Court Shows SESTA Is Not Needed: Says Backpage Can Lose Its CDA 230 Protections If It Helped Create Illegal Content

from the congress-couldn't-have-waited? dept

So, in the lead up to Congress' vote on FOSTA/SESTA, we pointed out that a court in Boston was likely on the verge of ruling that Backpage was not protected by CDA 230, because of actions the site had taken. Considering that the publicly stated rationale by nearly everyone supporting FOSTA/SESTA was that it was needed to get around Backpage's CDA 230 protections, we wondered why Congress couldn't wait to see how the court ruled. Yesterday, the Judge indeed ruled against a motion to dismiss in the case of one of the plaintiffs (there were three in the case), saying that enough evidence had been presented to get around CDA 230 for the time being. The key issue: whether or not Backpage directly changed the content, making it the content creator, rather than just the service provider. Backpage has insisted that it didn't make any changes (that a user did), but the court finds that there's enough evidence to reject the motion to dismiss, and to allow the case the move forward:

The allegation in the complaint that “Backpage . . . redrafted the advertisement [of Jane Doe No. 3] to suggest she was an adult” suffices to allow the complaint by Jane Doe No. 3 to proceed in the face of the CDA’s statutory immunity, which does not protect service providers when they create content, FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009). The further discovery, while not clarifying greatly the matter, provides, drawing all reasonable inferences in Plaintiff’s favor, a modicum of support for the notion that Backpage has substantively changed an ad, which then supports the information and belief allegation in the complaint. Thus, the CDA poses no bar to Jane Doe No. 3’s claim at this stage of the proceedings.

On the other two plaintiffs, the court notes that merely classifying posts or removing terms that imply illegality doesn't rid the site of its protections:

Plaintiffs allege Backpage revised one advertisement regarding Jane Doe No. 1 by not only deleting words but also by adding a word.... The advertisement initially included the language “Latina shorty,” which was later replaced by the words “Exotic Latina.” Id. Backpage’s alleged alteration of the advertisement of Jane Doe is not enough to transform Backpage from an internet service provider to the creator, even in part, of this advertisement’s content. “Shorty”, per the Complaint, signaled, in slang, a young girl. Id. The deletion of this word did not create content. Backpage added the word “exotic.” The Complaint does not allege that the word exotic carries any special or slang meaning. Ordinarily, the word means from a foreign or distant land. In the circumstances of this advertisement as described in the complaint, the addition of the word exotic is in the nature of editorial change rather than content creation, as its addition does not substantively alter the meaning of the already provided identifier “Latina.”

Separately, the court feels the need to point out that what happened to the plaintiffs, as alleged in the complaint, is horrifying. But that does not mean it's appropriate to blame a tool that was used by those doling out the horrific practices.

Finally, crediting the truthfulness of the Plaintiffs’ allegations, as the law instructs, the Complaint describes unimaginable sexual abuse, repeatedly endured by each Plaintiff.... Nothing about the Court’s ruling as to Jane No. 1 or No. 2 diminishes the harm suffered by each of these woman. The ruling addresses only the applicable civil law. 47 U.S.C. § 230(e)(1) (creating immunity from civil and state criminal law, but not federal criminal law).

For FOSTA/SESTA supporters, they will almost certainly use this as vindication for why FOSTA/SESTA is still necessary. After all, the court ruled against them here. But, in actuality, it should again show why CDA 230 is properly calibrated. If Backpage had no direct role in creating the content, why does it make sense to hold it liable? What happened to the plaintiffs here does sound horrible. But the proper people to go after are those who actually engaged in trafficking the women. And nothing has ever stopped law enforcement from doing that. Similarly, as the court notes, Backpage is still subject to federal criminal law (and multiple reports have said that a federal grand jury has been empaneled to investigate the company's operations).

And, finally, the fact that Jane Doe 3 is able to proceed shows that Backpage can potentially face liability if there is evidence to suggest that it had a real hand in creating the content, thus removing the liability. This ruling, once again, shows why FOSTA/SESTA was not needed to get at the original stated goal of those pushing for it. Indeed, as law professor Eric Goldman points out, this ruling makes it plain that the logic behind FOSTA/SESTA is "nonsensical."

Filed Under: cda 230, fosta, intermediary liability, sesta, sex trafficking
Companies: backpage.com

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

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

Arrested Backpage Execs Ask Kamala Harris To Drop Bogus Case She Herself Has Admitted She Has No Authority To Bring

from the grandstanding dept

A few weeks ago, we wrote about the absolutely ridiculous and unconstitutional charges brought by California Attorney General Kamala Harris and Texas Attorney General Ken Paxton against the online classified site Backpage.com. We focused on the fact that Section 230 clearly protects Backpage from such a lawsuit, and went into detail on the ridiculousness of Harris' "investigator" using the fact that Backpage itself actually worked with him to track down, remove, and block ads for prostitution as some sort of evidence of wrongdoing.

The execs are now hitting back -- as they should. They've asked the court to dump the case with a detailed and thorough filing. It highlights that the charges violate the First Amendment, Section 230 of the CDA and, at an even more basic level, the complaint doesn't even satisfy the requirements for "pimping," which is what they're charged with.

The AG’s Complaint and theory of prosecution are frankly outrageous. The AG seeks to impose criminal liability on a website simply because it published and received fees for third-party ads. The AG’s chrages directly contravene the First Amendment and the immunity afforded to websites under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230. Escort ads on Backpage.com are protected speech under the First Amendment, as several courts have held. The AG cannot arrest, imprison and refuse to release individuals associated with the website simply based on an investigator’s opinions about what he believes is “obvious” about escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have rejected the same tack time and again. The First Amendment also expressly precludes state authorities from imposing criminal liability on parties that publish or distribute speech absent proof of scienter, i.e., that the publisher knew the specific information published was unlawful. The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959), recognizing the First Amendment prohibits states from imposing criminal liability that would require publishers to review all materials they distribute, because such a requirement would severely chill speech. More specifically, the AG’s theory expressly violates Section 230, which Congress enacted twenty years ago to preserve and promote free speech on the Internet by immunizing website operators from liability for publishing content provided by third-party users. Section 230 preempts all contrary state laws—including state criminal laws. Indeed, Attorney General Harris has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has now commenced a prosecution to do precisely what she admits Section 230 prohibits.

That point about Harris "acknowledging" that Section 230 bars this lawsuit is a big one. It's based on the letter that Harris signed onto, from a bunch of Attorneys General to Congress, asking it to change Section 230 to grant state AGs the ability to go after Backpage. We had written about this letter three years ago when it was sent, but I had forgotten that it explicitly called out Backpage.com, and noted that the reason they wanted Section 230 modified was because they knew it was immune from prosecution by those state AGs. The letter (again, that Harris herself signed), says:

In instance after instance, State and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com. The involvement of these advertising companies is not incidental—these companies have constructed their business models around income gained from participants in the sex trade. But, as it has most recently been interpreted, the Communications Decency Act of 1996 (“CDA”) prevents State and local law enforcement agencies from prosecuting these companies. This must change. The undersigned Attorneys General respectfully request that the U.S. Congress amend the CDA....

Yet now, despite no change being made to the law, Harris thinks she can bring a case against them?

Separately, the lawyers have sent a letter to Harris directly reminding her of this and asking her to drop the case:

Ads posted on Backpage.com are protected by the First Amendment, as several courts have held. As the Seventh Circuit recently said in enjoining the Sheriff of Cook County, Illinois and rejecting much the same theories that the State asserts here: “[A] public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment.” ... The State cannot prosecute a publisher for publishing speech with absolutely no showing that the speech was unlawful, much less any allegation that defendants ever even saw the specific ads that are the basis for its charges. As the Supreme Court has long recognized, states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality, as any other rule would severely chill speech.

More specifically, Section 230 precludes the charges the State seeks to assert. As you know, Section 230 bars state-law claims against websites and other interactive computer services based on the publication of third-party content. A website cannot be held liable for publishing content submitted by users or for failing to block or remove such content, notwithstanding any allegations that it knew or should have known the content concerned unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state laws. Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet.

Indeed, in July 2013, you and other state attorneys general signed a letter to various members of Congress urging that Section 230 be amended to exempt state criminal laws from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from National Association of Attorneys General.... It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring.

Accordingly, the State should dismiss the complaint and all charges against Messrs. Ferrer, Lacey and Larkin. We write now to urge that this happen immediately.

Finally, Michael Lacey and Jim Larkin released a statement about this mess, in which they directly suggest that this whole thing was about Harris trying to seal her election to the Senate, and highlighting how infamous Sheriff Joe Arpaio tried to arrest them a decade ago, and they ended up winning $4 million for civil rights violations. But, they note, Harris probably doesn't care, because she got the headlines and the press coverage and the TV cameras covering them doing the perp walk in orange jumpsuits.

Of course, knowing the law was of modest comfort as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it. We never set out when we published our first newspaper over 40 years ago to become the first American journalists to claim the rueful distinction of having been jailed both for editorials we wrote and advertising we published.

In 2007 we were arrested in Phoenix by agents of Sheriff Joe Arpaio for having published a story in the Phoenix New Times criticizing Arpaio for misusing a Grand Jury to harass New Times and its readers. We sued Arpaio in federal court under the Civil Rights Act and settled the case against the Sheriff and his handpicked Special Prosecutor for nearly $4 million.

[....]

Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested. Like Sherriff Arpaio, she issued her sanctimonious public statement, controlled her media cycle and got her “perp walk” on the evening news. Arpaio didn’t pay a dime of the civil damages we won against him. The taxpayers of Maricopa County did. And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won’t pay. The taxpayers of California will.

And, as Kamala Harris knows, it probably won’t even make the evening news.

Indeed. This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She's yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can't stick? That's a really fucked up abuse of power, stomping on the civil rights and Constitutional rights of these guys, and knowing damn well that once the case is lost, it's the taxpayers of California who will have to pay the bill. What shameful behavior by an elected official.

Filed Under: california, carl ferrer, cda 230, first amendment, free speech, grandstanding, intermediary liability, james larkin, kamala harris, ken paxton, michael lacey, pimping, prostitution, section 230
Companies: backpage.com

Appeals Court Says Backpage.com Is Not Liable For Sex Trafficking Done Via Its Site

from the as-it-should-be dept

Backpage.com has been pretty busy in court. The site, which basically took over the market for "adult" classified ads after Craigslist shut down its ads (after being misleadingly attacked) has been sued a bunch of times, almost always by people misunderstanding Section 230 of the CDA which, as we've discussed hundreds of times, says that sites are not liable for the actions of their users. Last year, however, Backpage won a big case in Massachusetts in May, but then lost one in Washington in September. (Separately, it won a different case going after Cook County Sheriff Thomas Dart for meddling and getting credit card companies to stop supporting Backpage.com -- the company just asked the lower court to dismiss what's left of that case). The September ruling was surprising, as it's one of a very, very, very small number of cases that basically says that Section 230 doesn't apply.

Now, the appeal on the Massachusetts case has brought another good Section 230 win, saying that Backpage.com is not liable. Now, it should be clearly stated that both the Washington and Massachusetts cases involve some really awful and horrifying situations, in which girls were forced into sex trafficking. The situations that those girls were put in is horrifying and those responsible should be punished as much as the law will allow. But here's the important part: Backpage.com wasn't who was responsible. In fact, as at least some in law enforcement have recognized, Backpage.com can be a useful tool for tracking down such criminal activity.

It's been unfortunately easy for some to smear those who support Section 230 in these cases as being indifferent or somehow cruel to the plight of those who were trafficked. That's ridiculous. The explanation in the filing alone made me feel ill. But just because what happened to them was horrific and unconscionable, it doesn't mean you lash out and blame a tool that was used, rather than those who were actually responsible. Thankfully, unlike the Washington court, the 1st Circuit Appeals court understood this.

The specific issue in this case has to do with the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which says that anyone who "knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act" of sex trafficking, can be held liable under the law. But, of course, Backpage notes that, as a platform, to claim that it is liable would be to reject CDA 230 that says it cannot be held liable "as a publisher" for information published by others. The crux of the argument against Backpage here is that it's not claiming that Backpage is a "publisher," but merely that it "knowingly benefits" from sex trafficking. They argued that based on the way Backpage is set up, in terms of what it allows or disallows for posting, how it allows people to post anonymously, how it strips metadata from photographs and more, makes it different from a standard "publishing" platform. This is a pretty common attack on Section 230, claiming that it does more than a publisher and thus isn't protected. Courts have almost universally rejected that, unless those additional actions themselves could be seen to break the law (such as the Roommates.com case where the company was seen to violate fair housing laws because it had discriminatory pull downs that it set up itself).

But the court rejects this argument, saying that everything Backpage.com does is a traditional publisher activity.

As an initial matter, some of the challenged practices — most obviously, the choice of what words or phrases can be displayed on the site — are traditional publisher functions under any coherent definition of the term. See Zeran, 129 F.3d at 330 (describing decisions about "whether to publish, withdraw, postpone or alter content" as "traditional editorial functions"). And after careful consideration, we are convinced that the "publisher or speaker" language of section 230(c)(1) extends to the formulation of precisely the sort of website policies and practices that the appellants assail.

Precedent cinches the matter. In Lycos, we considered the argument that the prophylaxis of section 230(c) did not encompass "decisions regarding the 'construct and operation'" of a defendant's websites. 478 F.3d at 422. There, the plaintiffs alleged that Lycos permitted users to register under multiple screen names and provided links to "objective financial information" from a finance-related message board, thus enabling "individuals to spread misinformation more credibly." Id. at 420. We noted that, at bottom, the plaintiffs were "ultimately alleging that the construct and operation of Lycos's web sites contributed to the proliferation of misinformation" and held that as long as "the cause of action is one that would treat the service provider as the publisher of a particular posting, immunity applies not only for the service provider's decisions with respect to that posting, but also for its inherent decisions about how to treat postings generally." Id. at 422. In short, "Lycos's decision not to reduce misinformation by changing its web site policies was as much an editorial decision with respect to that misinformation as a decision not to delete a particular posting."

And thus, the court finds that Backpage.com clearly is a publisher and protected by Section 230.

The lawsuit also tries to get around Section 230 by really trying to twist the so-called "Good Samaritan" clause of Section 230. This is a part of Section 230 that is often misunderstood or ignored, but is super important. It's the part that says that you don't lose your Section 230 protections if you do moderate any content on your website. While some Section 230 haters falsely argue that the law encourages sites to "leave up absolutely everything," that's not true. Section 230(c)(2) actually is helpful in encouraging moderation by sites, since they don't lose their safe harbors if they do moderate.

However, in this case, the plaintiffs tried to attack that by noting that the clause talks about "moderation in good faith," and they tried to argue that Backpage.com wasn't moderating "in good faith." The court doesn't buy it, saying that the argument is "misplaced."

Next up, they argue that because Section 230 does not apply to federal crimes, it shouldn't apply in this case, since the TVPRA is a federal criminal statute. But that fails because this is a civil lawsuit, which the court quickly points out:

The appellants posit that the TVPRA's civil suit provision is part of the "enforcement" of a federal criminal statute under the plain meaning of that term and, thus, outside the protections afforded by section 230(c)(1). This argument, though creative, does not withstand scrutiny.

The court notes that it's quite clear that the exception for criminal statutes clearly is meant for only criminal cases, not civil cases based on criminal statutes.

Here, the subsection's title, "[n]o effect on criminal law," quite clearly indicates that the provision is limited to criminal prosecutions.

It is equally telling that where Congress wanted to include both civil and criminal remedies in CDA provisions, it did so through broader language. For instance, section 230(e)(4) states that the protections of section 230 should not "be construed to limit the application of the Electronic Communications Privacy Act of 1986," a statute that contains both criminal penalties and civil remedies.... Preserving the "application" of this Act contrasts with Congress's significantly narrower word choice in safeguarding the "enforcement" of federal criminal statutes. The normal presumption is that the employment of different words within the same statutory scheme is deliberate, so the terms ordinarily should be given differing meanings.

Not surprisingly, the plaintiffs also try to argue that Backpage.com did specific things to actually block attempts to combat sex trafficking, and it was those actions that are not protected by Section 230. But the court notes that these claims are not backed up by facts:

This causal chain is shot through with conjecture: it pyramids speculative inference upon speculative inference. This rampant guesswork extends to the effect of the alleged misrepresentations on an indeterminate number of third parties, the real impact of Backpage's behavior on the overall marketplace for sex trafficking, and the odds that the appellants would not have been victimized had Backpage been more forthright.

When all is said and done, it is apparent that the attenuated causal chain proposed by the appellants is forged entirely out of surmise.

In the "really stretching it" arena, they also used the one other exception to Section 230: intellectual property law. For that, they argued that the pictures that were posted (mostly by the individuals who were running the sex trafficking) were "unauthorized." Of course, even if that were the case, that wouldn't make Backpage liable. The court quickly recognizes that if anyone unlawfully "benefited" from the unauthorized use of the photographs, it was the traffickers, not Backpage:

Here, there is no basis for an inference that Backpage appropriated the commercial value of the appellants' images. Although Backpage does profit from the sale of advertisements, it is not the entity that benefits from the misappropriation. A publisher like Backpage is "merely the conduit through which the advertising and publicity matter of customers" is conveyed..., and the party who actually benefits from the misappropriation is the advertiser. Matters might be different if Backpage had used the pictures to advertise its own services... but the appellants proffer no such claim.

Taking the IP claim even further, at least one photo used by the traffickers was actually taken by one of the girls herself. That girl then registered the copyright and used that to claim infringement. But, of course, the registration occurred after the case had been filed (and after the photo had been taken down), meaning that statutory damages are not available. The discussion goes into even more detail on why the copyright claim is a total non-starter that appears to have been added late as a last gasp effort to find something to use to go after Backpage.

None of this is to argue that Backpage.com is a wonderful site or a shining beacon. It may have its problems. But, as we've seen for years, people keep wanting to blame the tool for how people use it. Even a major NY Times columnist keeps writing totally misleading columns that try to place the blame on Backpage.com. This is desperately misguided. Just as it was misguided when everyone tried to blame Craigslist for the same thing. You'd think that, after Craigslist stopped accepting adult ads, and those ads quickly moved to Backpage.com, people might realize that blaming the website is monumentally stupid, because it's not the website causing this. Take down one website and another will pop up. Or maybe a few others. That's not the issue. You should blame the people who are actually breaking the law -- the people who are engaged in the sex trafficking business, who are forcing these women to participate. And, a great way to track down those people is to use tools like Backpage to track them down, rather than attacking the tool itself.

Filed Under: 1st circuit, copyright, liability, section 230, sex trafficking
Companies: backpage.com

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

Once Again, Just Because Someone Used Backpage.com For Trafficking, Doesn't Mean Backpage Is Liable

from the the-sort-of-'win'-no-one-feels-great-about dept

The criminal activity alleged may be horrific, but that's a non-factor when it comes to the consideration of protections afforded to website owners who host third-party content. The ongoing lawsuit against Backpage.com, filed by victims of sex trafficking (who were minors at the time), has reached an end. (Until appealed, of course.)

The arguments deployed by the plaintiffs were nothing new. In numerous cases, ranging from defamation claims to alleged prostitution of minors, plaintiffs have made similar arguments. The theory -- unsupported by law or common sense -- that website owners should be held legally responsible for the postings of others isn't novel. But it has yet to find a court willing to advance the theory. Why? Because doing so would result in the following sort of ridiculousness, which, while ridiculous, would chill free speech and cause many website owners to get out of the website-owning business.

In their lawsuit against Backpage.com, the plaintiffs—three women who were forced into selling sex as teenage runaways—argued similarly, saying that because their trafficker found clients on Backpage, the website was responsible for their exploitation. But by this logic, Facebook is guilty whenever anyone posts a threat there, Craigslist is culpable should a landlord want "females only," and Reason is guilty should any of you folks broker a drug deal in the comments. Thankfully, section 230 of the Communications Decency Act, passed in 1996, established that the Internet doesn't work this way.

A federal district court in Massachussetts addresses the multiple allegations by the plaintiffs in their argument seeking to find Backpage.com responsible for the postings of others, and finds that even in the totality, it fails to rise to the level needed to strip the site of its Section 230 protections.

Singly or in the aggregate, the allegedly sordid practices of Backpage identified by amici amount to neither affirmative participation in an illegal venture nor active web content creation. Nothing in the escorts section of Backpage requires users to offer or search for commercial sex with children. The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal. The creation of sponsored ads with excerpts taken from the original posts reflects the illegality (or legality) of the original posts and nothing more. Similarly, the automatic generation of navigational path names that identify the ads as falling within the “escorts” category is not content creation. The stripping of metadata from photographs is a standard practice among Internet service providers. Hosting anonymous users and accepting payments from anonymous sources in Bitcoins, peppercorns, or whatever, might have been made illegal by Congress, but it was not. Backpage’s passivity and imperfect filtering system may be appropriate targets for criticism, but they do not transform Backpage into an information content provider.

Summing it up -- after dismissing all claims -- the court notes that the sexual trafficking of children is abhorrent, but that Section 230 protections aren't a sliding scale to be applied with varying amounts of force depending on the severity of the alleged actions.

To avoid any misunderstanding, let me make it clear that the court is not unsympathetic to the tragic plight described by Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3. Nor does it regard the sexual trafficking of children as anything other than an abhorrent evil. Finally, the court is not naïve – I am fully aware that sex traffickers and other purveyors of illegal wares ranging from drugs to pornography exploit the vulnerabilities of the Internet as a marketing tool. Whether one agrees with its stated policy or not (a policy driven not simply by economic concerns, but also by technological and constitutional considerations), Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned. Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact.

This is buttressed by a quote from another decision, quoted earlier in the discussion of the plaintiffs' claims -- one that deals specifically with another abhorrent criminal act.

Child pornography obviously is intolerable, but civil immunity for interactive service providers does not constitute “tolerance” of child pornography any more than civil immunity from the numerous other forms of harmful content that third parties may create constitutes approval of that content. Section 230 does not limit anyone’s ability to bring criminal or civil actions against the actual wrongdoers, the individuals who actually create and consume the child pornography. Here, both the neighbor [who created the child pornography] and the moderator of the Candyman web site have been prosecuted and are serving sentences in federal prison. Further, the section 230(e)(1) exemption permits law enforcement authorities to bring criminal charges against even interactive service providers in the event that they themselves actually violate federal criminal laws.

In essence, just because it's easier to pursue site owners than criminals, and that any recovery of damages may seem more likely, doesn't make it the correct path for retribution. Those who trafficked these plaintiffs are the wrongdoers, not the site that hosted these criminals' ads.

Filed Under: lawsuits, liability, section 230, sex trafficking
Companies: backpage.com

Oh Look: Police Can Use Backpage.com To Track Down, Arrest & Convict Pimps & Prostitutes

from the why-didn't-anyone-think-of-that-before... dept

A few years ago, there was a ton of political grandstanding against Craigslist, because there was some prostitution on the site. As we noted at the time, it was pretty misguided. Craigslist cooperated with law enforcement and many law enforcement officials realized that Craigslist was an excellent tool to help them find and arrest law breakers. We pointed out that going after Craigslist instead of the actual law breakers would mean that the activity would just move somewhere else. Indeed, Craigslist finally caved to tons of public pressure and blocked any ad that might be related to prostitution... and it did nothing to stop prostitution or human trafficking. It just moved elsewhere. The same crowd that wrongfully targeted Craigslist then shifted all of their attention to Backpage.com. Even though the law has made it clear that Backpage, as a third party service provider is not liable, the grandstanding continues against Backpage. The whole thing has gotten to be so much, that Backpage's owners, Village Voice Media, have sold off the newspapers to separate them out from the site, and to avoid having the two properties connected.

The crusading against Backpage.com has become increasingly intense and increasingly misguided lately. We get press releases all the time, full of emotional, but legally false, language, all attacking Backpage.com. No one seems to even want to recognize that attacking Backpage instead of those actually responsible only makes it that much more difficult to track down the real criminals. Some law enforcement officials are not quite as misguided. As with Craigslist, we're seeing cases where Backpage.com is instrumental in putting together the case -- in this case, against someone who had set up a brothel.

And yet, the attacks on Backpage.com continue. The whole thing is stunning to me. Here's a tool that is a goldmine for the police to collect evidence against those actually responsible for prostitution and human trafficking... and the response is to try to shut it down and drive those efforts further underground, rather than actually going after and arresting those responsible. It's shocking.

Filed Under: liability, prostitution, third party liability, tools
Companies: backpage.com, village voice media

Washington State Tries To Criminalize Service Providers For User Behavior; Internet Archive Sues

from the section-230,-have-you-read-it? dept

For years, we've talked about the importance of Section 230 in properly applying liability directed at the actual people who break laws, rather than the tools and services they use. Unfortunately, some people fail to make a distinction and love to blame service providers. And... once it gets into areas that make people react emotionally, things get ridiculous. For example, we've written a few times about the misguided attacks on Backpage.com, which only came about because of similar misguided attacks on Craigslist. At issue was that both sites had been used for prostitution and sex trafficking. But, rather than do the sensible thing and work with those platforms -- who both have programs to do exactly this -- to make it easier for law enforcement to find and prosecute those involved in such efforts, grandstanding politicians and activists blamed the service providers, driving the actual activities further underground. Of course, they have never had any real legal argument, and the lawsuits have fallen flat.

However, it appears that some politicians in Washington State decided to pass a state law (SB 6251) which targets service providers. It's one of those laws that it's easy for politicians to get behind without realizing what they're actually doing. They think they're "protecting the children" but they're actually making the problem significantly worse. That's because they're not setting up a better way to track down and stop those actually responsible, but rather are simply telling them to move further underground, where it will be even harder to stop them.

And, of course, in their zeal to "protect the children" the politicians who passed this bill wrote it so broadly that it can create massive problems for tons of legitimate online service providers. The Internet Archive, represented by the EFF, has filed to join a lawsuit (from Backpage) against the law, pointing out that it clearly violates Section 230 of the CDA, which providers the necessary safe harbors for service providers. The overreach of the Washington law is pretty astounding:

SB 6251 would effectively coerce, by threat of felony prosecution, online service providers to become censors of third-party users' content by threatening five years imprisonment and a $10,000 fine per violation against anyone who knowingly publishes, disseminates or displays or anyone who “indirectly” “causes” the publication, dissemination, or display of content that contains an explicit or even “implicit” offer of any sexual contact for “something of value” in Washington if the content includes an image that turns out to be of a minor. Because of its expansive language (i.e., “indirectly” “causes”), the law could be applied not only to online classified ad services like Backpage.com but also to any web site that provides access to third-party content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, Internet service providers, and more. A law that takes such an overbroad approach is of serious concern to the Internet Archive, which aims to serve as a library for the Internet, and accordingly, houses more than 150 billion web pages archived since 1996.

The law expressly states that it is not a defense that the defendant did not know that the image was of a minor. Instead, to avoid prosecution, the defendant must obtain governmental or educational identification for the person(s) depicted in the post (notably, even if that ID does not contain a photograph). This means that service providers – no matter where headquartered or operated – may be asked to review each and every piece of third-party content accessible through their services to determine whether the content is an “implicit” ad for a commercial sex act in Washington, whether it includes a depiction of a person, and, if so, obtain and maintain a record of the person’s ID. These obligations would severely impede the practice of hosting third-party content online.

I'm sure the folks behind this law had the best of intentions. Sex trafficking of underage persons is a very real and horrific problem (even if the numbers bandied about are massively exaggerated). But the real solution is to go after the actual perpetrators, and that means working with service providers to help track them down -- not criminalizing the service providers in a way that kills off lots of legitimate activity as well.

Filed Under: cda, censorship, liability, safe harbors, section 230, washington state
Companies: backpage.com, craigslist, eff, internet archive, village voice