Judge Tosses Charges Against Backpage Execs, Tells Kamala Harris To Take It Up With Congress

from the SENATOR-KAMALA-HARRIS...-thanks-2016 dept

California judge Michael Bowman hinted -- with a tentative ruling issued last month -- that he didn't think much of Attorney General (now US Senator)[ ಠ_ಠ ] Kamala Harris' grandstanding, misguided, First Amendment-damaging attempt to prosecute Backpage executives for pimping.

Not only did Harris pretend Section 230 immunization didn't exist, she actively fought to have the executives prosecuted for the actions of others. The twisted legal rationale deployed by Harris didn't win over Judge Bowman, who noted Backpage had, at best, republished third-party content. If Harris wanted site owners to be punished for third-party content, she would have to ask the nation's legislators to fix it.

As stated above, Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.

[Once again, Kamala Harris is NOW A US SENATOR.]

The judge rolled back a little of his pre-judgment, asking the state of California for more input before making his final decision. Harris' office took this opportunity to dump another 70+ pages of "damning" evidence into the judge's lap -- mostly internal emails that detailed how Backpage handled the aggregation of third-party content at two affiliated sites.

This wasn't persuasive. Judge Bowman stands by his original decision, leaving the above paragraph intact except for added emphasis on the last sentence. The court isn't here to fix legislation Kamala Harris doesn't like. That's up to Congress, an entity Kamala Harris is now unfortunately a part of.

The decision [PDF] reiterates Bowman's points: that what Harris is seeking to prosecute is actually protected by Section 230 immunity.

After considering the state's new evidence, Bowman concluded in a December 9 decision that "defendants have, at most, republished material that was created by a third party." The judge pointed out that California's declaration in support of the defendants' arrest warrant even stated that EvilEmpire.com ads were "essentially identical" to their Backpage.com counterparts. "This demonstrates republication, not content creation," and "republication is entitled to immunity under the CDA," wrote Bowman.

Judge Bowman did take a little time to call out Harris' disingenuous prosecutorial claims, focusing on the state's assertion, that moderation which removed illegal content was somehow an illegal act.

Assuming that the People's assertion is true; that the ad went from expressing intent to advertise prostitution to express a desire to 'date,' the People are essentially complaining that Backpage staff scrubbed the original ad, removing any hint of illegality. If this was the alleged content 'manipulation,' the content was modified from being illegal to legal. Surely the AG is not seeking to hold Defendants liable for posting a legal ad; this behavior is exactly the type of 'good Samaritan' behavior that the CDA encourages through the grant of immunity.

With that, the criminal charges against the Backpage executives have been vacated and their bond nullified. And the court helpfully reaffirms Section 230 protections at a time where they've been under increasing attack in California courtrooms.

Filed Under: congress, free speech, kamala harris, section 230
Companies: backpage

Judge Leaning Strongly Towards Tossing Pimping Charges Against Backpage Executives

from the when-all-you-have-is-a-grandstand... dept

Because there doesn't seem to be a politician out there that can interact with Backpages without grandstanding, the attorneys general of two states -- California's Kamala Harris and Texas' Ken Paxton -- combined forces to have company executives arrested on pimping charges.

The criminal complaint somehow tried to portray the fees charged by Backpage as profiting from prostitution. While it should have been explicitly clear Backpages was immune from prosecution thanks to Section 230, the two AGs decided to close their eyes, ears, and brains and press forward.

It's likely nothing will come of this misguided prosecution -- one that appeared to be instigated almost solely for the press it would generate, rather than for its legal merits. The California court handling the case has pretty much thrown the whole thing out.

It's a tentative ruling that doesn't have the full force of a published opinion behind it, but it does give the solid impression that any dreams of being able to prosecute site owners for third-party content will have to be taken to Congress, rather than local courts -- though, the judge has said he'll allow the parties to present more arguments before making a final decision. As it stands now, Section 230 prevents the sort of thing these two AGs are pursuing.

From the opinion [PDF]:

Backpage’s decision to charge money to allow a third party to post content, as well as any decisions regarding posting rules, search engines and information on how a user can increase ad visibility are all traditional publishing decisions and are generally immunized under the CDA. In short, the victimization resulted from the third party’s placement of the ad, not because Backpage profiting from the ad placement.

This does some pretty severe damage the state's argument that charging for ads means profiting from sex trafficking. The last paragraph of the ruling similarly upholds Backpage's Section 230 immunity, even as it moved content from site to site.

Here, the People allege that Defendants “created” content and are not entitled to immunity. However, on the face of the allegations, Defendants have, at most, republished material that was created by a third party. The People allege that the content was taken from ads placed by Backpage Escort users and posted onto EvilEmpire.com. The declaration in support of Defendants’ arrest warrant states that the ads placed in EvilEmpire.com were “essentially identical” to the ads placed by the third party on Backpage.com and that EvilEmpire was an “additional platform for Backpage Escort ads.” This demonstrates republication, not content creation. Republication is entitled to immunity under the CDA. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63.)

To make the charges stick, the state would have to prove that the Backpage actually participated in sex trafficking -- something no one has even alleged at this point. Instead, those fighting Backpage have simply chosen to attack the most visible target, rather than those posting ads and/or exploiting underage prostitutes.

The ruling says there's only one way to have the supposed immunity "problem" addressed and that's to push Congress into doing something about it.

As stated above, Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.

No one should be in any hurry for Congress to take another look at Section 230 immunity. Right now, it does a very solid job protecting websites and social media platforms from the speech and actions of their users. Without it, the internet would be a much smaller, more-locked down venue for communication and nowhere near as useful for disseminating information. Anything Congress would do at this point would only harm it.

Politicians and prosecutors need to stop taking the easy route and go after those actually breaking the law. If cops want to track down sex traffickers and haul them to court, fantastic. But it does no one any good to pursue baseless pimping charges against site owners, rather than those actually engaged in criminal activity.

Filed Under: cda 230, intermediary liability, kamala harris, ken paxton, pimping, section 230
Companies: backpage

Details Of Charges Against Backpage Execs For 'Pimping' Look Totally Bogus

from the you-can't-do-that dept

Backpage.com has been the target of lots of moralizing, grandstanding law enforcement types, who absolutely hate the fact that there's a classified site out there where some users use it for prostitution (I know that some of the comments will discuss the question of whether or not prostitution should even be a crime, but right now it is, and so this article won't focus on that other discussion). As we've noted time and time again, it's bizarre that law enforcement folks keep blaming the platforms, when those platforms are actually really useful for law enforcement to track down, arrest, prosecute and convict people actually breaking the law. Still, the grandstanding forced Craigslist to completely shut down its adult section, and most of that traffic moved over to Backpage.

And now, the CEO of Backpage, Carl Ferrer, has been arrested in Texas for "pimping," with both Texas Attorney General Ken Paxton and California Attorney General Kamala Harris pushing out grandstanding press releases to talk about how tough on prostitution and pimping they are.

There's just one big problem in all of this: the charges are almost certainly completely bogus, and Harris and Paxton are flat out ignoring federal law on this matter. Specifically, they're ignoring the law we talk about all the time: Section 230 of the Communications Decency Act. As we've noted over and over again, CDA 230 says that internet platforms are not liable for the content created by users. There's an exception for federal criminal acts, but not for states. Various state Attorneys General have been whining about this for years, and demanding Section 230 get a new exception just for them, but that hasn't happened. So Harris and Paxton clearly know about Section 230, and clearly know that they're just ignoring the law. They apparently don't care. They're either too focused on the publicity grandstanding value of pretending like they're "tough on crime," or they're hoping that by presenting emotional stories, they'll win over judges and convince them to ignore Section 230.

Harris is currently running for the US Senate, so the timing of this is particularly interesting. Paxtron isn't up for reelection for another two years, but is currently enmeshed in a securities fraud scandal in Texas, facing criminal charges in Texas and civil charges from the SEC, so perhaps he's looking for something to distract the press from that.

But the simple fact is this arrest is almost certainly bogus. The criminal complaint is really light on details, repeatedly claiming that Ferrer and two other Backpage execs (Michael Lacey and James Larkin) "knew" about specific underage victims being trafficked on the site, but presents no evidence to support that. The much more interesting read is the declaration in support of the arrest warrant for the three men, signed by California special agent Brian Fichtner.

While it does note that there is a "confidential attachment" to this declaration, what's in the declaration itself doesn't come anywhere close to being enough information to get around the protections of Section 230 -- and, in some cases, actively seems to work against the case, even as the declaration seems to think otherwise. I kept waiting for the "smoking gun" in the declaration, but instead, it appears that Backpage not only does go above and beyond what's required by the law, but when contacted by law enforcement was quick to take down specific ads they called out.

The declaration notes that the California DOJ contacted people being advertised on Backpage, and met with some of the individuals, and it always resulted in offers of sex for money. That may be true, but again, Section 230 makes it clear that the criminal act is the prostitution, not the fact that they used Backpage for ads. Then, there's this weird situation where Fichtner talks about creating some ads himself, which seems to really undermine the DOJ's overall argument:

In March 2015, I created two undercover advertisements on the website BACKPAGE. One of the ads was posted in the "Escort" section and offered the service of adult companionship for money, the other ad was for the sale of a sofa and was posted in the "buy, sell, trade" section of BACKPAGE. The minimum fee to post the "Escort" ad was $10.00. Posting the sofa was free of charge. BACKPAGE also offers the ability to upgrade an ad for an additional fee. I upgraded both ads, allowing the ad to be automatically reposted to the top of the page several times during the day. The total cost of the "Escort" ad with the upgrade was $111.20. The total cost of the sofa ad with the' same upgrade was $1.22. Both of the ads were posted using the same undercover cell phone number. DOJ Special Agent (SA) Tera Mackey monitored the undercover cell phone. Within minutes of the "Escort" ad going live, SA Mackey began receiving calls and texts. SA Mackey told me she received hundreds of inquiries for the "Escort" ad, but received only one inquiry for the sofa. SA Mackey said all the calls and texts related to the "Escort" ad were requests for sexual acts in exchange for money.

So? The fact that the escort ads are more popular than the sofa ads isn't exactly news -- nor is the fact that they're more expensive. Basic economics says the more popular ads should cost more, right? But none of this means that Backpage is guilty of anything. Again, so much of the affidavit seems to basically be based on this argument: lots of prostitution happens on Backpage, therefore Backpage is guilty. But that's not what the law says. The law is quite clear that Backpage has to actually be much, much more involved in the prostitution than just providing a platform that prostitutes and pimps use -- even if Backpage knows that some (or even a lot) of its ads are for prostitution.

And then there's the next bit, which seems to totally undermine the case against Backpage and its execs:

After letting the undercover ads run for approximately (ten )10 days, I decided to call BACKPAGE and ask them to remove it. My goal was to learn the process of removing an "Escort" ad from BACKPAGE that law enforcement identifies as an ad for prostitution. My first call was to Liz McDougal, BACKPAGE legal counsel, but I received her voicemail. My next call was to FERRER. When FERRER answered the phone, I identified myself as law enforcement. I told him that I had identified a prostitution ad in the "Escort" section of BACKPAGE (I did not tell FERRER that I posted the ad) and that I was seeking a way to remove the ad. FERRER initially directed me to report the ad by email to abuse@BACKPAGE but then he asked for the name of the ad. I provided him with the Post ID number for the ad. It was apparent that FERRER was looking up the "Escort" ad on his computer because I could hear him typing as I provided him with the Post ID number. He explained that if I report the ad to abuse@BACKPAGE, I should include my phone number in order to confirm that I was law enforcement. He mentioned that they have been "spoofed" by individuals claiming to be law enforcement when they were not.

FERRER told me he located a second ad from the same "user," but it was for a "sofa" and did not appear to be illegal. FERRER said he would personally report the ad and "lock it out." He said it would be removed by the end of the day. A short time later, I searched the website to try and locate the "Escort" ad and the sofa ad, but both ads had been removed. I tried to repost the "Escort" ad, but Backapge.com did not allow it to go through.

Uh, so... how is this evidence of a crime? It seems like the exact opposite. It appears that when directly informed about illegal ads, the company takes them seriously, deletes the ads, closes accounts and blocks reposting of the same ads. That's exactly the kind of thing that CDA 230 is supposed to encourage. By making platforms protected from liability for the actions of their users, the law also says that any efforts at monitoring/filtering/blocking cannot be used to argue for liability on the content that was not blocked. Yet that's exactly what Kamala Harris and Brian Fichtner do here. It's as if they don't know or don't care about the law!

And then Fichtner finds more nefarious filtering that further undermines his case (and, again, which 230 says cannot be used against Backpage):

In May 2015, I created another BACKPAGE "Escort" ad with the goal of trying to post an ad containing sexual verbiage indicative of a prostitution ad. I used the words "cum" and "quickie" in the ad, but when I tried to post it, I received a message that told me those words were "forbidden in this category." I had to change the words to "come" and "quick session" in order for the ad to be accepted.

BACKPAGE may have restricted the use of the sexual verbiage in my undercover ad, but when I conducted a random search of the BACKPAGE escort section, I viewed numerous "Escort" ads that contained photos and videos that depicted full nudity. Many of these nude ads were simulating and/or performing sexual acts. BACKPAGE states they moderate their ads and implement a policy against posting obscene or lewd and lascivious graphics and photographs, however, my personal observations have indicated otherwise.

Again, this is the exact thing that CDA 230(c)(2)(A) is specifically designed to prevent. It says that "No provider or user of an interactive computer service shall be held liable on account of 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." I'm guessing that prosecutors will argue that these efforts are not done in "good faith," but that seems like a really difficult hill to climb.

And, of course, it's not like this is the first time Backpage has gone to court. All the way back in 2011 a court said that Backpage was protected by Section 230. Then in 2015, it won a big case in Massachusetts thanks to Section 230. That case was appealed and the appeals court also gave Backpage a solid 230 win. And then, in a different case, where Cook County Illinois sheriff Thomas Dart strong-armed credit card companies into no longer doing business with Backpage, the 7th Circuit appeals court slammed him for doing so, pointing out that it was a clear 1st Amendment violation, and also citing Section 230.

So far, the only real win against Backpage was an odd ruling from last year in Washington state court, which basically argued that a case shouldn't be dismissed outright, but could proceed in spite of 230.

Bizarrely, this new criminal case against Backpage's execs uses the illegal act by Sheriff Dart to its advantage.

In July 2015, major credit cards stopped processing BACKPAGE transactions and BACKPAGE began to allow users to post Adult ads for free. Nonetheless, BACKPAGE has continued to collect fees for promoted or sponsored ads and created complex payment processing procedures to avoid detection from financial institutions.

Note how the document conveniently leaves out the fact of why they stopped processing, and how that was later found to be unconstitutional? Also, check out the "complex payment processing procedures to avoid detection from financial institutions" line. You know what that was? It was Bitcoin. That's it. After Dart illegally pressured credit cards into no longer working with Backpage, they started allowing people to pay with Bitcoin, because that was basically the only option left to stay in business. To paint that as some sort of nefarious attempt to "avoid detection" is ludicrous.

The declaration also involves interviews with various users of the site, and even then, some of them work against the case, including one underage user of the site who flat out says that it's not Backpage's fault, since they have no idea how old she is:

I asked A.C. if she knew of any policy restrictions for advertising on BACKPAGE. A.C. said she knew there was a restriction about posting adult ads on their website. I asked if she ever encountered a problem posting in the adult section on BACKPAGE as a minor. She said, "Well no, because how are they supposed to know I'm underage?"

And, again, that's the very point of CDA 230. Platforms have no way of knowing such details and any attempt to hold them liable for not knowing what they couldn't actually know would be ridiculous and crippling for basically every internet platform (including our own).

This lawsuit is bad news. It should almost certainly be tossed out, but it appears Harris is more focused on using the publicity to move up a notch to her next job. Her grandstanding press release is basically completely ridiculous:

“Raking in millions of dollars from the trafficking and exploitation of vulnerable victims is outrageous, despicable and illegal,” said Attorney General Harris. “Backpage and its executives purposefully and unlawfully designed Backpage to be the world’s top online brothel. Thank you to the California Department of Justice Special Agents, investigators, attorneys, and our partners in law enforcement who have worked tirelessly to bring the operators of this online brothel to justice and protect thousands of victims of trafficking.”

That's ridiculous. First, they didn't design it that way. The fact is that various State AGs have harassed lots of other sites into shutting down and had all the traffic flow to Backpage. So perhaps she should be arresting herself for promoting Backpage to this position. Also, that history should show that this won't do a damn thing to "protect thousands of victims of trafficking." They'll just move on to the next site.

If Harris really wanted to protect victims of human trafficking she'd go after the people actually doing the trafficking. And you know the best way to find them? Maybe to use Backpage as a tool to track them down. But killing Backpage will just make that harder, allowing traffickers to move on to other venues that may be a lot less willing to cooperate with law enforcement.

I know that there will be some people who will jump in on the comments and argue that because so many ads on Backpage were clearly for prostitution that Backpage must be guilty. But that's not how the law works, and it's not how the law should work. You blame the people actually doing the crime, not the people who made the tools they use. But I guess when Kamala Harris and Ken Paxton want to grandstand, it's easier to go after the internet companies than actual human traffickers.

Filed Under: carl ferrer, cda 230, grandstanding, james larkin, kamala harris, ken paxtron, michael lacey, prostitution, section 230
Companies: backpage

Appeals Court Issues Fantastic 1st Amendment Ruling Against Censorious Sheriff Thomas Dart In His Crusade Against The Internet

from the go-away dept

We've written about Cook County Sheriff Thomas Dart and his desire to censor the internet for a few years now. Back in 2009, he sued Craigslist because he claimed it was "the single largest source of prostitution in the nation." As we noted at the time, Craigslist was just a platform, and suing it made no sense at all -- especially given that the company was more than willing to cooperate closely with law enforcement and help them track down people who were breaking the law online. In other words, whereas a sheriff who was actually interested in stopping law breaking might embrace the site and work with it to track down law breakers, Dart chose to sue the toolmaker. That lawsuit failed miserably, but Sheriff Dart never gave up his quixotic quest to blame internet companies for prostitution.

Over the past few years, Backpage.com has taken over the boogeyman reputation previously held by Craigslist when it comes to online prostitution. Back in July of this year, Dart proudly announced that he had scared Visa and Mastercard out of working with Backpage after he sent them a misleading letter effectively threatening them if they did not stop working with Backpage. Backpage quickly sued Dart and within weeks received a temporary restraining order, with the court wasting no time claiming that Dart's actions in getting Visa and Mastercard to stop doing business with Backpage was unconstitutional prior restraint. However, the court later appeared to change its mind and refused to issue an injunction, saying that while Dart's letter could be construed as a threat, it wasn't censorship since he had no legal authority over the payment companies.

Backpage quickly appealed to the Seventh Circuit appeals court -- which has now absolutely trashed Dart in a decision written by Judge Richard Posner. The entire ruling is well worth reading, but here are a few excerpts. Posner does not find the lower court's reasoning convincing at all, quoting Okwedy v. Molinari to explain why:

“The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive … . What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

Posner is well aware of Dart's previous failed attempt to sue Craigslist and notes the obvious intention of the letter to payment companies:

The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers. The analogy is to killing a person by cutting off his oxygen supply rather than by shooting him. Still, if all the sheriff were doing to crush Backpage was done in his capacity as a private citizen rather than as a government official (and a powerful government official at that), he would be within his rights. But he is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment unless there is no constitutionally protected speech in the ads on Backpage’s website—and no one is claiming that. The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands....

Central to Backpage’s case is a letter of June 29 of this year that Sheriff Dart sent both to MasterCard’s CEO and Board of Directors and to the corresponding personnel of Visa. The letter is on stationery captioned “Office of the Sheriff,” and begins: “As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage. com.” Notice that he is sheriff first, father and citizen second; notice his use of the legal term “cease and desist”; notice that he calls MasterCard “your institution,” implying that the same letter is going to other “institutions”—namely other credit card companies—in other words that he is organizing a boycott. And notice that he doesn’t demand that “your institution” refuse to allow “your credit cards” to be used to pay just for ads on Backpage’s website that promote illegal products or services—he demands that “your institution” cease and desist from placing any ads “on websites like Backpage.com” (and a fortiori on Backpage’s own website) even though “adult” ads are only one of eleven types of classified ad published on the website. Visa and MasterCard got the message and cut all their ties to Backpage.

The letter goes on to state that “it has become increasingly indefensible for any corporation to continue to willfully play a central role in an industry that reaps its cash from the victimization of women and girls across the world.” The implication, given whom the letter is addressed to, is that credit card companies, such as MasterCard and Visa, “willfully play a central role” in a criminal activity (emphases added)—so they had better stop! Indeed, the letter goes on to say, those companies are “key” to the “growth” of sex trafficking in the United States. (Actually, as explained in an amicus curiae brief filed by the Cato Institute, Reason Foundation, and DKT Liberty Project, citing voluminous governmental and academic studies, there are no reliable statistics on which Sheriff Dart could base a judgment that sex trafficking has been increasing in the United States.) He is intimating that two of the world’s largest credit card companies may be criminal accomplices.

“Financial institutions,” the letter continues, “have the legal duty to file ‘Suspicious Activity Reports’ to authorities in cases of human trafficking and sexual exploitation of minors.” The letter cites the federal money-laundering statute, 18 U.S.C. § 1956, thereby intimating that the credit card companies could be prosecuted for processing payments made by purchasers of the ads on Backpage that promote unlawful sexual activity, such as prostitution. And “make no mistake,” the letter thunders: “Your [credit] cards have and will continue to be used to buy ads that sell children for sex on sites like Backpage.com. … The use of credit cards in this violent industry implies an undeserved credibility and sense of normalcy to such illicit transactions and only serves to increase demand.” And then, Posner notes, Dart makes his threat pretty damn clear:

And here’s the kicker: “Within the next week, please provide me with contact information for an individual within your organization that I can work with [harass, pester] on this issue.” The “I” is Sheriff Dart, not private citizen Dart— the letter was signed by “Thomas Dart, Cook County Sheriff.” And the letter was not merely an expression of Sheriff Dart’s opinion. It was designed to compel the credit card companies to act by inserting Dart into the discussion; he’ll be chatting them up. Further insight into the purpose and likely effect of such a letter is provided by a strategy memo written by a member of the sheriff’s staff in advance of the letter. The memo suggested approaching the credit card companies (whether by phone, mail, email, or a visit in person) with threats in the form of “reminders” of “their own potential liability for allowing suspected illegal transactions to continue to take place” and their potential susceptibility to “money laundering prosecutions … and/or hefty fines.” Allusion to that “susceptibility” was the culminating and most ominous threat in the letter.

Posner further notes that if an ordinary citizen had sent a letter with similar requests, and without the "demands," the payment companies likely would have been "discarded or filed away." Posner gets down to the truth of the matter:

Visa and MasterCard were victims of government coercion aimed at shutting up or shutting down Backpage’s adult section (more likely aimed at bankrupting Backpage--lest the ads that the sheriff doesn’t like simply migrate to other sections of the website), when it is unclear that Backpage is engaged in illegal activity, and if it is not then the credit card companies cannot be accomplices and should not be threatened as accomplices by the sheriff and his staff.

Posner points out that Section 230 protects Backpage from liability and the hints that Mastercard and Visa might be liable for federal crimes (which are exempt from Section 230) are ludicrous. He also knocks Dart for suggesting that all ads in the adult section of Backpage are illegal themselves, noting that plenty of it is perfectly legal, including fetishism and phone sex.

And thus:

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.”... A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.”

Posner clearly notes the potential slippery slope:

For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or “plug the band” (a listing of music performances that includes such dubious offerings as “SUPERCELL Rocks Halloween at The Matchbox Bar & Grill”), or men dating men or women dating women—but ads for all these things can be found in non-adult sections of Backpage and it would be a clear abuse of power for public officials to try to eliminate them not by expressing an opinion but by threatening credit card companies or other suppliers of payment services utilized by customers of Backpage, or other third parties, with legal or other coercive governmental action.

Finally, Judge Posner rejects the lower court's claims that issuing an injunction would hurt Dart's own First Amendment rights:

The judge was further mistaken when he said that “the Sheriff’s own First Amendment rights are at stake in this case and the Court must therefore also consider the risk that erroneously entering an injunction would chill Dart’s own right to speak out on issues of public concern. Sheriff Dart has a First Amendment right to publicly criticize the credit card companies for any connection to illegal activity, as long as he stops short of threats” (emphasis added). But the judge himself, in the passages we quoted earlier, had been emphatic that Dart had not stopped short of threats. Those threats were not protected by the First Amendment; they were violations of the First Amendment.

This ruling has lots of great quotes that may be quite useful elsewhere. Over the years we've seen many politicians make similar threats -- often to similar results. Remember when former Senator Joe Lieberman pressured Amazon to stop hosting Wikileaks? And similar pressure led Mastercard and Visa to stop accepting donations for Wikileaks as well -- apparently in a deal with US diplomats. Lieberman (that guy again?!?) also famously put pressure on Google to censor websites that he deemed as promoting "terrorism" and similarly pressured Twitter to silence the feeds of people he didn't like. He also threatened the NY Times for publishing Wikileaks' documents.

And, of course, in just the last few weeks, we've seen increasing pressure from government entities potentially demanding censorship online of "bad" content in the wake of the Paris attacks. Hopefully, this ruling by Posner will provide a useful tool to combat such censorship. While it technically only applies in the 7th Circuit, Posner's rulings are influential in other circuits as well. Of course, there's a chance that Sheriff Dart will decide to waste more taxpayer money and seek for an en banc rehearing in the 7th Circuit or even ask the Supreme Court to hear the case as well. If so, this could become a key free speech case concerning government coercion to silence online speech.

Filed Under: 7th circuit, adult ads, censorship, first amendment, free speech, richard posner, thomas dart, threats
Companies: backpage, backpage.com, craigslist, mastercard, visa

Washington State Court Confused By Section 230, Says Backpage May Be Liable For User Posts

from the because-we-said-so dept

What is it about state courts where they seem much more confused by the law than federal courts? The latest is a horrifically confused ruling out of Washington State's Supreme Court, basically handwaving its way past nearly all caselaw on Section 230 of the CDA. That law makes it clear that online service providers are not liable for actions/content of their users. This was a key purpose behind the law, which Congress passed to make sure that people couldn't file frivolous lawsuits targeting service providers, rather than the actual users who broke the law. It's a good and extremely important law in the development of the internet, having helped stop numerous frivolous lawsuits, but more importantly, for providing strong protections that made it possible for many internet services to exist in the first place. And, yet, every once in a while, a court seems to miss all of this, and today that court is the Washington State Supreme Court, ruling that Backpage.com may be directly liable for the fact that one of its users used the service to engage in sex trafficking with young girls.

Let's start by making one thing clear: the trafficking of these girls is horrific and one hopes that all legal recourse is being used against those who actually were engaged in the trafficking. But targeting Backpage makes no more sense than targeting Ford because one of its cars was used as the getaway vehicle in a bank robbery. And yet... the court rules otherwise. And it doesn't give any good reason at all, other than because it said so. The court doesn't ignore Section 230. It properly notes that Section 230 protects service providers, but not those who develop the content. And then it decides that Backpage may have created rules that "induce sex trafficking," and thus it could be seen as developing the content. Here's the key part of the ruling:

Viewing J.S. 's allegations in the light most favorable to J.S., as we must at this stage, J.S. alleged facts that, if proved true, would show that Backpage did more than simply maintain neutral policies prohibiting or limiting certain content. Those allegations include that (1) "Backpage.com ... has intentionally developed its website to require information that allows and encourages ... illegal trade to occur through its website, including the illegal trafficking of underage girls," (2) "Backpage.com has developed content requirements that it knows will allow pimps and prostitutes to evade law enforcement," (3) "Backpage.com knows that the foregoing content requirements are a fraud and a ruse that is aimed at helping pimps, prostitutes, and Backpage.com evade law enforcement by giving the [false] appearance that Backpage.com does not allow sex trafficking on its website," (4) "the content requirements are nothing more than a method developed by Backpage.com to allow pimps, prostitutes, and Backpage.com to evade law enforcement for illegal sex trafficking, including the trafficking of minors for sex," ( 5) Backpage' s "content requirements are specifically designed to control the nature and context of those advertisements so that pimps can continue to use Backpage.com to traffic in sex, including the trafficking of children, and so Backpage.com can continue to profit from those advertisements," and (6) Backpage has a "substantial role in creating the content and context of the advertisements on its website." ... According to J.S., Backpage' s advertisement posting rules were not simply neutral policies prohibiting or limiting certain content but were instead ~'specifically designed ... so that pimps can continue to use Backpage.com to traffic in sex." ...

Given J. S. 's allegations, it does not appear "'beyond a reasonable doubt that no facts exist that would justify recovery"' in this case, and, therefore, dismissal of J.S.'s claims under CR 12(b)(6) is not appropriate.... It is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking to determine whether Backpage is subject to suit under the CDA because "a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct." ... Fact-finding on this issue is warranted.

In short, because the plaintiffs claim that -- even though Backpage's terms of service directly state that you are not allowed to use the service for illegal activities such as trafficking or prostitution -- because they believe Backpage really wants that, it means that it's somehow crossed the line and helped to "develop" the content. That's bizarre and legally wrong. I imagine this will reach a federal court which will destroy this decision.

There's a concurring ruling from Justice Charles Wiggins that is even more confused and completely misreads Section 230 and the volumes of caselaw that make it clear that 230 grants full immunity to service providers. Wiggins insists that's not true. Because he's wrong.

I write separately to emphasize that this holding implies that the plaintiffs' claims do not treat Backpage.com as the publisher or speaker of another's information under the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230(c). The dissent misreads this statute to provide "immunity" to '"interactive service providers.'" Dissent at 1. This reading is irreconcilable with the actual language of the statute, which does not include the term or any synonym of "immunity." Subsection 230(c)(1) instead provides a narrower protection from liability: the plain language of the statute creates a defense when there is (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker of information (3) that is provided by another information content provider.

Thus, when the cause of action does not treat an intermediary as a publisher or speaker, subsection 230(c)(1) cannot be read to protect that intermediary from liability. Plaintiffs' claims that Backpage.com created ucontent rules" specifically designed to induce sex trafficking and evade law enforcement do not treat Backpage.com as the publisher or speaker of another's information. Accordingly, I join the majority opinion.

This is just wrong. It's a really twisted reading of Section 230 that no court has made before. Wiggins is trying to argue that they're not blaming Backpage for the sex trafficking, but merely for the rules that induce sex trafficking (even though the company goes way beyond what's legally necessary to insist that no sex trafficking is allowed on the platform). Basically, he's arguing that if people think you mean one thing, but say another, Section 230 safe harbors might no longer apply to you. Because.

There's a strong dissent from Justice Sheryl Gordon McCloud pointing out how ridiculous it is that things got this far.

The majority holds that J.S.'s complaint would support a claim that Backpage functions as an "information content provider" because it alleged that Backpage maintains content requirements for advertisements posted on its website that surreptitiously guide pimps on how to post illegal, exploitative ads. But J.S.'s complaint clearly alleges that another content provider, not Backpage, provided the content for the advertisements. J.S. thus seeks to hold Backpage liable as a publisher or speaker of that information. Subsection 230(c)(l) therefore bars J.S.'s claims.

That dissent also trashes Wiggins' attempt to parse a difference between "immunity" and a more limited liability protection:

Given the allegations in this particular case, the difference in terminology is irrelevant. The question is how far the subsection 230( c )(1) protection reaches, and courts interpreting subsection 230(c)(1)'s language uniformly hold that its protection for publishers is "quite robust." They apply an expansive definition of '"interactive computer service provider"' and a rather restrictive definition of "information content provider." Carafano v. Metrosplash.com .... They hold that the law provides immunity if the plaintiff alleges that the defendant violated a duty deriving from the defendant's status or conduct as a publisher or speaker. Barnes v. Yahoo!... As long as a third party "'willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process."' Corbis Corp. v. Amazon.com.... The inquiry is whether the defendant "function[ed] as an 'information content provider' for the portion of the statement or publication at issue." Carafano...; see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com ... (affirming district court's dismissal of complaint where plaintiff failed to show that defendant "was responsible for the creation or development. of the allegedly defamatory content at issue").

The dissent further notes that the majority decision mistakenly takes J.S.'s assertions that Backpage is the developer of content as true, even though it's clearly not the case under the law:

This allegation-that Backpage designed its posting rules to induce sex trafficking-might prove true. Indeed, we presume it is true when evaluating the sufficiency of J. S. 's complaint. But adopting such posting rules still does not make Backpage a "content provider" within the meaning of the CDA, even under the Ninth Circuit case upon which J.S., the majority, and the concurrence place principal reliance....

In fact, courts have consistently rejected the contention that defendants "develop" content by maintaining neutral policies prohibiting or limiting certain content. For example, in Dart v. Craigslist... which the majority cites at 7, the plaintiff claimed that even though Craigslist, an Internet classifieds service, prohibited illegal content on its website, users frequently posted ads promising sex for money.... Consequently, the plaintiff asserted that Craigslist "ma[de] it easier for prostitutes, pimps, and patrons to conduct business." ... A federal court in Illinois dismissed the claims... explaining, "Plaintiffs argument that Craigslist causes or induces illegal content is further undercut by the fact that Craigslist repeatedly warns users not to post such content. While we accept as true for the purposes of this motion plaintiffs allegation that users routinely flout Craigslist's guidelines, it is not because Craigslist has caused them to do so. Or if it has, it is only 'in the sense that no one could post [unlawful content] if craigslist did not offer a forum."' ... see also Chi. Lawyers'... ("Nothing in the service craigslist offers induces anyone to post any particular listing."); Roommates, ... ("To be sure, the website provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content-indeed, the defamatory posting was contrary to the website's express policies.")....

The facts in Dart are analogous to the facts here. J.S. alleges that pimps-not Backpage-created and uploaded the ads at issue... ("adult pimps ... posted advertisements for the girls") ... ("adult pimps ... create[ d] ... and then uploaded [the] advertisements of S.L. onto . . . Backpage.com"). Nothing in Backpage's policies obligated users to flout Backpage's express content requirements or to post unlawful content. J. S. 's allegations indicate that the pimps chose the content ultimately used in the advertisements.... The actual "information" at issue consisted of the particular wording and photos that the pimps provided....

Thus, holding Backpage liable would punish it for publishing third party content, and the CDA prohibits such liability.

It seems highly likely that Backpage will appeal and will win.

Filed Under: cda, immunity, liability, safe harbors, section 230, trafficking, washington
Companies: backpage, backpage.com

Judge Slams Meddling Sheriff Thomas Dart For Likely First Amendment Attack On Backpage

from the who-didn't-see-that-coming? dept

A few weeks ago, we wrote about the highly questionable move by Cook County Sheriff Thomas Dart to first strongarm credit card companies into no longer working with Backpage.com, and then host a press conference patting himself on the back for interfering in a legal business relationship between private entities who were not breaking the law. In fact, Sheriff Dart knew damn well that no one was breaking the law, because in 2009 he ridiculously sued Craigslist, incorrectly trying to hold the site liable for the actions of users who engaged in prostitution. As we pointed out, this was not just firing at the wrong target, but doing so in a counterproductive way as well, since Craigslist happily worked with law enforcement to help them identify users who were engaged in prostitution. Not surprisingly, Sheriff Dart's grandstanding lawsuit was tossed out with the judge explaining in detail how Sheriff Dart didn't seem to understand the law.

So it seemed really strange to us that Dart was still focusing on the same thing, but with Backpage, and pressuring Visa and Mastercard not to do business with the site, based on his own mistaken notion of the law. Last week, Backpage struck back and sued Sheriff Dart claiming that the Sheriff's actions violated the First and Fourteenth Amendments, concerning both prior restraint and violations of due process:

Sheriff Dart’s actions are an unconstitutional prior restraint of speech without legal authority or due process. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). The First Amendment precludes a government official from banning a forum of speech simply because he dislikes it. Prior restraints are presumptively unconstitutional and can be imposed only in the most exigent of circumstances, requiring the least restrictive means to further a compelling state interest and requisite procedural safeguards. Sheriff Dart’s actions do not come close to passing constitutional muster.

Sheriff Dart’s actions to cripple Backpage.com and all speech through the site are an especially pernicious form of prior restraint. He has achieved his purpose through false accusations, innuendo, and coercion, whereas, if he had brought suit directly or Cook County had attempted to pass a law to shut down the website, Backpage.com would have had a fair opportunity to respond and defeat such efforts, given well-established law. Backpage.com received no notice or opportunity to be heard before card services were terminated. Moreover, Sheriff Dart’s actions have not only infringed Backpage.com’s rights to publish and distribute speech, but the rights of millions of the website’s users to post and receive protected speech.

The lawsuit notes that not being able to accept credit cards has cut off nearly all revenue to Backpage, and so the company sought a temporary restraining order against Dart in his efforts to kill off their business.

The judge in the case, Judge John Tharp, wasted no time, granting the temporary restraining order in just two days and slamming Sheriff Dart in the process. The court, citing the same famous Bantam Books v. Sullivan case that Backpage mentions, notes that it appears Dart was out of line. The Bantam Books case matches up pretty closely to this case: it involved "informal pressure" from a government body to try to stomp out the circulation of "objectionable" publications, including obscene material. Even though there was no formal legal process and obscene content is not protected by the First Amendment, the Supreme Court still found the effort unconstitutional as prior restraint, saying it would go overboard and suppress speech.

Basically all of Dart's attempts to avoid this failed. He first argued that Backpage had no standing for the First Amendment claim because it's not Backpage's speech that's at stake. The court rejects that, noting that it has standing as the key enabler of that speech.

Backpage may stand in the shoes of its users in seeking relief from the burden placed on their freedom of speech as a result of not being able to use credit cards to access Backpage’s forum. Here, Backpage meets the “relaxed” third-party standing requirements because its Backpage’s commercial injury gives it “sufficient injury-in-fact to satisfy the Article III case-or-controversy requirement” and it can “reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.” ... In addition, Backpage’s own status as, in essence, a publisher (it does not create any content) gives it a direct First Amendment injury.

And, of course, Dart's claims that there is no protected speech in prostitution ads also falls completely flat, because there's plenty of other content on Backpage:

Nor does the Court accept Dart’s argument that standing is lacking because there is no protected First Amendment interest at stake here at all. Clearly First Amendment protection does not extend to exhortations to illegal conduct— Dart’s stated concern. E.g., United States v. Williams, 553 U.S. 285, 297 (2008) (“Offers to engage in illegal transactions are categorically excluded from First Amendment protection.”). But here, there is no dispute that all of the advertisements on Backpage.com are affected; Backpage cannot collect its normal fees for even the most benign advertisements, and therefore will be unable to host any when the money runs out. Given that Dart sought to “defund” Backpage, not just shut down its adult sections, based wholly on the content of some ads, Dart cannot maintain that the First Amendment is not implicated by his actions, even if he were correct that none of Backpage’s “escort ads” themselves are protected.

Separately, the court notes that even if Dart is correct that those ads are not protected by the First Amendment, that's up to a court to decide, not Dart on his own. That's called due process.

Given that Backpage has standing, is it likely to succeed on the merits? The court finds it likely enough to grant the temporary restraining order:

The only remaining question with respect to the plaintiff’s likelihood of success on the merits is whether Backpage will be able to establish a First Amendment violation—that is, whether Dart’s actions are the type of informal prior restraint that the Bantam Books line of cases prohibits. And, as the parties’ oral arguments made clear, that involves two main questions: (1) whether Dart’s letter constitutes a threat, and (2) whether the credit card companies involuntarily withdrew business from Backpage. The plaintiff has a better than negligible—but not certain— chance of proving that both answers are “yes.”

The threat at issue in Bantam Books came from Rhode Island’s Commission to Encourage Morality in Youth, which had no direct authority to prosecute or impose sanctions on the distributors it entreated to stop circulating certain books. Despite simply requesting “cooperation” from book distributors, the Commission’s actions effectively suppressed the circulation of the objectionable books entirely because of the Commission’s official status, its coercive language, and its practice of sending police to follow up with the distributors. As the Supreme Court explained, “though the Commission is limited to informal sanctions—the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation—the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed ‘objectionable’ and succeeded in its aim.”...

The same principle applies in this case. Dart did not directly threaten the companies with an investigation or prosecution. But by writing in his official capacity on Sheriff’s Department letterhead, requesting a “cease and desist,” invoking the legal obligations of “financial institutions” to cooperate with law enforcement, and requiring ongoing contact with the companies, among other things, it could reasonably be inferred that Dart brought the weight of his office to bear on his “request” that the companies stop their association with Backpage altogether. And even if it is true that Dart has no jurisdiction over the credit card companies, he could certainly refer an investigation to the appropriate authority.... Moreover, the credit card companies were not privy to Dart’s candid admission when they read the letters and acted accordingly.

The court also slaps away Dart's argument that there's no problem here since the credit card companies' decision was "voluntary":

Another potential distinguishing feature of Bantam Books is the clear finding in that case that the book distributed had not cooperated voluntarily with the Commission’s request to stop circulating certain titles. Here, Dart contends that any action by the credit card companies was wholly voluntary. But for purposes of a TRO, enough signs point in the other direction. These companies had worked with Backpage for more than a decade, and they terminated their relationships because of Dart’s letters. The Court cannot state as a matter of law that the letters were not a threat..... Whether Dart coerced the companies or simply educated them has not yet been definitively established, but given the timing of the withdrawals and the companies’ public statements, at the very least it is clear on this record that the companies did not act spontaneously.

The court also notes -- as we've pointed out for years -- that there's no evidence (and certainly none presented by Dart) that shutting down Backpage would actually lead to a decline in prostitution and trafficking. It also makes the same point we've been making for years that Backpage appears to be a great tool for law enforcement to use to track down such lawbreaking:

The hardships clearly weigh more heavily on the plaintiff and its users. Backpage’s business is imperiled, and the users are in imminent jeopardy of losing a forum for protected (as well as unprotected) speech. Sheriff Dart has made no argument, and has provided no evidence, that prostitution, trafficking, and sexual exploitation of minors will be reduced significantly reduced by Backpage’s demise; indeed, it appears that an oft-used tool for identifying lawbreakers (by Dart and other law enforcement agencies) will be lost if Backpage were to fold.

The judge also completely smacks down Dart's weird and nonsensical claim that the public is "better served" this way because Backpage has since made all of its ads free. But, the court notes -- how does that make sense, when in the same breath Dart has been arguing that he wants less access to Backpage?

As for the public interest, Dart contends that public interest is best served right now because “the public is able to use Backpage.com for free.” Curious as it is for Dart to equate the public interest with more access to Backpage.com, the argument is specious, for the record suggests that Backpage is in jeopardy of going under as a result of Dart’s tactics.

So in the end, a temporary injunction is issued, and there will be a hearing later this week on a longer preliminary injunction. Of course, that alone won't necessarily mean that the credit card companies go back to working with Backpage, so the company may end up having to shut down even if it wins.

All this should raise serious questions about just what Sheriff Dart is up to here, other than trying to drum up bogus grandstanding headlines to get attention by claiming that he's "cleaning up the internet" or something similarly ridiculous. If Sheriff Dart really wanted to go after prostitution online, he'd be working closely with Backpage to go after those actually responsible, rather than conspiring to drive it somewhere else while giving himself misleading headlines.

Filed Under: cook county, due process, first amendment, thomas dart
Companies: backpage

Chicago Area Sheriff Who Wasted Taxpayer Money Suing Craigslist, Now Strong-Arms Payment Companies To Avoid Backpage

from the that's-not-what-government-is-supposed-to-do dept

Remember Thomas Dart? He's the sheriff of Cook County, Illinois (the county that covers Chicago and many of its suburbs). For reasons that make no sense at all, he's somewhat obsessed with the fact that some prostitutes have figured out how to use the internet. But, rather than using this information to actually find and arrest those who are breaking the law, he's decided a much better move is to ignore the law and attack the internet tools those prostitutes use. Back in 2009 he sued Craigslist, wasting a ton of taxpayer money, until the court inevitably threw out the case, explaining (in detail) to Dart that the law (in particular, Section 230 of the CDA) says he can't do that. As we noted at the time, the really, really bizarre part was that in Dart's initial announcement, he even noted how his staff used Craigslist to find and arrest those engaged in prostitution. In other words, his lawsuit appeared to be an attempt to shut down a tool that had been useful to his staff in stopping crime. Indeed, in the court ruling throwing out his bogus lawsuit, the Court pointed out the obvious:

Sheriff Dart may continue to use Craigslist's website to identify and pursue individuals who post allegedly unlawful content... But he cannot sue Craigslist for their conduct.

Sheriff Dart may not be suing again, but it appears he has not learned his lesson yet. Of course, after being hassled by a number of law enforcement officials with no legal authority, like Dart, Craigslist eventually shut down any section of its site that might have been used for prostitution. And, just as we predicted, the prostitution just moved onward to another site, Backpage.com. And, of course, the same law enforcement officials suddenly freaked out over Backpage -- even though, yet again, the law is pretty clear that Backpage is not liable.

So, now, Thomas Dart is back again, this time without a lawsuit, but using his position as a law enforcement official to strong-arm payment companies into no longer working with Backpage:

MasterCard said on Tuesday that its credit cards can no longer be used to pay for ads on the Backpage.com website, following a request from a Chicago law enforcement official who said the site is used by sex traffickers.

Cook County Sheriff Thomas Dart said that so-called "escort" ads on Backpage.com and similar sites make up the foundation of the sex trafficking industry, which preys on the young and vulnerable. He has asked both Visa Inc and MasterCard Inc to cut off any association with the Backpage.com "adult" section.

"Backpage has significantly lowered the barrier to entry for would-be traffickers," said Dart, adding he will reveal details of a larger initiative against Backpage at a news conference on Wednesday.

The "news conference" on Wednesday was just a chance to say that Visa was in on the ban as well:

Visa Inc said on Wednesday it is joining MasterCard Inc and American Express Co in barring its credit cards from being used to pay for ads on Backpage.com following a request from a Chicago sheriff who said the site is used by sex traffickers.

Once again, Backpage has tons of legitimate uses as a classifieds service, and whatever prostitution that is done on the site should make Dart's life easier by allowing him and his staff to find those engaged in prostitution. I'm curious, did Dart similarly recommend that streetlights be turned off at night so that street walking prostitutes can no longer walk the streets? Why not target the actual prostitutes, rather than the tool that helps you find them?

In the meantime, while this move will get stupid headlines for Dart, it won't change much. Backpage is already accepting Bitcoin, and I can't wait to see Dart's office try to figure out how to pressure "Bitcoin" into no longer working with Backpage.

Ridiculously, Dart now claims this will make traffickers easier to catch. Though he doesn't explain how:

"We have no naive notion that we'll end prostitution, end trafficking, end exploitation of children," Dart said. "What we've wanted all along is to make it more difficult and make (traffickers) easier to catch."

So the way you make them "easier" to catch is to cut off their ability to use tools that make it ridiculously easy for you to track down, and instead push them to using tools and systems where you can't track them down? Want to try that one again?

Either way, doesn't it seem highly questionable for a law enforcement official to interfere in the private business agreements of two companies, neither of whom are breaking the law?

Filed Under: classifieds, cook county, escort services, government pressure, payment systems, prostitution, thomas dart
Companies: backpage, mastercard, visa

Court Shelves Washington State Law That Would Turn Service Providers Into Criminals Based On Their Users' Behavior

from the good-move dept

Back in June, we wrote about a challenge -- from both the Village Voice's Backpage.com and the Internet Archive to a new law in Washington State, SB 6251, that effectively criminalized online service providers based on actions by their users. We've long talked about the problems of such secondary liability efforts, and thankfully the US has section 230 of the CDA that forbids most such efforts to apply secondary liability. And, indeed, the court has now granted a preliminary injunction against the law, citing the Section 230 issues, among other things. Basically, the court sides with Backpage and the Internet Archive on every issue here, finding the state's reasoning in support of the law to be weak.

There are some important points in this ruling. First up, the court said that Section 230 applied, even though this was about a criminal law issue, rather than a civil law issue. Many (even Section 230 supporters) have argued that Section 230 only applies to civil law. The court notes that the law says it doesn't apply to federal criminal laws, but says nothing about state laws. And, as such, CDA 230 should be seen to apply to state laws, even if they're criminal:

If Congress did not want the CDA to apply in state criminal actions, it would have said so.

So, the law is already on shaky legs due to it being knocked out by Section 230. However, the court goes further to focus on how the bill violates the First Amendment as well, targeting the suppression of speech. It's a pretty detailed explanation for how laws that target speech, rather than action, have a much higher bar, and this bill does not appear to meet that higher bar. Most importantly, the court recognizes that any laws targeting speech can have severe chilling effects, even on legal speech, and that's unacceptable under the First Amendment:

The most problematic aspect of SB 6251 is not the protected speech that it regulates by its terms, but the likelihood that it will chill a substantial amount of protected speech in addition to the unprotected speech that Defendants argue the statute was meant to address

The court even notes that it could create chilling effects and potentially criminalize sites like Facebook and Twitter as well. While the state denied this possibility, the judge points out that it's entirely possible to read the law in that way, and that alone could create chilling effects from companies trying to avoid criminal liability. Finally, the court notes that the law also almost certainly violates the Commerce Clause, because it would regulate companies located entirely outside of Washington State.

In other words, the state is on very thin ice here, as the court isn't buying any of its arguments for why the statute is legal. At this point in the case, the discussion is just over whether or not an injunction is granted to block the enforcement of the law -- and that's now done. There's still much more to come in the case, but the law doesn't look likely to survive at this point, and that's a good thing. There are some real issues that the law seeks to take on (mainly dealing with prostitution and child porn), but it does so in such a broad way and with the wrong tool: criminalizing service providers. It's good that the courts are recognizing how this law is massively overbroad.

Filed Under: liability, section 230, service providers, washington state
Companies: backpage, internet archive

NYTimes Columnist Stirs Up A Controversy That Will Only Drive Human Trafficking Further Underground

from the dangerous-ideas dept

You may recall a couple years ago that a bunch of politicians, led by state Attorneys General, went on a huge grandstanding campaign against Craigslist, because some people were using Craigslist for prostitution -- including some human trafficking. As we noted at the time (repeatedly), Craigslist was incredibly cooperative with law enforcement, and smart law enforcement officials actually used Craigslist as a tool to help discover, track down and arrest those who were breaking the law. But, rather than recognize that Craigslist was a useful tool, a huge media campaign was set off, leading Craigslist to shut down its "adult services" section, despite plenty of legal uses.

Of course, exactly as we predicted, the people who were previously using Craigslist for illegal reasons didn't magically disappear. They just shifted to other sites. One popular one was Backpage, owned by Village Voice Media, publishers of the famed alternative newspaper The Village Voice. Unlike Craigslist, Backpage told the grandstanders that it wouldn't back down. It noted that it cooperates with law enforcement, and that it understands the law and why it's not liable for the actions of its users. A lawsuit filed against the company resulted in Backpage being declared legal.

You would think, maybe, that the media and the granstanders would get the message. But, no, they just keep at it. Nicholas Kristoff at the NY Times recently posted a ridiculously silly column, which first "outs" Goldman Sachs as a minority investor in Village Voice Media (leading GS to sell all its shares before the article went to press, despite it having nothing to do with how the company operates), and then goes on to insist that the owners of the site must be "held accountable."

This is, to put it plainly, stupid. Kristof even acknowledges that the real way to stop human trafficking and underage prostitution is to have "prosecutors... focus more on pimps and johns." You know how they can do that? By using sites like Backpage to collect evidence and to find out who's actually responsible. But, immediately after that, Kristof insists that:

Closing down the leading Web site used by traffickers would complicate their lives, and after so many years of girls being trafficked on this site, it’s time to hold owners accountable.

That's ridiculous. Two years ago, we were told that the "leading website used by traffickers" was Craigslist. And the same sort of idiotically short-sighted campaign closed down that part of the service, and it did nothing to complicate the traffickers lives, because they quickly moved on to a variety of other platforms, including some that don't cooperate nearly as closely with law enforcement as Craigslist did (and Backpage does today). If Backpage is pressured into stopping adult ads, then the traffickers will move on to other sites within hours -- and many will be less willing to cooperate. Blaming the service provider isn't just stupid and pointless, it's counterproductive. It's helping the very people that the grandstanders claim to be targeting.

It's really quite sickening. The best way to stop these awful acts is to go after those responsible. Adding some ridiculous (and probably unconstitutional) secondary liability to third parties doesn't help. It makes the problem worse. Kristof and others may have good intentions, but their simple (and confounding) inability to think more than a single step ahead is really disappointing. In an effort to do good, they're causing a tremendous amount of harm. Not only that, but they're advocating to set an awful precedent when it comes to secondary liability, taking away the basic principle that you don't blame the tool, you blame the person who actually is breaking the law. Kristof is an award-winning journalist, and clearly a very smart person. That he'd be so short-sighted on something like this -- and stoop to the level of trying to drag other companies through the mud -- is immensely disappointing.

Filed Under: law enforcement, nicholas kristoff, prostitution
Companies: backpage, craigslist, new york times, village voice media

As Expected, Backpage Is Not Liable For Prostitution Ads

from the we-could-have-told-you-that dept

Last year, we wrote about a former child prostitute who sued Village Voice Media for its Backpage classified ads offerings, since this was a tool previously used to sell her. Now there has been a lot of controversy in the last couple of years (mainly from grandstanding politicians) about prostitution ads on Craigslist and Backpage. However, as has been pointed out over and over and over again, the liability belongs on the person actually committing the crime, not the service provider. And, in fact, the law, via Section 230 of the CDA gives service providers immunity.

Still, we were a little worried that since this case was highly emotionally charged, and involved a child prostitute, that the court might make a bad ruling. Instead, it appears that court has made a really strong and useful ruling explaining repeatedly why Backpage is not liable. The girl's lawyers basically tried every trick in the book to get around Section 230 immunity, but the court debunked each and every one. Many of the claims she made are the types of claims we see in the comments from people who don't understand safe harbors (like saying that you lose safe harbors if you make money). Eric Goldman, at the link above, walks one by one through each of the lawyer's attempts to get around Section 230, and explains why the judge rejected it. It's worth reading the whole thing, but here's a snippet:

• Backpage allows keyword searches. Citing several cases, including Jurin and Rosetta Stone, the court says this is irrelevant.
• Backpage created an adult category. The court cites Dart v. Craigslist in concluding this is irrelevant.
• Backpage takes steps to increase its revenues. Backpage allegedly "tout[ed] its website as a 'highly tuned marketing site' and instruct[ed] posters of ads on how to best increase the impact of those ads." The court responds: "to find Backpage to be not immune from suit based on M.A.'s allegations about how it structured its website in order to increase its profits would be to create a for-profit exception to � 230's broad grant of immunity. This the Court may not do."
• Backpage allegedly knew prostitution was advertised on the site. The court cites several cases for the proposition that knowledge is irrelevant to 230's immunity.

It's nice to see, yet again, a court recognize that liability should be properly applied, and we shouldn't blame 3rd party service providers for the actions of their users.

Filed Under: ads, backpage, liability, prostitution, section 230
Companies: backpage, village voice