Facebook, Whose Support Made FOSTA Law, Now Sued For Facilitating Sex Trafficking Under FOSTA

from the like-we-couldn't-have-predicted-that dept

If you don't remember, the momentum around FOSTA/SESTA was that it was going nowhere, until suddenly Facebook did an about face and abruptly (and strongly) supported the bill, leading Congress to incorrectly believe that the tech industry now supported the bill. Facebook's Sheryl Sandberg, who became the public face of supporting the bill, insisted that there were no problems with the bill, that it wouldn't create any real problems for internet companies, and that it would be useful in the fight against sex trafficking.

At the time, we pointed out that under the broad definitions in the law, it certainly appeared that Facebook was potentially violating the bill in multiple ways. Even if it turned out that courts rule that the vague language of FOSTA should be construed much more narrowly, the damage is already done, as some companies will have to battle the issue out in court.

And... perhaps not surprisingly... one of the first such cases has been brought against Facebook itself along with Backpage, Backpage's execs and some local motels (hat tip to Eric Goldman). As you can see, it's a "Jane Doe" lawsuit filed against Facebook in Harris County, Texas, and the core of the lawsuit is basically tying Facebook to Backpage:

Social Media companies, websites, and the hotel industry should never place their quest for profits above the public good. Human trafficking has hit epidemic proportions in our communities, and it has had a devastating effect on the victims and a crushing financial effect on our world. Driven by profit, social media giants like Facebook and sex brokers like Backpage have treated children as a commodity.

The participants in this venture of abuse share a value--profit. And the bottom line comes before all else--including the safety of children in our community. Facebook's profic (sic) metric is "connections." Backpage charged fees to broker sex. And hotels, like the one in this lawsuit, look the other way while children, like Jane Doe, are abused, exploited, and made available for sex acts to multiple perpetrators.

While pimps and sex buyers are sometimes criminally prosecuted, the social media companies, hotel industry, and Backpage have been able to escape taking responsibility for the harms and losses they cause these victims and our community. For years, businesses have been providing predators unrestricted means to prey on victims. Not anymore.

The specific issue relating to Facebook is that the plaintiff "Jane Doe" was recruited from Facebook, and that makes it vicariously liable under FOSTA.

The use of Facebook and the Backpage website for the advertising and recruitment of minors for sex was so pervasive and known to Facebook and the Backpage Defendants that it cannot be said such conduct was so unforeseen as to prevent Facebook and the Backpage Defendants from being liable for such conduct. Rather, Facebook and the Backpage Defendants knowingly aided and assisted sex traffickers, including the sex trafficker who recruited Jane Doe from Facebook and posted the advertisements of Jane Doe on the Backpage website. Facebook and the Backpage Defendants knowingly benefited from this illegal and immoral activity.

In a section about the "allegations regarding Facebook" the complaint makes Facebook out as if it were just as bad as Backpage. Here's just a snippet:

With each passing day, the gateway to our community's children is increasingly social media--and Facebook in particular.

People, including children, connecting with their friends, family, and communities are not the only ones passing through Facebook's gateway.

For years now, Facebook has permitted sex traffickers unfiltered access to the most vulnerable members of our society.

It has continually been used to facilitate human trafficking by allowing sex traffickers an unrestricted platform to stalk, exploit, recruit, groom, recruit, and extort children into the sex trade.

And, yes, it says "recruit" twice in there. This is, of course, hogwash. Facebook connects people, but it gives those users a tremendous amount of control over who is able to contact them -- meaning it is hardly "unrestricted." Either way, because of actions of someone else on Facebook, Facebook should be held liable according to this lawsuit:

The Facebook Friend said Jane Doe could make enough money to pay the rent on her own apartment. The Facebook fried offered to pick her up and console her about her disagreement with her mother.

Within hours of meeting the Facebook Friend, photos were taken of Jane Doe and were posted on Backpage, and then was raped, beaten, and forced into further sex trafficking.

Jane Doe had never been made aware of the dangers of sex traffickers on Facebook.

Jane Doe had never been made aware of the warning signs of sex traffickers on Facebook.

During the whole time that Jane Doe's Facebook Friend used Facebook, Facebook took no steps to verify his identity.

To date, Facebook has taken no reasonable steps to mitigate the use of Facebook by sex traffickers or exploiters using its platform.

Millions of minors like Jane Doe remain at risk every day when they simply log onto Facebook.

So... given those details, it certainly seems like there's an obvious criminal case to be brought against this "Facebook friend." Shouldn't that be the focus? Also, there are lots of places to learn how to be safe online. Why is it Facebook's fault that this individual didn't learn the basics of internet safety? The story is sad, obviously, but blaming Facebook for it is ridiculous. But thanks to Facebook's own support of FOSTA, it's at least now possible. In the causes of action, Doe claims that Facebook had a duty to "warn of the dangers of grooming" and failing to do that makes it liable. That seems like a stretch, but again, thanks to FOSTA it's not an open and shut case like it would have been earlier.

Remember, back when some of us pointed out that under FOSTA almost any website might face crushing liability? But supporters of the bill insisted that was a ridiculous read on the bill, because it would only apply to "bad actors" who "knowingly facilitated sex trafficking." We kept being told that this would never apply to sites like Facebook, and even had people tell us that Facebook's own support of the bill somehow "proved" that the law would never be used against Facebook.

And, yet, here we are with Facebook in court, with a victim of sex trafficking claiming that Facebook is liable.

Facebook may get the case tossed -- and hopefully that is the end result -- but it has already created a legal headache for the company, just as many of us predicted back when the bill was being debated. Also, I can't wait for all of those who insisted that FOSTA would never be used against sites like Facebook to either (a) refuse to comment on this or (b) now insist that Facebook was, indeed, a "bad actor" despite denying it during the debate over FOSTA and SESTA.

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

Federal Court Dumps Another Lawsuit Against Twitter For Contributing To Worldwide Terrorism

from the legal-definition-of-insanity dept

The lawsuits against social media companies brought by victims of terrorist attacks continue to pile up. So far, though, no one has racked up a win. Certain law firms (1-800-LAW-FIRM and Excolo Law) appear to be making a decent living filing lawsuits they'll never have a chance of winning, but it's not doing much for victims and their families.

The lawsuits attempt to route around Section 230 immunity by positing the existence of terrorists on social media platform is exactly the same thing as providing material support for terrorism. But this argument doesn't provide better legal footing. No matter what approach is taken, it's still plaintiffs seeking to hold social media companies directly responsible for violent acts committed by others.

Eric Goldman has written about another losing effort involving one of the major players in the Twitter terrorism lawsuit field, Excolo Law. Once again, the plaintiffs don't present any winning arguments. The California federal court doesn't even have to address Section 230 immunity to toss the case. The Anti-Terrorism Act allegations are bad enough to warrant dismissal.

Here's what the court has to say about the direct liability arguments:

The FAC [First Amended Complaint] plausibly alleges that ISIS used Twitter to reach new followers, raise funds, and incite violence. It also adequately alleges that Twitter knew ISIS-affiliated users were posting these communications, and that it made only minimal efforts to control them.

Nevertheless, the direct relationship link is missing. Most of the allegations are about ISIS's use of Twitter in general. The relatively few allegations involving Twitter that are specific to the attacks that killed plaintiffs' family members also provide little more than generic statements that some of alleged perpetrators of the attacks were "active" Twitter users who used the platform to follow "ISIS-affiliated Twitter accounts" and otherwise "communicate with others." Nothing in the FAC rises to the level of plausibly alleging that plaintiffs were injured "by reason of" Twitter's conduct. Consequently, the direct ATA claims are dismissed.

The indirect liability route doesn't fare any better:

The FAC does not allege that Twitter was "aware" that it was "assuming a role in" the terrorists' attacks in Europe. See id. It does not allege that Twitter encouraged ISIS to carry out these attacks or even knew about them before they occurred. At most, the FAC alleges that Twitter should have known ISIS was planning an attack and that it ignored the possible consequences of letting terrorists operate on its platform. That is in effect an allegation of recklessness, but JASTA [Justice Against Sponsors of Terrorism Act] requires more. Although plaintiffs are correct that Congress referred in its statement of findings and purpose to those who "knowingly or recklessly contribute material support or resources" to terrorists, JASTA § 2(a)(6) (emphasis added), the plain language of Section 2333 reaches only those "knowingly providing substantial assistance." 18 U.S.C. § 2333(d)(2). This clear statutory text controls.

There's no plausible conspiracy claim either. If this argument was given credence by the court, Twitter would be a co-conspirator in any criminal activity carried out by its users.

Nothing in the FAC establishes an agreement, express or otherwise, between Twitter and ISIS to commit terrorist attacks. Plaintiffs point to Twitter's terms of service that every user is subject to, but while that clearly is an "agreement," it is hardly relevant to a terrorist conspiracy. No other plausible agreement is mentioned in the FAC.

The plaintiffs are given one more chance to amend their complaint, but these are allegations that can't be massaged into victorious arguments. The problem that continues to be talked around in these lawsuits is that you cannot hold a social media platform responsible for the actions of its users. If the plaintiffs drop the ATA arguments, they're just going to run into Section 230 immunity. While the acts of terrorism were horrific and drastically affected the lives of the families of those killed, suing Twitter, Facebook, et al over these acts doesn't do anything for the plaintiffs but take time and money away from those who've already lost loved ones.

I'm not suggesting the law firms engaging in these lawsuits are lying to plaintiffs about their chances or encouraging futile litigation. I certainly would hope they aren't engaged in any of the above because that would mean they're preying on hurting people to earn income. But this steady stream of lawsuits -- much of it emanating from two law firms -- seems to suggest a level of intellectual dishonesty that's especially unseemly given the underlying circumstances.

Filed Under: blame, cda 230, intermediary liability, lawsuits, material support, social media, terrorism
Companies: excolo law, twitter

Thanks To Copyright, We Already Know How Aggressive Content Moderation Works: And It's A Disaster

from the lessons-learned dept

One of the reasons why I'm so adamant about the negative impacts on free speech from making internet platforms liable for the speech of their users, or even just by pushing for greater and greater content moderation by those platforms, is that this is not a theoretical situation where we have no idea how things will play out. We have reams and reams of evidence, just in the US alone (and plenty outside of the US) by looking at the copyright world. Remember, while CDA 230 makes platforms immune from a civil lawsuit regarding content posted by users or for any moderation choices regarding that content, it exempts intellectual property law (and criminal law). On the copyright side, we have a different regime: DMCA 512. Whereas CDA 230 creates a broad immunity, DMCA 512 creates a narrower "safe harbor" where sites need to meet a list of criteria in order to be eligible for the safe harbor, and those criteria keep getting litigated over and over again. Thus, we have quite a clear parallel universe to look at concerning what happens when you make a platform liable for speech -- even if you include conditions and safe harbors.

And it's not good.

Corynne McSherry, EFF's legal director has put together an excellent list of five lessons on content moderation from the copyright wars that should be required reading for anyone looking to upset the apple cart of CDA 230. Incredibly, as someone who lives and breathes this stuff every day, it's quite incredible how frequently we hear from people who haven't looked at what happened with copyright, who seem to think that the DMCA's regime is a perfect example of what we should replace CDA 230 with. But... that's only because they have no idea what a complete and total clusterfuck the copyright/DMCA world has been and remains. Let's dig into the lessons:

1. Mistakes will be made—lots of them

The DMCA’s takedown system offers huge incentives to service providers that take down content when they get a notice of infringement. Given the incentives of the DMCA safe harbors, service providers will usually respond to a DMCA takedown notice by quickly removing the challenged content. Thus, by simply sending an email or filling out a web form, a copyright owner (or, for that matter, anyone who wishes to remove speech for whatever reason) can take content offline.

Many takedowns target clearly infringing content. But there is ample evidence that rightsholders and others abuse this power on a regular basis—either deliberately or because they have not bothered to learn enough about copyright law to determine whether the content they object to is unlawful. At EFF, we’ve been documenting improper takedowns for many years, and highlight particularly egregious ones in our Takedown Hall of Shame. 

As we have already seen, content moderation practices are also rife with errors.

There are all different kinds of "mistakes" embedded here as well. One is just the truly accidental mistakes, but it happens quite frequently when you're dealing with billions of pieces of content. Even if those mistakes only happen 0.01% of the time, you still end up with a ton of content taken down that should remain up. That's a problem.

But the larger issue, as Corynne points out, is abuse. If you give someone a tool to take down content, guess what they do with it? They take down content with it. They often don't care -- even a little bit -- that they're using the DMCA for non-copyright purposes. They just want the content to come down for whatever reasons, and the DMCA provides the tool. Imagine that, but on steroids, in other contexts.

2. Robots aren’t the answer

Rightsholders and platforms looking to police infringement at scale often place their hopes in automated processes. Unfortunately, such processes regularly backfire.

For example, YouTube’s Content ID system works by having people upload their content into a database maintained by YouTube. New uploads are compared to what’s in the database and when the algorithm detects a match, copyright holders are informed. They can then make a claim, forcing it to be taken down, or they can simply opt to make money from ads put on the video.

But the system fails regularly. In 2015, for example, Sebastien Tomczak uploaded a ten-hour video of white noise. A few years later, as a result of YouTube’s Content ID system, a series of copyright claims were made against Tomczak’s video. Five different claims were filed on sound that Tomczak created himself. Although the claimants didn’t force Tomczak’s video to be taken down they all opted to monetize it instead. In other words, ads on the ten-hour video could generate revenue for those claiming copyright on the static.

Again, this has been an incredibly popular claim -- most frequently from people who are totally ignorant both of how technology works (the "well, you nerds can nerd harder" kind of approach) to those who are totally ignorant of what a complete clusterfuck existing solutions have been. ContentID is absolutely terrible and has a terrible error rate and it is, by far, the best solution out there.

And that's just in the narrow category of copyright filtering. If you expect algorithms to be able to detect much more amorphous concepts like bullying, terrorist content, hate speech and more... you're asking for much higher error rates... and a lot of unnecessary censorship.

3. Platforms must invest in transparency and robust, rapid, appeals processes

With the above in mind, every proposal and process for takedown should include a corollary plan for restoration. Here, too, copyright law and practice can be instructive. The DMCA has a counternotice provision, which allows a user who has been improperly accused of infringement to challenge the takedown and, if the sender doesn’t go to court, the platform can restore to content without fear of liability. But the counternotice process is pretty flawed: it can be intimidating and confusing, it does little good where the content in question will be stale in two weeks, and platforms are often even slower to restore challenge material. One additional problem with counter-notices, particularly in the early days of the DMCA, was that users struggled to discover who was complaining, and the precise nature of the complaint. 

The number of requests, who is making them, and how absurd they can get has been highlighted in company transparency reports. Transparency reports can both highlight extreme instances of abuse—such as in Automattic’s Hall of Shame—or share aggregate numbers. The former is a reminder that there is no ceiling to how rightsholders can abuse the DMCA. The latter shows trends useful for policymaking. For example, Twitter’s latest report shows a 38 percent uptick in takedowns since the last report and that 154,106 accounts have been affected by takedown notices. It’s valuable data to have to evaluate the effect of the DMCA, data we also need to see what effects “community standards” would have.

Equally important is transparency about specific takedown demands, so users who are hit with those takedowns can understand who is complaining, about what. For example, a remix artist might include multiple clips in a single video, believing they are protected fair uses. Knowing the nature of the complaint can help her revisit her fair analysis, and decide whether to fight back.

Another point on this is that, incredibly, those who support greater content policing frequently are very much against great transparency. In the copyright space, the legacy companies have often hit back against transparency and complained about things like the Lumen Database and the fact that Google publishes details of takedown demands in its transparency reports -- with bogus claims about how such transparency only helps infringers. I fully expect that if we gut CDA 230, we'll see similarly silly arguments against transparency.

4. Abuse should lead to real consequences

Congress knew that Section 512’s powerful incentives could result in lawful material being censored from the Internet without prior judicial scrutiny. To inhibit abuse, Congress made sure that the DMCA included a series of checks and balances, including Section 512(f), which gives users the ability to hold rightsholders accountable if they send a DMCA notice in bad faith.

In practice, however, Section 512(f) has not done nearly enough to curb abuse. Part of the problem is that the Ninth Circuit Court of Appeals has suggested that the person whose speech was taken down must prove to a jury the subjective belief of the censor—a standard that will be all but impossible for most to meet, particularly if they lack the deep pockets necessary to litigate the question. As one federal judge noted, the Ninth Circuit’s “construction eviscerates § 512(f) and leaves it toothless against frivolous takedown notices.” For example, some rightsholders unreasonably believe that virtually all uses of copyrighted works must be licensed. If they are going to wield copyright law like a sword, they should at least be required to understand the weapon.

This gets back to the very first point. One of the reasons why the DMCA gets so widely abused any time anyone wants to take down anything is because there's basically zero penalty for fling a bogus report. There is merely the theoretical penalty found in 512(f) which the courts have effectively killed off in most (hopefully not all) cases. But, again, it's even worse than it seems. Even if there were a better version of 512(f) in place, how many people really want to go through the process of suing someone just because they took down their cat videos or whatever? In many cases, the risk is exceptionally low because even if there were a possible punishment, no one would even pursue it. So if we're going to set up a system that can be abused -- as any of these systems can be -- there should be at least some weight and substance behind dealing with abusive attempts to censor content.

5. Speech regulators will never be satisfied with voluntary efforts

Platforms may think that if they “voluntarily” embrace the role of speech police, governments and private groups will back off and they can escape regulation. As Professor Margot Kaminski observed in connection with the last major effort push through new copyright enforcement mechanisms, voluntary efforts never satisfy people speech censors:

Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse).

… We guarantee large monetary awards against infringers, with no showing of actual harm. We effectively require websites to cooperate with rights-holders to take down material, without requiring proof that it's infringing in court. And our criminal copyright law has such a low threshold that it criminalizes the behavior of most people online, instead of targeting infringement on a true commercial scale.

In addition, as noted, the large platforms adopted a number of mechanisms to make it easier for rightsholders to go after allegedly infringing activities. But none of these legal policing mechanisms have stopped major content holders from complaining, vociferously, that they need new ways to force Silicon Valley to be copyright police. Instead, so-called "voluntary efforts" end up serving as a basis for regulation. Witness, for example, the battle to require companies to adopt filtering technologies across the board in the EU, free speech concerns be damned.

Over and over we've tried to point this out to the platforms that have bent over backwards to please Hollywood. It's never, ever enough. Even when the platforms basically do exactly what was asked of them, those who wish to censor the networks always, always, always ask for more. That's exactly what will happen if we gut CDA 230.

Again, it's worrisome that the debates over changing intermediary liability rules don't seem to even acknowledge the vast amount of empirical evidence we have in the copyright context. And that's maddening, given that the copyright world shows just how broken the system can become.

Filed Under: ai, cda 230, content moderation, copyright, dmca 512, free speech, intermediary liability, takedowns

A Mix Of Good And Bad Ideas In NAFTA Replacement

from the not-great,-but-some-useful-concepts dept

Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements, other than to acknowledge that the legacy copyright industry has spent decades demanding that they be included in those agreements. I've mentioned it many times in the past, but the book Information Feudalism should be required reading on this subject, showing how copyright interests effectively hijacked the international trade agreement process to force through domestic policies they wished to have. The internet community mostly ignored the trade agreement process for years, allowing the RIAAs and MPAAs of the world to run rampant and get more or less whatever they wanted in smokey backrooms, before running home to Congress demanding that we pass new laws to "live up to our international obligations."

When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.

And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.

Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).

Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.

We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.

On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.

This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.

On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.

Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

This is useful, especially as CDA 230 and DMCA 512 are under attack. Again, I'm disappointed that we should need to use "trade agreements" to argue this point, but since others are trying to undermine intermediary liability through trade agreements, there needs to be some pushback, and this does establish that in a clear manner. Hilariously, a former RIAA exec who was instrumental in getting copyright expansions placed into trade agreements around the globe is now whining about how awful it is that intermediary liability protections are found in this new agreement, citing concerns raised by plenty of people who support these protections, but who in the past protested efforts to expand copyright rules through those trade agreements. What a hypocritical position for him to take. Dude, you were the one who forced these issues into trade agreements: don't freak out and cry about it when you face some level of pushback in the form of policies you dislike. You made your bed.

In the end, again, it's disappointing that these issues should be in a trade agreement at all. None of this really has anything to do with "trade" in the traditional sense. But they are in this agreement, and thus we should hope that they get the various issues right. The inclusion of intermediary liability protections is clearly a good result if you must include these kinds of provisions, but the copyright and biologic expansions are still incredibly problematic. Unfortunately, it seems likely that the response from the USTR or anyone else will be "well, you win some, you lose some" rather than fixing the problems.

Filed Under: biologics, canada, cda 230, copyright, copyright term, intermediary liability, mexico, nafta, notice and notice, notice and takedown, section 230, trade agreements, usmca

The Bullshit Rewriting Of History To Claim FOSTA Took Down Backpage

from the not-how-it-happened dept

I was afraid that this was going to happen. If you don't recall, the official "reason" for why we needed FOSTA (originally SESTA) was that it was necessary to "take down Backpage." In the original announcement about the bill by Senator Portman, his press release quoted 20 Senators, and 11 of them mentioned Backpage.com as the reason for the bill. Not one of them seemed to mention that Backpage had already shut down its adult section months earlier. And, over the months of debate concerning FOSTA/SESTA, we noted that there was nothing in the existing law preventing federal law enforcement officials from taking down Backpage if it were actually violating the law.

And, indeed, before FOSTA was even signed into law, the DOJ seized the website and arrested its founders. Incredibly, even though Backpage was shut down before FOSTA was law, some of the bill's backers tried to credit the bill with taking down the site. The worst was Rep. Mimi Walters, who directly tried to take credit for FOSTA taking down Backpage (even though FOSTA wasn't even signed into law at the time she took credit for it).

Since then, I've been concerned that there will be an attempt to rewrite history to pretend that FOSTA was, in fact, responsible for the criminal prosecution of Backpage. And, it appears that is coming true. Last week, Buzzfeed ran a worth-reading profile of lawyer Marc Randazza, whom we've talked about plenty on this site (sometimes agreeing with him, and sometimes... not agreeing with him at all). I really don't have too much to say about the profile, except that it's unfortunate that Buzzfeed's Joseph Bernstein helps build up the myth that FOSTA was responsible for taking down Backpage:

The state still has the limited power to regulate individuals’ speech. But so too can the state pressure or mandate social platforms to limit what they publish (as it did in FOSTA/SESTA, which forced websites like Backpage to stop hosting ads for sex work, resulting in conditions that sex workers say have endangered them), and so too do social platforms govern the speech of their users.

This is really, really wrong -- and it's unfortunate, because it makes you wonder what other errors might be lurking in Bernsteins' reporting (he's normally a great reporter, but this is a pretty big error). In fact, there was an entirely different law, the SAVE Act from 2015, that made advertising sex trafficking illegal. And, it was grandstanding threats by Congress (way before FOSTA/SESTA) that made Backpage shut down its entire adult section. And it was the DOJ who took down Backpage before even FOSTA was law. So why is anyone reporting that FOSTA helped take down Backpage?

Because that's the narrative FOSTA supporters wanted from the very beginning. It's why so many of the quotes about the introduction of the bill mentioned Backpage. It's why sponsors of the bill falsely claimed Backpage was taken down thanks to FOSTA. But we shouldn't let them rewrite history like this, and reporters like Bernstein shouldn't contribute to this myth. FOSTA wasn't necessary to take down Backpage.

Filed Under: cda 230, fosta, history, intermediary liability, mrac randazza
Companies: backpage

FOSTA Provides Another Tool For Silencing People You Dislike

from the liability-for-censorship dept

For many years, we've discussed all the different ways that putting liability on intermediaries and internet platforms leads to greater censorship. The liability alone creates strong incentive to shut down speech rather than risk the potential of lawsuits and huge payments. The most obvious example of this for years has been the DMCA process, where the takedown process is quite frequently used for censorship purposes. Indeed, there are many cases where people seem to assume that they can (and should) use the DMCA to take down any content they dislike, whether or not it has anything to do with copyright at all.

This is a big part of the reason why we were so concerned with FOSTA. While the law is officially supposed to be about "sex trafficking" and "prostitution" the bill actually does absolutely nothing to help victims or go after actual traffickers. Instead, it pins massive liability (including criminal liability) on platforms if they're used for trafficking or prostitution. Given that, it now becomes much easier to take down certain content or close certain accounts by merely suggesting that they are involved in trafficking or prostitution.

Case in point: Engadget recently had a story talking about how PayPal (and to a lesser extent, Patreon) appeared to be cutting off the accounts of various ASMR YouTubers. Autonomous Sensory Meridian Response (ASMR) is a condition in which people who hear certain noises -- often whispering or soft scratching -- tend to experience a sort of "tingling" sensation. It's been talked about for years, and a bunch of YouTubers have built up followings making ASMR recordings. Earlier this year, we wrote about China banning some ASMR videos as "pornography." However, most ASMR videos are not sexual or pornographic in any way.

The Engadget article highlights how PayPal began banning a bunch of ASMR video creators, apparently in response to those creators being targeted on 8chan. The article suggests that it's pure trolling on the part of the 8chan users, but reading through the thread there, it's slightly more complicated (though, no less stupid). Many of the posts are misogynistic attacks on the women, and many claim that they're using ASMR as a front to sell "sexual content" and so some of them are arguing that they're really just trying to enforce the terms of service on PayPal and Patreon.

But there's something else -- some of the 8chan users claim that people in the ASMR community have been using the DMCA to silence critics as well, so to them, reporting the ASMR video creators is just a way of fighting back.

As is often the case, all of the motives here are suspect, and none of the narrators are particularly reliable. But what is clear is that intermediary liability laws become a weapon in online wars to try to silence people for whatever reason. The 8channers claim that the ASMR folks are sending bogus DMCA notices, which leads to (accurate or not) reports of ASMR accounts offering up sexual content, and platforms like PayPal and Patreon are then in a position where they're strongly compelled to just take those accounts down, rather than face any potential liability at all from FOSTA (or the DMCA).

Just sorting out who did what to whom in this situation is a total mess (I've wasted an afternoon reading all sorts of things on it, and it's next to impossible to get an accurate picture of what's really going on). But, it has created a world where when someone pisses you off online -- for good or bad reasons -- you can resort to claims that would place liability on the platforms if they don't cut off the users. And thus, people get cut off. No platform has the resources (or desire) to adjudicate what's really going on here at all... and thus, we just end up with widespread censorship.

This is likely to continue and expand, especially as intermediary liability protections are chipped away at on a grand scale. If you give people tools to censor, they will be abused, and those pushing to cut back on intermediary liability continue to play down the risk of widespread censorship and (especially) attacks on speech they actually support. But this kind of thing happens all the time, and punching giant holes in CDA 230 and similar laws will only make the issue much, much worse.

Filed Under: 4chan, asmr, cda 230, copyright, dmca, fosta, free speech, intermediary liability, takedowns, threats, trolls
Companies: patreon, paypal, youtube

Once Again, Court Rejects Silly Claims That YouTube Provided Material Support For Terrorists

from the that's-not-how-this-works dept

For the past few years we've been covering a whole series of cases, most of them filed by (I'm not making this up) a silly law firm by the name of 1-800-Law-Firm, trying to argue that various big internet companies provided material support to ISIS or other terrorists, and therefore owe tons of money to surviving relatives of people killed by ISIS or other terrorist organizations. There have been lawsuits against Twitter, Facebook and Google/YouTube. So far, all of these lawsuits have failed miserably -- as they should.

Even if the plaintiffs could show that these platforms actively enabled terrorists to use their platform (which they do not, as all of them proactively look to remove terrorist related content), none of the cases makes an even half-hearted attempt to connect the (very unfortunate) deaths of their relatives to any actual content on these platforms. The lawsuits are basically "these bad people use Twitter/Facebook/YouTube, these people killed my relative, thus, those platforms owe me millions of dollars." That, of course, is not how the law works.

In the case filed against Google, it was filed by a relative of someone who was killed in the horrific Paris attacks a few years back. The court had already thrown out the case last year, but allowed a third amended complaint to be filed, which has now been rejected as well (hat tip to Eric Goldman for blogging about this as well).

As with every other such case, the court relied on CDA 230 in throwing it out last year, but the lawyers tried again with an amended complaint, and have failed again. The new complaint made the same four claims the earlier filing did, and added two more, insisting that CDA 230 does not apply to any of them. Once again, the court says the old claims are easily barred under CDA 230:

Claims one through four seek to impose liability on Google for knowingly permitting ISIS and its followers to post content on YouTube.... These claims still “inherently require[] the court to treat [Google] as the publisher or speaker of [third-party] content” because they “require recourse to that content to establish liability or implicate a defendant’s role . . . in publishing or excluding third party communications.” ... The [Third Amended Complaint] TAC alleges that Google “knowingly provided” its YouTube platform and other services to ISIS, and that ISIS “embraced and used” YouTube “as a powerful tool for terrorism,” allowing it “to connect its members and to facilitate [its] ability to communicate, recruit members, plan and carry out attacks, and strike fear in its enemies.”... It further alleges that Google “refuse[d] to actively identify ISIS YouTube accounts” or to make “substantial or sustained efforts to ensure that ISIS would not re-establish the accounts using new identifiers.” ... Claims one through four allege that Google violated the material support statutes by permitting ISIS and its supporters to publish harmful material on YouTube, and by failing to do enough to remove that content and the users responsible for posting the material. These claims target Google’s decisions whether to publish, withdraw, exclude, or alter content, which is “precisely the kind of activity for which section 230 was meant to provide immunity.” Roommates, 521 F.3d at 1170. “[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.” Id. at 1170-71. Claims one through four remain “inextricably bound up with the content of ISIS’s postings, since their allegations describe a theory of liability based on the ‘essential’ role that YouTube has played ‘in the rise of ISIS to become the most feared terrorist organization in the world.’” ...

In a contorted argument, Plaintiffs assert that they may rely upon third party content to support their claims without “running afoul of Section 230.”... Although they do not tie this theory to any particular claim in the TAC, it appears to be their response to the court’s determination that the claims in the SAC were “inextricably bound up with the content of ISIS’s postings.” ... Plaintiffs offer a lengthy discussion of In re Incretin-Based Therapies Products Liability Litigation, 721 Fed. Appx. 580, 583 (9th Cir. 2017). There, the Ninth Circuit reversed a trial court’s determination that certain discovery was irrelevant to whether federal law preempted the state law claims, where the discovery was relevant to the merits of the state law claims themselves. According to Plaintiffs, In re Incretin-Based Therapies supports their argument that “[e]vidence which would support” a finding that Google violated the ATA “is not the same as holding [Google] responsible for the content of third parties.” ... Plaintiffs’ argument is hard to follow and not persuasive. In re Incretin-Based Therapies does not address section 230(c)(1) or the ATA. Plaintiffs’ argument appears to be a variation on their previous contention that their claims are based upon “Google’s provision of the means for ISIS followers to self-publish content, rather than challenging the actual content itself.” ... The court rejected this argument, holding that Plaintiffs’ allegations in the SAC were inconsistent with their attempt to avoid section 230 immunity by “divorc[ing] ISIS’s offensive content from the ability to post such content.”... So too here. Plaintiffs do not allege that they have been harmed by the mere provision of the YouTube platform to ISIS and its followers. Instead, they allege that “ISIS uses YouTube as a tool and a weapon of terrorism,” and that ISIS recruits, plans, incites, instructs, threatens, and communicates its terror message on YouTube. ... Plaintiffs’ claims “are not premised solely on the theory that Google provided a publishing or communication platform to ISIS; they are further grounded in the allegation that Google failed to prevent ISIS from using YouTube to transmit its hateful message, which resulted in great harm.”....

In sum, the court concludes that Plaintiffs’ claims one through four seek to treat Google as the publisher or speaker of ISIS’s YouTube videos.

Then, there's an attempt to get around CDA 230 by saying that YouTube "recommends" ISIS videos (which it does not, but that's not the issue at this stage of the game). Like many others in the past, here the lawyers tried to use the Roommates.com ruling to argue around CDA 230. If you don't recall, in the Roommates case, the court rules that while most of Roommate's activities were protected by CDA 230, one part that was not protected was a pulldown menu allowing people to prefer certain races -- violating the Fair Housing Act. Since Roommates.com itself created the content in that pulldown, which violated the law, it was held liable for that content alone. Here, the lawyers tried to claim that YouTube recommending videos qualified for that kind of Roommates treatment. Except this is self-evidently wrong. Because Roommates only applied to content specifically created by the platform, while CDA 230 explicitly exempts editorial judgments by a platform. And recommending videos is clearly the latter, rather than the former:

Plaintiffs’ “new” theory fares no better this time around. The TAC does not contain any allegation that Google “materially contribut[ed]” in any way to the content of ISIS videos by promoting ISIS-related content. It does not allege that Google’s content recommendation features either created or developed ISIS content, or played any role at all in making ISIS’s terrorist videos objectionable or unlawful.

As Eric Goldman notes, the court does go on a really random tangent, talking about "neutral tools," which is completely meaningless here.

As for the new claims -- five and six -- the court is still unimpressed, more or less noting that this is just the lawyers trying to rephrase earlier, rejected claims:

Plaintiffs’ “new” concealment claim does little more than restate the material support claims in a slightly different form. All of those claims are barred by section 230(c)(1) as discussed above. Based on the allegations in the TAC, at its core, Plaintiffs’ concealment claim ultimately seeks to hold Google liable for allegedly failing to prevent ISIS and its supporters from using YouTube, and by failing to remove ISIS videos from YouTube. As with claims one through four, the concealment claim “requires recourse to that content” to establish any causal connection between Google permitting ISIS to use YouTube and the Paris attack. The claim thus “inherently requires the court to treat [Google] as the ‘publisher or speaker’” of ISIS content.

Claim six has similar problems:

As with claim five, Plaintiffs’ IEEPA claim is a restated version of their material support claims. It is based on the allegation that Google provided services to ISIS by permitting ISIS supporters to use the YouTube platform, including allowing supporters to post videos (“received property or interest in property of ISIS”) and utilize YouTube’s functions (including “downloading or copying videos”). This claim ultimately seeks to hold Google liable for failing to prevent ISIS and its supporters from using YouTube and failing to remove ISIS-related content from YouTube. As with the prior claims, the IEEPA claim “requires recourse to that content” to establish any causal connection between YouTube and the Paris attack, and “inherently requires the court to treat [Google] as the ‘publisher or speaker’” of ISIS content

The court also spends some time pointing out that there is no "proximate causation" between YouTube allowing ISIS to use the platform and the attacks in question (which is the key underlying point behind all of this outside of the CDA 230 issue). It points to the 9th Circuit ruling in another one of these cases, Fields v. Twitter, in which the court made it clear that just because some terrorists may have used a social network doesn't mean anyone killed by terrorists gets to sue social networks.

The court does allow for the lawyers to try one more time on one narrow issue. They had claimed that Google shared revenue with ISIS via its YouTube advertising program, which the court finds entirely unconvincing and dismisses -- but notes that since it gave the lawyers a chance to amend other complaints, but hadn't yet done so on the revenue sharing question, they could try again on that, though the court is clearly skeptical.

As Plaintiffs have already been given an opportunity to amend the complaint to avoid CDA immunity, all of their claims other than the revenue sharing claims are dismissed with prejudice. Since the court cannot conclude that further amendment of Plaintiffs’ revenue sharing claims would be futile, they are granted one final opportunity to amend those claims in a manner consistent with Rule 11.

Given that these lawyers have tried these arguments so many times, I'm guessing they won't be giving up just yet. But it seems like this case is destined for the same end result as all the others.

Filed Under: cda 230, intermediary liability, material support, reynaldo gonzalez, section 230, terrorism
Companies: facebook, google, twitter, youtube

MPAA: To Save Free Speech, We Must Broadly Censor Free Speech

from the say-again? dept

Earlier this year, we wrote about a thought-provoking article by Zeynep Tufecki discussing how some people were deliberately trying to use the open "marketplace of ideas" to effectively attempt to poison the marketplace of ideas. Also mentioned in that article was an excellent Yale Journal Article called Real Talk About Fake News by Nabiha Syed, which raised similar issues, and wondered if we needed a new framework for thinking about free speech online. We later had Syed on our podcast to discuss this further. Both Tufecki and Syed were raising important, thought-provoking issues that were not at all like the usual attacks on free speech -- because neither was an attack on free speech. Instead, they were attempting to protect free speech by pointing out that the way we often frame these discussions may not be the most effective way of thinking about these issues -- and that might actually lead to the silencing of voices.

This has certainly spurred many more thoughtful discussions on these topics. But... it won't surprise you that some are now looking to exploit this open discussion in their own way. The MPAA recently filed some comments with the NTIA, and what's striking about them, is how they appear to be co-opting the language of Tufecki to attack free speech online, and push for legal changes that would lead to massive censorship. But, in doing so, they claim these changes are necessary to "protect" free speech. The MPAA's VP Neil Fried also put out a somewhat snarky blog post about the filing, in which the MPAA insists that CDA 230 and DMCA 512 must be changed because "the status quo does not seem to be working."

Is that so? CDA 230 became law in 1996. DMCA in 1998. Let's take a look at how movie box office revenue has been over the years since (2018 numbers are projected based on tickets so far):

I don't know, Neil, but it sure looks like Hollywood is doing just fine under these conditions. But, the MPAA has basically invested so much of its identity into the idea that infringement is an existential threat, that it has to keep going with it. Remember, this is the same organization that insisted the VCR was going to be "the Boston Strangler" to the movie industry -- and that was said in Congressional testimony just four years before home video revenue surpassed box office revenue. So, the MPAA does not exactly have a credible track record on claiming that the threat of piracy is a real problem for the industry. But, it just can't let things go.

So now it's trying again with this comment to NTIA. And I find it notable that it appears to be trying to co-opt the framing that Tufecki used in order to argue for a regime that would stamp out free speech online:

Responsible businesses refusing to facilitate such activity are not squelching speech. They are not stifling speakers wishing to communicate ideas, but thwarting culprits engaged in malfeasance. In fact, curbing such illicit activity promotes free expression by creating a safer, virtual forum where individuals feel comfortable to engage and communicate. In this sense, it is leaving lawlessness and bullying unchecked that is chilling free speech.

But, of course, a large part of the problem is that the MPAA's entire framing here is simply incorrect. It claims that platforms have no incentive to clean themselves up -- which is laughable when you consider just how far various internet companies have bent over backwards to try to appease everyone complaining about the crap on their platforms.

Many of the platforms are not living up to that bargain, shielded behind the broadly interpreted limits on liability that ensure few if any consequences, and failing to apply the same innovation to address internet harms that they do to other areas of their business.

This statement has zero basis in reality. Of course all of the major internet platforms regularly moderate content, and these days are under tremendous public pressure from basically all sides, to "do something" about content deemed dangerous. In fact, the worries about over-censorship from this kind of pressure and motivation is already well documented. Hilariously, the MPAA pretends that the platforms don't have much incentive to do anything -- which ignores all of the pressure from their own users, the media, politicians and more.

Bizarrely, later in the filing, the MPAA admits that platforms are, in fact, moderating content heavily (something that it spends pages insisting isn't happening). Yet, when it does so, the reasoning is equally perplexing:

The rebuttal is often that there is a risk that efforts to combat illicit conduct online will be overbroad, and inadvertently chill speech. But the platforms appear increasingly willing to curb things like hate speech. As odious as such speech is, it is quintessentially expressive. Efforts to combat it are fraught with challenges of under- and over-inclusiveness. Such activity is more susceptible to a chilling speech argument than attempts to curtail clearly illicit conduct, which present a brighter line.

So... let's get this straight. The platforms have no incentive to get rid of illegal content on their platforms -- even though all of them do so. And, to prove that there's no problem with overbroad censorship, we'll point to the fact that they do the kind of moderation we previously said they don't... and then admit that that moderation itself is chilling speech. Incredible.

The MPAA seems so wedded to its desire to take away the DMCA safe harbor and the CDA immunity provisions that it really doesn't care that no mainstream platform is eagerly courting "illegal" content. But, in order to undermine the open internet, and push for one in which all things must be licensed, it has to keep up the charade that platforms encourage illegal behavior and refuse to deal with it. And it's adopting the language of those who were trying to have a more serious conversation about dealing with bad actors online. It's the ultimate troll move.

Filed Under: bad behavior, cda 230, censorship, dmca, dmca 512, free speech, incentives, intermediary liability, marketplace of ideas
Companies: mpaa