpage for this activity, Sheriff Dart's motion shows that there's no reason for SESTA. If Backpage truly did what those media reports are claiming, then CDA 230 won't apply and Backpage is hosed.

This is something that gets completely lost in all of the talk about CDA 230, where people (falsely) think that it completely takes away any liability for criminal activity. It does not. It just makes sure that the liability is actually on the parties engaged in the criminal activity. If it's the end users, CDA 230 does nothing for them. And if it's the platforms themselves, then CDA 230 also doesn't protect them from their own activities. The fact that Sheriff Dart is arguing that he can now go after Backpage again, and that the CDA 230 protections are gone, is a good reminder that we don't need SESTA to go after Backpage if it really violated the law.

Filed Under: cda 230, intermediary liability, section 230, sesta, thomas dart
Companies: backpage

California Case Against Backpage Moves Forward Over Money Laundering Claims

from the why-do-we-need-to-change-cda-230? dept

Late last year, we wrote about ridiculous charges by California's then Attorney General, Kamala Harris, against Backpage.com for "pimping." As we pointed out at the time, Harris clearly knew the case was a loser. It completely exaggerated what Backpage had done, and Harris herself had earlier admitted that she had no authority to go after an internet platform for how people used it. A judge quickly threw out the charges against Backpage... and Harris turned around and filed even more charges against Backpage's execs, including repeating the pimping charge and adding in "money laundering."

As we noted at the time, the money laundering charges seemed pretty questionable. It's based on the fact that Backpage had set up a separate (and separately named operation) to handle billing. The complaint argues that this was a form of money laundering, to hide from credit card companies that the money was being spent on prostitution. That leaves out, of course, that part of the reason why Backpage likely had to set up such a structure was because Cook County Sheriff Thomas Dart had threatened credit card companies if they didn't stop working with Backpage -- a move that was later deemed to be a clear First Amendment violation against the company by Sheriff Dart.

In a new ruling in the case in California, the court has thrown out nearly all of the charges -- including the "pimping" charges that were already previously thrown out. But they are allowing the money laundering charge to go forward -- though it does appear the court recognizes that the state will have a hard time winning it's case.

This Court agrees the complaint is not a model of clarity. However, the nature of the charges and theories of prosecution are ascertainable from the amended charging instrument. Specifically, the People now allege that Defendants conspired to orchestrate a bank fraud by misrepresenting to credit payment processors that they were not processing transactions from Backpage, and this misrepresentation would trigger a release of funds from banks. The overt acts alleged clarify that Defendants created multiple classified websites, and when applying for (at least one) merchant account, Defendant Ferrer omitted any reference to Backpage, despite intending to process Backpage transactions through the account. The People allege that credit payment processors, along with American Express, would not have knowingly processed the payments for Backpage and the banks would not have released funds absent Defendants’ trickery.

These allegations provide sufficient notice for Defendants to understand the nature of the charges and prepare a defense. Essentially, either Defendants did - or did not - materially represent to credit payment processors in a scheme to fraudulently obtain money from banks. If Defendants did so, this may form the basis for a money laundering charge. (Cf. United States v. Mason (9th Cir. 1990) 902 F.2d 1434, 14431 [federal money laundering conviction supported by evidence that bank would not have opened a merchant account had it known it was laundering credit charges for prostitution; the false representation to the credit processor influenced the bank’s release of funds].) The factual resolution to that question, however, is not at issue here. What is at issue is whether the First Amended Complaint has been sufficiently pled to meet statutory and due process requirements.

The ruling goes on to note that California prosecutors "must show that the profits came solely from that underlying criminal activity" which may be difficult, given that it's repeatedly failed to show any underlying criminal activity done by Backpage itself (rather than Backpage's users -- many of whom may, in fact, be engaged in criminal behavior). The court also does toss out some of the money laundering charges: the ones based on the completely bogus "pimping" charges.

Of course, it's important to note that this case continues against the backdrop of Congress rushing headlong towards trying to amend CDA 230 to allow states, like California, to bring charges against companies like Backpage (and to allow individuals to sue in civil court as well).

As we've discussed, that bill, called "SESTA," will almost certainly do a lot more harm than good for the victims of sex trafficking. However, it is important to note that when the bill was introduced, it was clearly designed to target one company in particular: Backpage. Just read the quotes from various Senators co-sponsoring the bill, who make it clear that the bill is to take down Backpage:

Senator Portman: “Stopping trafficking is one of the great humanitarian and human rights causes of the 21st century. Our bipartisan investigation showed that Backpage knowingly facilitated sex trafficking on its website to increase its own profits, all at the expense of vulnerable women and young girls. For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. This bipartisan, narrowly-crafted bill will help protect vulnerable women and young girls from these horrific crimes.”

Senator Blumenthal: “Our narrowly tailored legislation would give victims of sex trafficking their day in court. For too long, countless young people have been victims of prostitution, human trafficking, and horrendous violence through ads on websites like Backpage.com. This is not an abstract debate: these advertisements come with a real, unconscionable human cost.”

Senator McCain: “For years, Backpage.com has knowingly facilitated online sex trafficking and child exploitation, destroying the lives of innocent young women and girls,” said Senator McCain. “It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes. Our legislation would eliminate these legal protections and ensure companies like Backpage are brought to justice for violating the rights of the most innocent among us.”

Senator McCaskill: “Until our investigation showed Backpage was actively facilitating sex trafficking, the company had repeatedly used the federal law that protects online platforms to escape accountability for the disgusting crimes it aided. But even as we’ve helped deny Backpage its legal shield in these cases, we need a broader effort to stop the next Backpage, before it starts. And that’s what this bipartisan bill is all about—better protecting Missouri’s families from sex trafficking by making clear to any company considering going into business with sexual predators, that the law won’t protect them from responsibility.”

Senator Heitkamp: “For too long, websites like Backpage.com have profited from knowingly facilitating the sex trafficking of minors and others through the use of their online platform – in many instances, helping traffickers skirt law enforcement and their own standards to advertise minors for sex. And what’s worse: they’ve been able to continue doing this without penalty by claiming protection under the First Amendment. That’s a disgusting and cowardly invocation of one of our nation’s most cherished freedoms – neither the First Amendment nor the Communications Decency Act was written to shield those who help enslave and sell children for sex. It’s past time to hold websites that make money from sex trafficking accountable, just as our laws already do for traffickers, for the enslavement and abuse of men, women, and even children – who have been reportedly trafficked at a near 850 percent increase since 2010 largely because of the anonymity internet sales provide – and our bipartisan bill would work to do that by cracking down on these horrific crimes online.”

Senator Klobuchar: “Websites like Backpage.com facilitate sex trafficking across Minnesota and our country. But shutting down these sites isn’t enough, we need to stop protecting perpetrators and ensure victims are able to seek the justice they deserve. The bipartisan Stop Enabling Sex Traffickers Act is another step forward to putting an end to these crimes once and for all.”

Senator Lankford: “Heinous crimes like sex trafficking deserve to be met with the fullest extent of the law. We must eliminate loopholes to prevent any entity from avoiding the justice they deserve. This legislation is needed to help protect vulnerable people from modern-day slavery, which unfortunately has been facilitated more and more online. I’m proud to work with my colleagues on the PSI Subcommittee to not only investigate Backpage, but to address the urgent, moral issue of human trafficking.”

Senator Lee: “The Communications Decency Act was never meant to provide immunity to websites like Backpage.com. Today’s legislation will deter others from facilitating sex trafficking and allow victims the possibility of restitution, while preserving the core protections of Section 230.”

Senator Rubio: “Perpetrators of human trafficking and websites like Backpage.com that knowingly facilitate sex trafficking of children must be held accountable. Sex trafficking is an ongoing issue in Florida and across our nation, and this legislation is an important step forward in ensuring that those engaging in and helping to facilitate these crimes are held responsible and all victims receive the justice they deserve.”

And yet, as we pointed out, nothing in CDA prevents the DOJ from going after Backpage if it actually engaged in prostitution or sex trafficking. Indeed, it's been widely reported that the DOJ has been investigating Backpage. The fact that no charges have been brought by the DOJ is at least worth noting. It's possible that more investigation is needed, or it's possible that there actually isn't a violation that the DOJ could find.

But, either way, this latest ruling, allowing at least some of the money laundering charges to move forward raises the question of why we need to rush forward with this new bill, that will have massive and much wider consequences for the internet. Law professor Eric Goldman has a thoughtful analysis of this latest ruling, in which he suggests this shows that calling out Backpage by all those Senators has likely always been a smokescreen for attacking the underpinnings of the internet:

This ruling has potentially important consequences for the pending bills to amend Section 230. Much of the rhetoric about the bills has specifically targeted and called out Backpage–and only Backpage. A key assumption for the bills is that Backpage needs to be crushed and existing law isn’t getting the job done because of Section 230. As this ruling shows, existing law may in fact be sufficient to crush Backpage irrespective of Section 230. As a result, there is no need–and certainly no urgency–to rush through amendments to Section 230, with potentially major consequences for the entire Internet, while courts are still resolving the matter. (Indeed, that would be true even without this ruling because of the pending grand jury investigation into Backpage in Phoenix that may use the SAVE Act, the anti-Backpage law Congress just enacted in 2015).

However, it’s possible that, despite the anti-Backpage rhetoric, the advocates supporting the pending bills aren’t really targeting just Backpage but have larger objectives to undermine or eviscerate Section 230. I expect this ruling will expose the advocates’ true agendas. Because a state prosecution of Backpage is making progress without any changes to Section 230, those advocates should be willing to acknowledge that amendments to Section 230 aren’t essential to achieve their anti-Backpage goal. More likely, I expect the bill supporters to shift the rhetoric about the need for the bills to deemphasize Backpage as the target. If so, this would highlight that Backpage was only a surrogate target–and other Internet entities are also in the bills’ target sights. Once that rhetorical shift occurs, I think we deserve clear answers about who else the proponents expect will be affected by the bills–and how.

Again, SESTA is a huge threat to the way the internet works today -- and in a way that will actually do great harm to actual victims of sex trafficking. It's really depressing that those whose true aims are to undermine the internet are so coldly hiding behind false claims of protecting victims of sex trafficking just to attacking the internet.

Filed Under: california, cda 230, intermediary liability, kamala harris, money laundering, section 230, sesta
Companies: backpage, backpage.com

Sex Trafficking Expert: CDA 230 Helps Victims And SESTA Would Harm Trafficking Victims

from the don't-believe-the-hype dept

Over the last few weeks, we've been talking about SESTA -- the Stop Enabling Sex Traffickers Act. Part of our argument is that the bill will be completely counterproductive to its own goals. As we explained in a letter to Congress (signed by a bunch of tech companies), after two decades of watching CDA 230 in practice, it's clear that SESTA will do the exact opposite of what supporters claim it will do. But that's from the point of view of internet companies who know how the law intersects with technology.

But what about experts in trafficking. In our letter, we admitted that area is not our expertise, but that we're all supportive of the idea of stopping trafficking. However, someone who is an expert in trafficking is Alexandra Levy, a law professor at Notre Dame, who works at the Human Trafficking Pro Bono Legal Center and teaches a class entirely about human trafficking. She's written up a fascinating blog post for professor Eric Goldman's blog where she explains why SESTA will be a total disaster for human trafficking.

More than two decades later, Section 230 allows people to do more than just set the terms of acceptable speech. It also empowers countless users — including the FBI, victim advocates, concerned citizens, family members, and nonprofit organizations, among others — to proactively fight atrocities such as human trafficking. By removing liability from internet intermediaries (such as Backpage), Section 230 enables intermediaries to serve as a natural pathway between victims and those who want to help them.

Due to its wide accessibility, Backpage has enabled people to find and recover family members (including with the help of journalists); nonprofits point to it as a resource for identifying and reaching out to victims; and scores of criminal indictments reveal its value as a point of connection between police and victims. Statistics also show how Section 230 may assist the fight against human trafficking: the National Center for Missing and Exploited Children (NCMEC), among others, reports that the majority of child sex trafficking reported to them involve Backpage.

None of this should be surprising: after all, it stands to reason that victims whose services are advertised in more visible places, like Backpage, are more visible to everyone — and thus easier to recover. In this way, Backpage sets a trap for traffickers: lured by the prospect of reaching a large, centralized repository of customers, traffickers end up revealing themselves to law enforcement and victim advocates. There’s nothing to suggest that Backpage causes them to be victimized, but plenty of reason to believe that, without it, they would be much harder to find. Section 230 allows Backpage to serve as a lifeline between trafficking victims and those who want to usher them to safety.

As Levy goes on to explain, while so many seem quick to blame Backpage for trafficking, they're confusing Backpage being used to rescue victims and track down traffickers as somehow being responsible for the trafficking happening in the first place. She notes, as we suggested, that Section 230 makes it possible for sites to shine a light on trafficking, to alert authorities, and to play a strong role in preventing or stopping trafficking. Taking that away will kill that. Hiding trafficking doesn't stop the trafficking. In fact, it can make things worse.

But while Backpage isn’t allowed to traffic people, Section 230 currently prevents it from getting in trouble for shining a light on human trafficking. That’s the crucial distinction at the heart of Section 230, and it’s the provision that proves most infuriating to those who insist that causing victims to disappear from Backpage is going to somehow return them to safety. Because of Section 230, people who try to sue Backpage for simply revealing trafficking have been unsuccessful (if they could show that Backpage had engaged in trafficking, their suits would not be dismissed).

In order to get trafficking victims to stop appearing on Backpage, these advocates call for legislation to limit its Section 230 protection. Their most recent move is the “Stop Enabling Sex Traffickers Act of 2017” (“SESTA”), introduced in the Senate in early August. Among other things, SESTA would allow people to directly sue Backpage (and other intermediaries) for damages for human trafficking — even if Backpage didn’t do anything more than shine a light.

This is part of what's so infuriating about the rush to pass SESTA. It's one of those bills that makes claims that nearly everyone supports. Sex trafficking is bad and of course we should support efforts to stop it. But, this bill wouldn't do that -- and, in fact, would almost certainly make the problem worse. Tech companies who have dealt with CDA 230 know that already, and it's good to see some sex trafficking experts come to the same conclusion.

Filed Under: alex levy, cda 230, intermediary liability, section 230, sesta, sex trafficking
Companies: backpage

Senate's Latest Attack On Backpage Will Be Massively Counterproductive, Create Tremendous Harm

from the this-is-a-bad-approach dept

It's no secret that there are a bunch of folks in the Senate who really, really, really dislike the fact that the site Backpage has been abused by some users for sex trafficking. They should be happy that through a lot of public pressure, Backpage has shut down its adult section.

For reasons that are not entirely clear, many people seem to blame Section 230 of the CDA for the fact that sex traffickers have used Backpage.com. This is... weird and doesn't make much sense. After all, Section 230 doesn't apply to federal crimes around sex trafficking. So, if the platform itself is violating the law, the DOJ has the power and every right to go after the platform. Furthermore, as we've noted time and time again, these platforms have actually been tremendously helpful in allowing law enforcement to track down those responsible for trafficking and to help victims of trafficking. Still, because of this misplaced focus on CDA 230, earlier today, a bunch of Senators released a counterproductive and dangerous bill that would blow a massive hole through CDA 230, and it's clearly written 100% to focus on Backpage. Nearly all of the quotes about the bill from the Senate co-sponsors mention Backpage.

And that's... odd. Because just two years ago, Congress passed, and President Obama signed, another anti-trafficking bill that had provisions that were similarly designed solely to target Backpage. So why aren't those actually being used if Backpage is such a problem (and, again, the DOJ could easily go after Backpage for violating trafficking laws if it actually did so). It's especially odd that none of the supporters of this new bill even mention the fact that they passed a similar "kill Backpage" bill just two years ago and no one's tried to use it.

And even worse, the approach in this new bill, dubbed the Stop Enabling Sex Traffickers Act, will be massively counterproductive to the goal of stopping sex trafficking. While the bill's supporters claim it is "narrowly focused," it is anything but that. It opens up a giant hole in CDA 230 -- the law that protects internet platforms from being blamed for the actions of their users -- saying that if federal sex trafficking violations (which, again, are already NOT covered by CDA 230) are involved, state Attorneys General and private individuals can now sue platforms -- especially if the platforms have "knowledge" of how they're being used for trafficking.

Law professor Eric Goldman has a thorough description of the problems with the bill.

what online services will be regulated other than Backpage? The press release accompanying the Senate bill draft references Backpage a half-dozen times. Is this law only about making sure a single company, Backpage, is dead dead dead? Or will the bill reach other online services? If so, who? The most likely answer is that this law potentially implicates every online service that deals with user-generated content, which would make this an unusually wide-ranging bill.

what about the SAVE Act, the law (sponsored by Rep. Wagner) that Congress passed in 2015 to kill Backpage? The bill’s press release doesn’t mention the SAVE Act once, even though it was designed to accomplish the same policy goals. Why not? Did Congress misjudge the policy efficacy of that law? Or perhaps it’s too early to judge the SAVE Act’s efficacy? A federal grand jury in Phoenix is considering indicting Backpage or its executives, and the odds are that the SAVE Act would be key ground for such an indictment. So perhaps Congress has already enacted all of the legislation it needs to kill Backpage…? If so, a new and major exclusion to Section 230 would not add any new policy benefits but would come with substantial policy costs.

does the elimination of a centralized online prostitution ad venue actually improve the situation for victims of sex trafficking? This is the fundamental policy objective of the bill, but I have yet to see any good evidence demonstrating this outcome. Maybe it’s so intuitive (shut down Backpage, victims are better) that members of Congress don’t expect to see any proof, but this is hardly intuitive to me. We’ve seen over and over again that anti-prostitution regulations redirect the demand for prostitution elsewhere. If this bill accomplishes its goal, where will that demand get redirected, and how will that affect victims? We’ve also seen many successful victim protection efforts by law enforcement using the public ads as leads/evidence. What will happen to those enforcement efforts, and what does that mean for the overall protection of victims?

what existing laws will be newly excluded from Section 230, and how will plaintiffs use those laws? I am extremely confident that none of the bill co-sponsors have comprehensively inventoried the existing state laws that will have tenable causes of action against online intermediaries once Section 230’s immunity is lifted. It could be zero laws (unlikely); it could be hundreds or thousands of new laws. Shouldn’t we model these effects before unleashing those laws?

I'd argue there are even bigger problems with the bill as well, focused on this: the end result will almost certainly be seriously counterproductive to the goal of ending trafficking. CDA 230 has two provisions that work together in unison: one that protects platforms from liability for actions of their users and a second one that is equally important (but often forgotten) that says that if a platform does moderate content, that moderation does not introduce new liability. The combination of these two provisions actually encourages platforms to monitor and police themselves, without adding a risk of new liability.

However, this new law completely undermines that. It includes a provision that says "knowing conduct" makes you liable for assisting, supporting or facilitating trafficking. And how might one "know" of such conduct? If you know how your platform is being used. Thus, the end result of this bill would be the exact opposite of what its sponsors are seeking. It will encourage platforms to turn a blind eye to what's happening on their platform, out of fear that reviewng or moderating content might be used as evidence of "knowledge." Yikes!

Even worse, this will undermine a bunch of ongoing projects that the tech industry has put together to help stop trafficking already. If you look at what programs are actually effective, they tend to involve tech companies actively working on solutions and information sharing. But, now, if a tech company works on one of those programs, that could be used as evidence by grandstanding state Attorneys General or trial lawyers as "evidence" of "knowledge" of their platforms facilitating trafficking! Why would any tech company continue working on these effective programs when the "thanks" they'll end up getting are a bunch of lawsuits?

And, we've already seen years of state AGs grandstanding on issues by blaming tech companies for things their users do, as well as hundreds, if not thousands, of frivolous lawsuits where private individuals and companies sue platforms over actions of their users, all trying to find holes in CDA 230. And this bill opens up a wide one. Just make some halfway credible claim that someone somehow engaged in trafficking uses the platform and voila. The liability for platforms is going to be amazing, and the end result is... what? Backpage has already shut down its adult section, and sex trafficking has just moved elsewhere. The bill doesn't target the actual perpetrators at all. It will just make them harder to find.

Tech companies who currently help catch traffickers will now be told not to do that out of a fear of liability. Platforms that already cut off traffickers from using the platform will now have the incentive to turn a blind eye (and certainly not to help law enforcement). And a ton of frivolous lawsuits will likely be filed. And it's all to "stop" Backpage -- a company that has already decided to stop accepting such ads.

Sex trafficking is a real and serious problem. But this weird sledge hammer approach directed at one particular company -- Backpage -- is misguided on so many levels. It doesn't provide the DOJ with any more tools than it already had to go after Backpage, if the company violated the law. It only provides more tools to state AGs and trial lawyers to bring frivolous lawsuits and fishing expeditions against tons of other companies, many of whom have actively helped to attack the problem of trafficking. And, the bill is designed in a way that encourages them to stop helping.

And make no mistake, those who speak up against this bill will be unfairly attacked with a broad brush, with claims that they're "supporting" trafficking by opposing this bill. But the opposite is true. This bill will not help stop trafficking. In all likelihood it will make the problem worse.

Filed Under: bob portman, cda 230, claire mccaskill, good samaritan, richard blumenthal, section 230, sex trafficking, trafficking
Companies: backpage

Congressperson's Sex Trafficking Bill Looks To Carve Holes In Section 230 Immunity

from the first-they-came-for-the-worst-of-the-worst... dept

Law prof Eric Goldman -- who's covered numerous internet-related cases over the years -- is sounding the alarm about a draft bill [PDF] circulating Congress which could do some very serious damage to the internet itself. The bill aims to undercut Section 230 protections in the name of preventing sex trafficking.

The draft bill is called the “No Immunity for Sex Traffickers Online Act of 2017.” It’s authored by Rep. Ann Wagner (R-Mo.). The bill would amend Section 230 in two main ways:

1) it would add a new statement to Section 230’s purpose: “to ensure vigorous enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking of children, including through the availability of a civil remedy for victims of sex trafficking of children”

2) it would exclude the following claims from Section 230’s immunity:

– “any State criminal statute relating to sexual exploitation of children or sex trafficking of children” from the immunity

– 18 USC 1595, which has a civil remedy for sex trafficking

– “any other Federal or State law (to the extent such law does not impose criminal penalties) relating to sexual exploitation of children or sex trafficking of children”

As Goldman points out, Wagner's bill is clearly aimed at Backpage. If it ever makes its way into law, it will arrive far too late to wield it against Backpage and its owners, but it could be used to initiate prosecutions against other site owners for content posted by their users.

Maybe Rep. Wagner was just waiting for a like-minded legislator to come along and help push some bad ideas towards the president's desk. The recent arrival of former California attorney general Kamala Harris (a newly-elected Senator) should ensure lousy, internet-damaging bills aren't limited to the House. It's a chance to make earlier complaints become debilitating statutes. Goldman notes the bill not only duplicates Rep. Wagner's previous human trafficking law (which was passed), but echoes a "Let's Blame Backpage!" letter sent to Congress back in 2013.

[I]n 2013, 47 state AGs (including California’s then-AG and now-Senator Kamala Harris) sent a letter to Congress complaining that Section 230 prevented them from squashing Backpage and requesting that Congress amend Section 230 to exclude all “federal *and state* crimes.” Congress never responded to the letter–until now. Consistent with the AGs’ request, Rep. Wagner’s bill would open up Section 230 to state crimes, but only if the crimes relate “to sexual exploitation of children or sex trafficking of children”–a smaller universe than the AGs’ request to open up *all* state crimes.

The same idea -- a "narrow" exception to Section 230 immunity -- has been floated as a way to tackle the revenge porn problem. It's almost always easier to locate and serve/prosecute site owners than it is to go after those actually violating laws. The problem for most prosecutors (and plaintiffs) is they're prevented from doing so by Section 230 immunity. This is the way it should be. The target of prosecution/litigation should be the person causing the harm or breaking the law, not the person(s) easier to locate and punish.

What proposals like this do -- if they become law -- is create small fractures in Section 230 protections. These will eventually become actual holes as prosecutors, politicians, and courts carve out more and more exceptions as the activity they're trying to prevent moves to other platforms either to escape scrutiny or because site owners and service providers are unwilling to host anything that might see them being held responsible for users' content.

The strict liability rule might run into First Amendment concerns, but we won’t know that until the court challenge. As we know, if there’s not a single home for them, online prostitution ads migrate into other topics. So any classified ad or message board service–even those that are completely free–would need to prescreen most/all user postings to screen out the possibly-small percentage of those postings that violate the new law. The overall cost imposition on publishers, and associated chilling effect, attributable to the law would be huge.

The most serious problem Goldman sees -- and his reason for even bothering to discuss a draft bill -- is this is the sort of thing that could actually pass in the current political climate. The California AG who engaged in a personal vendetta against Backpage is now a US senator. The author of this bill is a Republican sitting in a Republican-controlled house. The bill targets child sex trafficking, which is of course the worst kind of sex trafficking. And who's going to stand up in the House or Senate and claim they're against preventing the trafficking of children for sex? Clearly no one wants to take that public stance, even if they know the bill would do harm to the First Amendment while having almost no effect on eliminating sex trafficking.

Then there's the internet service providers themselves. As Goldman notes, they weren't exactly rallying around Backpage as politicians and prosecutors used it for a punching bag and a useful analogue for everything that's wrong with the internet.

[I]t’s unclear that the major Internet companies will oppose the bill. They’ve frequently stayed on the sidelines during Backpage’s battles, content to let Backpage carry the water for everyone. With Backpage out of the industry, they no longer get the free ride. This draft bill will force a decision: acquiesce or fight. I don’t know what they will choose.

Small exceptions become huge problems. Mission creep, combined with most politicians' innate ability to make bad things even worse, means this proposed exception to Section 230 protections won't stay narrow and limited for long. Fortunately, the bill's a long way off from a president's signature. But the opposition to legislative ideas like this needs to remain loud and constant.

Filed Under: ann wagner, intermediary liability, kamala harris, moral panic, section 230, sex trafficking
Companies: backpage

Prosecutors And Anti-Sex Trafficking Advocates Aren't Happy With The Government's Treatment Of Backpage

from the thanks-for-making-everything-worse dept

Kamala Harris -- former California Attorney General and current US Senator -- may have failed in her attempt to take Backpage down, but her dubious legacy lives on. The same day the US Supreme Court denied certification to an appeal of a decision in favor of Backpage and its Section 230 protections, Backpage shut down its adult ads rather than face additional prosecution/persecution from misguided politicians like Harris.

While all those who went after Backpage pat themselves on the back for making NO DIFFERENCE WHATSOEVER in the battle against sex traffickers, those involved in the day-to-day work of tracking down sex traffickers down aren't nearly as thrilled.

As has been noted here on multiple occasions, shutting down a service used by some for illegal activity just buries the illegal activity even deeper underground. Backpage's adult ad closure means traffickers will be moving to other venues -- ones not being actively watched by law enforcement, no doubt including sites they're not even aware of. As for sex workers who used Backpage to advertise adult services, they've simply moved their ads to other sections of the site. So, all the grandstanding has done nothing to harm sex traffickers. It has done a bit of damage to sex workers. But it's caused the most harm to law enforcement.

David Meyer Lindenberg of Fault Lines points out that those actually involved with the fight against sex trafficking are angered by the vindictive prosecution of Backpage. It may have helped net Kamala Harris a new job where she can screw things up at the federal level, but it's done nothing to combat trafficking.

He highlights a handful of quotes from a Miami Herald article on the Backpage adult ad shutdown.

“It would be a mistake for investigators or prosecutors to assume that trafficking will decrease because of the shutdown of Backpage’s escort ads,” said Jane Anderson, a former Miami-Dade assistant state attorney who now works for AEquitas, an anti-human trafficking resource organization for prosecutors.

“In fact, investigators and prosecutors must now be even more proactive and resourceful to uncover trafficking that is occurring on lesser known websites, including other areas of Backpage.”

[...]

“It’s a symbolic crusade,” said Kimberly Mehlman-Orozco, an author and criminology professor at George Mason University who serves an expert witness in human-trafficking cases. “They’re trying to get some accolades and look like the heroes. It’s having a negative effect on the ability for law enforcement to rescue victims and prosecute offenders. The best we can do is facilitate the capabilities of police to investigate.”

That's the damage done whether or not you believe Backpage was used by sex traffickers. Realistic stats on sex trafficking are almost nonexistent and almost any law enforcement sweep designed to haul in traffickers just nets a bunch of consenting adults. What's never found is anything approaching the horror stories used to turn hysteria into perpetual funding -- the theory that thousands of teens are being forced to perform sexual acts by traffickers and (most ridiculously) shuttled around the country to serve attendees of major events ranging from the Super Bowl to local stock shows.

As Lindenberg notes, the only people celebrating this amazingly-hollow victory are those who abused their power to target a site over third-party content.

It’s notable how few people have come forward to defend what happened. The most vocal messages of support came from the participants themselves, who made a point of congratulating each other for their role in bringing it about. And when Florida prosecutors and the staff of Reason magazine agree that an act of government was ill-advised, you can be pretty sure it wasn’t the greatest idea ever.

That's how government power works. It's rarely effective, and it almost always results in unintended losses.

Filed Under: cda 230, human trafficking, kamala harris, law enforcement, prosecutors, section 230, sex trafficking
Companies: backpage

Backpage Kills Adult Ads On The Same Day Supreme Court Backed Its Legal Protections, Due To Grandstanding Senators

from the someone-teach-the-senate-the-law? dept

A few years back, we detailed how ongoing grandstanding and toothless legal threats finally forced Craigslist to shut down its "adult services" section. None of that did anything to stop prostitution or human trafficking online. It just moved to other sites -- which was particularly ridiculous, given that Craigslist had been proactive in working with law enforcement to help them track down the actual perpetrators of crimes via the site. And, the illegal behavior just moved on to somewhere else -- as did the ridiculous grandstanding. The main target since Craigslist shut down its services: Backpage.com, the Craigslist-alike site that spun off from Village Voice Media. And now, after an even more intense grandstanding and legal campaign, Backpage has also been pressured to shut down its adult section. If you go to it now, you'll see this instead: And here's the craziest part. This happened on the same day the Supreme Court basically said Backpage is legal and the legal claims against it are bogus. But the law is apparently meaningless in the face of a pair of grandstanding Senators who want their names in the headlines, pretending they care about human trafficking, while actually making the problems worse.

Last May, we wrote about an excellent 1st Circuit appeals court victory for Backpage.com, which (like nearly every other court before them) found that the site was clearly protected by Section 230 of the Communications Decency Act. As we've discussed many, many times, there are a number of people out there who would like to ignore the fact that while some users of Backpage may be violating the law to engage in prostitution, the proper response is to go after those actually breaking the law, and not the platform they're using. That's the very heart of Section 230, and it's exactly what many, many courts have realized. The case we wrote about last May (and also wrote about when Backpage prevailed at the district court level the previous May) involved three clear victims: women who were forced into selling sex as teenage runaways. Their situation is undoubtedly awful -- but it was the fault of those who exploited and abused them, and not the online service they happened to use.

On Monday, the Supreme Court effectively put its stamp of approval on the 1st Circuit appeals court ruling by denying the plaintiff's petition to hear an appeal on that ruling. While it's not quite the same as saying that the Supreme Court fully endorsed the opinion of the 1st Circuit saying that Section 230 clearly protects Backpage from being blamed for how people use the site, it certainly suggests that the court didn't see any major problems with the ruling.

But... there's just something about Backpage that makes politicians want to stupidly and misleadingly grandstand. Just hours after the Supreme Court effectively blessed the 1st Circuit ruling saying Backpage hadn't broken the law, Senator Claire McCaskill released a report (with Senator Rob Portman) that blasts Backpage for "knowing facilitation of online sex trafficking." This is in advance of a grandstanding Senate hearing that McCaskill/Portman have prepared to parade out the executives of Backpage to yell at them for facilitating sex trafficking, even just as the Supreme Court has basically said this entire line of argument is completely bogus.

The report is a joke. The crux of the report is that, via subpoena, the Senate staffers were able to determine that Backpage edits and or bans certain words that indicate an ad is for prostitution. Let me repeat that: the Senate is mainly annoyed that Backpage proactively looks for and blocks situations where it appears that the ads may be for prostitution -- especially involving children. Yet, the Senate investigators twist this to make it sound like a bad thing.

Over time, Backpage reprogrammed its electronic filters to reject an ad in its entirety if it contained certain egregious words suggestive of sex trafficking. But the company implemented this change by coaching its customers on how to post “clean” ads for illegal transactions. When a user attempted to post an ad with a forbidden word, the user would receive an error message identifying the problematic word choice to “help” the user, as Ferrer put it. For example, in 2012, a user advertising sex with a “teen” would get the error message: “Sorry, ‘teen’ is a banned term.” Through simply redrafting the ad, the user would be permitted to post a sanitized version.

I'm not entirely clear what they're complaining about here. You could also quite clearly see this as Backpage letting users know that it is not a place that should be used for sex trafficking, because it clearly alerts them to things that they don't want on the site. But the Senate staffers seem to have intentionally spun this to appear in the absolute worst light.

On top of that, Section 230 is again quite clear that any effort a platform does take to moderate stuff doesn't change the fact that a site is protected from liability. And that's to encourage exactly the type of behavior that Backpage is already doing: which is choosing voluntarily to block certain types of ads that they don't want. Now, I'm sure some will argue, as the Senate report tries to say, that because Backpage then allows another ad without the "banned" words through, that it's not stopping the underlying activity, but that's basically mandating that any online platform have incredibly adaptive and complex filters to make sure that anyone who tries to get around their filters cannot do so. That's a very dangerous precedent, and would basically make it impossible for any online service to exist, without being massive.

The report argues that the "editing" of posts by Backpage takes away 230 immunity:

Backpage and its officers have successfully invoked Section 230 in at least two other cases to avoid criminal or civil responsibility for activities on the site. In neither case, however, did the court have before it evidence that Backpage had moved beyond passive publication of third-party content to editing content to conceal illegality.

The argument here rests on the ruling in the infamous Roommates.com case from nearly a decade ago -- which remains the biggest case where a Section 230 defense failed. But that's a very different situation. Roommates.com failed because the Roommates system itself was asking questions deemed to be illegal under housing law (about racial preferences and such). That was part of the site that was fully created and controlled by Roommates.com. The difference here is that while Backpage may be running some of its posts through a filter, that's to moderate the content to remove descriptions of illegal sex trafficking or illegal prostitution. In other words, what Backpage is doing is actually moderating content, which is explicitly allowed and encouraged by the "Good Samirtan clause" of CDA 230, found in section (c). That part of the law says that the immunity applies even for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." It seems quite clear that Backpage editing posts to remove such content falls squarely into that bucket.

The report is also strange in that it uses Backpage's own helpfulness to law enforcement against it. It highlights how law enforcement regularly gets reports and details of child trafficking because of Backpage:

According to the latest report from NCMEC, 73% of the suspected child trafficking reports it receives from the public involve Backpage. According to the Massachusetts Attorney General, “[t]he vast majority of prosecutions for sex trafficking now involve online advertising, and most of those advertisements appear on Backpage."

In other words, one of the best tools out there for finding and stopping sex trafficking is... Backpage.com. And the Senators response is to blame Backpage and make them legally liable? How does that make any sense at all? Now that Backpage has shut down those ads, they'll scatter elsewhere. Sex trafficking won't stop and it will be harder for law enforcement to track down and find actual perpetrators or save actual victims. Let's be clear: Senators McCaskill and Portman, in an effort to get their names in the headlines, have just made sex trafficking easier, by making law enforcement's job harder.

The report also makes a big deal out of the fact that Backpage's execs know that the site is used for trafficking and prostitution, but, again, so what? That's like the same claims that the legacy entertainment industry made about YouTube. Just because you know that a site can and sometimes is used for illegal behavior does not automatically make the site liable for that illegal activity. That's quite clear under Section 230, yet totally ignored by this report.

The Supreme Court got this right... while Senators Claire McCaskill and Rob Portman appear to be yet another set of politicians who are grandstanding by blaming a platform, rather than doing anything that will actually help stop sex trafficking. And the end result is that Backpage has shuttered that section. This won't stop or even diminish sex trafficking and prostitution online. Just as it moved from Craigslist to Backpage, it will continue to move elsewhere -- and that will probably be to a site that is even less willing to work with law enforcement to help track down and stop real illegal behavior. Similarly, this witchhunt has taught any new platform that any attempt to diminish the blatant use for sex trafficking and prostitution will be twisted to pretend that it's just trying to "hide" that activity.

This is a travesty. McCaskill and Portman will get their headlines, and sex trafficking will continue -- it will just be harder to help actual victims.

Filed Under: cda 230, claire mccaskill, grandstanding, rob portman, section 230, sex trafficking, supreme court
Companies: backpage

Merry Christmas: Kamala Harris Files Brand New Criminal Charges Against Backpage Execs After Last Ones Were Tossed Out

from the you-already-got-elected dept

Never let it be said that Kamala Harris gives up after being told her totally bogus legal crusade is totally bogus. She's now filed brand new charges against the execs who run Backpage.com -- despite having the very same lawsuit thrown out a few weeks ago. As you may recall, for years, Harris (and some other state Attorneys General) have been crusading against the classified website Backpage, because some of its users use it to post illegal prostitution ads. As has been explained dozens of times, the proper thing to do in those situations is to use that information to go after those actually breaking the law. Instead, Harris and others have whined about their desire to put Backpage execs in jail instead (which won't actually stop any illegal activity -- since it will just move to another site).

Let's be crystal clear here: California Attorney General Kamala Harris (who in just a few weeks will become a US Senator) knows that she has no legal basis for arresting the execs behind Backpage. How do we know she knows this? Because three years ago she signed a letter whining about how she had no legal authority to arrest Backpage because it's (rightly) protected by Section 230 of the CDA, saying that you can't blame a site for the actions of its users. So it did seem weird, back in October, when Harris -- along with Texas Attorney General Ken Paxton -- decided to arrest Backpage's execs anyway, and charge them with "pimping." As we note at the time, the criminal complaint against them was laughable and almost completely bogus. Not only was Backpage protected by CDA 230, but the actual investigation into Backpage undercut the case they were bringing, because it showed a willingness by Backpage to delete prostitution ads when brought to their attention by law enforcement, and to block those users from reposting.

So it was no surprise at all when the court quickly tossed all the charges against the execs, and told Harris to take it up with Congress... which, of course, is where she'll be in a month. However, not content to just try to change the laws, Harris has chosen to file brand new charges against the three execs, Carl Ferrer, Michael Lacy, and James Larkin. The press release from Harris claims that the reason for the new charges is that she's "uncovered new evidence" but that's a load of hogwash.

The new charges still include bogus "pimping" charges, but now also have a bunch of "money laundering" charges as well. And that sounds scary, but once again the details look to be complete bullshit. Basically, the "money laundering" is that Backpage set up a separate operation to handle billing, after American Express (under pressure from grandstanding politicians) said it no longer wanted to work with Backpage. So, the lawsuit argues, Backpage set up a sort of shell corporation to accept AmEx charges, without it looking like they were coming from Backpage. But in order for it to be money laundering, it has to involve a situation where the money itself is coming from illegal activity, and over and over and over and over again the courts have said that Backpage's activity is not illegal. In fact, that's what a court told Harris just two weeks ago.

This is a frightening abuse of power to harass a company just because Harris doesn't like how people use that company, and because she and her staff can't be bothered to do the actual law enforcement work of using that information to go after the actual lawbreakers. It's shameful.

Filed Under: california, carl ferrer, cda 230, james larkin, kamala harris, michael lacy, money laundering, pimping, section 230
Companies: backpage, backpage.com