As Expected Senate Overwhelmingly Passes Unconstitutional SESTA Bill, Putting Lives In Danger

from the total-failure dept

This was not unexpected, but earlier today the Senate easily passed SESTA/FOSTA (the same version the House passed a few weeks ago) by a 97 to 2 vote -- with only Senators Ron Wyden and Rand Paul voting against it. We've explained in great detail why the bill is bad. We've explained in great detail why the bill won't stop sex trafficking and will actually put sex workers' lives in more danger, while also stomping on free speech and the open internet at the same time (which some see as a feature rather than a bug). The Senate declined to put any fixes in place.

Senator Wyden, who had originally offered up an amendment that would have fixed at least one big problem with the bill (clarifying that doing any moderation doesn't subject you to liability for other types of content) pulled the amendment right before the vote, noting that there had been a significant, if dishonest, lobbying effort to kill those amendments, meaning it had no chance. He did note that because of the many problems of the bill, he fully expects that these issues will be revisited shortly.

As for the many problems of the bill... well, they are legion, starting with the fact that multiple parts of the bill appear to be unconstitutional. That's most obvious in the "ex post facto" clause that applies the new criminal laws to activities in the past, which is just blatantly unconstitutional. There are some other serious questions about other parts of the bill, including concerns about it violating the First Amendment as well. It seems likely that the law will be challenged in court soon enough.

In the meantime, though, the damage here is real. The clearest delineation of the outright harm this bill will cause can be seen in a Twitter thread from a lawyer who represents victims of sex trafficking, who tweeted last night just how much damage this will do. It's a long Twitter thread, but well worth reading. Among other things, she notes that sites like Backpage were actually really useful for finding victims of sex trafficking and in helping them get out of dangerous situations. She talks about how her own clients would disappear, and the only way she could get back in touch with them to help them was often through these platforms. And all that will be gone, meaning that more people will be in danger and it will be that much harder for advocates and law enforcement to help them. She similarly notes that many of the groups supporting SESTA "haven't gotten their hands dirty in the field" and don't really understand what's happening.

That's true on the internet side as well. Mike Godwin highlights the history before CDA 230 was law and the kinds of problems that come about when you make platforms liable for the speech of their users.

In Cubby, a federal judge suggested (in a closely reasoned opinion) that the proper First Amendment model was the bookstore – bookstores, under American law, are a constitutionally protected space for hosting other people’s expression. But that case was misinterpreted by a later decision (Stratton Oakmont, Inc. v. Prodigy Services Co., 1995), so lawyers and policy advocates pushed to include platform protections in the Telecommunications Act of 1996 that amounted to a statutory equivalent of the Cubby precedent. Those protections, in Section 230, allowed platform providers to engage in certain kinds of editorial intervention and selection without becoming transformed by their actions into “publishers” of users’ content (and thus legally liable for what users say).

In short, we at EFF wanted platform providers to be free to create humane digital spaces without necessarily acquiring legal liability for everything their users said and did, and with no legal compulsion to invade users’ privacy. We argued from the very beginning, about the need for service providers to be just, to support human rights even when they didn’t have to and to provide space and platforms for open creativity. The rules we worked to put into place later gave full bloom to the World Wide Web, to new communities on platforms like Facebook and Twitter and to collaborative collective enterprises like Wikipedia and open-source software.

Meanwhile the Senators who passed the bill will completely forget about all of this by next week, other than to pat themselves on the back and include 3 seconds in their next campaign ad about how they "took on big tech to stop sex trafficking." And, of course, people in Hollywood are laughing at how they pulled a fast one on the internet, and are already strategizing their next attacks on both CDA 230 and DMCA 512 (expect it soon).

None of those celebrating realize how much damage they've actually caused. They think they've "won" when they really did astounding levels of damage to both victims of sex trafficking and free speech in the same effort.

Filed Under: cda 230, intermediary liability, rand paul, ron wyden, sesta, sex trafficking

Did Facebook Violate SESTA By Promoting Child Abuse Videos?

from the maybe-rethink-that-support,-sheryl dept

Facebook -- and Sheryl Sandberg in particular -- have been the most vocal supporters of SESTA. Sandberg wrote a bizarre Facebook post supporting the horrible SESTA/FOSTA Frankenstein bill the day it was voted on in the House. In it, she wrote:

I care deeply about this issue and I’m so thankful to all the advocates who are fighting tirelessly to make sure we put a stop to trafficking while helping victims get the support they need. Facebook is committed to working with them and with legislators in the House and Senate as the process moves forward to make sure we pass meaningful and strong legislation to stop sex trafficking.

Which is weird, given that the bill does nothing to actually stop sex trafficking, but it does place potentially criminal liability on any internet site that knowingly facilitates sex trafficking. Like... say... Facebook. You see, last week, there was a bit of a kerfuffle when Facebook suddenly started pushing horrific child abuse videos on its users.

The social network’s search suggestions, which are supposed to automatically offer the most popular search terms to users, apparently broke around 4am in the UK, and started to suggest unpleasant results for those who typed in “video of”.

Multiple users posted examples on Twitter, with the site proposing searches including “video of girl sucking dick under water”, “videos of sexuals” and “video of little girl giving oral”. Others reported similar results in other languages.

While Facebook has since apologized for this and claimed that it is committed to taking down such content, how hard would it be for someone to make a case that the company had just engaged in pushing child pornography on unsuspecting users, and there could be a credible claim that many of the videos involved victims of sex trafficking.

And, of course, this comes right after another possibly SESTA-violating fiasco at Facebook in which the company sent out a survey about whether the site should allow adult men to ask for sexual pictures of teenaged girls. No, really.

On Sunday, the social network ran a survey for some users asking how they thought the company should handle grooming behaviour. “There are a wide range of topics and behaviours that appear on Facebook,” one question began. “In thinking about an ideal world where you could set Facebook’s policies, how would you handle the following: a private message in which an adult man asks a 14-year-old girl for sexual pictures.”

The options available to respondents ranged from “this content should not be allowed on Facebook, and no one should be able to see it” to “this content should be allowed on Facebook, and I would not mind seeing it”.

A second question asked who should decide the rules around whether or not the adult man should be allowed to ask for such pictures on Facebook. Options available included “Facebook users decide the rules by voting and tell Facebook” and “Facebook decides the rules on its own”.

After this became public and people called it out, Facebook also claimed that this was "an error," but it seems like it wouldn't take a genius lawyer or prosecutor to argue that the company choosing to send out just such a survey shows it facilitating sex trafficking. I mean, it was directly asking if it should allow for the sort of activity directly involved in grooming victims for sex trafficking.

Oh, and remember, that even while this is blatantly unconstitutional, SESTA says the law applies retroactively -- meaning that even though all of this happened prior to SESTA becoming law, Facebook is potentially still quite guilty of violating the poorly drafted criminal law it is loudly supporting.

Filed Under: child abuse, grooming, sesta, sex trafficking, sheryl sandberg, suggested videos, videos
Companies: facebook

Hollywood's Behind-The-Scenes Support For SESTA Is All About Filtering The Internet

from the you-know-it dept

Over at the EFF blog, Joe Mullin has an excellent discussion on why Hollywood is such a vocal supporter of SESTA, despite having nothing to do with Hollywood. It's because the bill actually accomplishes a goal that Hollywood has dreamed about for years: mandatory filtering of all content on the internet.

For legacy software and entertainment companies, breaking down the safe harbors is another road to a controlled, filtered Internet—one that looks a lot like cable television. Without safe harbors, the Internet will be a poorer place—less free for new ideas and new business models. That suits some of the gatekeepers of the pre-Internet era just fine.

The not-so-secret goal of SESTA and FOSTA is made even more clear in a letter from Oracle. “Any start-up has access to low cost and virtually unlimited computing power and to advanced analytics, artificial intelligence and filtering software,” wrote Oracle Senior VP Kenneth Glueck. In his view, Internet companies shouldn’t “blindly run platforms with no control of the content.”

That comment helps explain why we’re seeing support for FOSTA and SESTA from odd corners of the economy: some companies will prosper if online speech is subject to tight control. An Internet that’s policed by “copyright bots” is what major film studios and record have advocated for more than a decade now. Algorithms and artificial intelligence have made major advances in recent years, and some content companies have used those advances as part of a push for mandatory, proactive filters. That’s what they mean by phrases like “notice-and-stay-down,” and that’s what messages like the Oracle letter are really all about.

There's a lot more in Mullin's post, but it actually goes much beyond that. Every rock you lift up in looking at where SESTA's support has come from, you magically find Hollywood people scurrying quietly around. We've already noted that much of the initial support for SESTA came from a group whose then board chair was a top lobbyist for News Corp.. And, as we reported last month, after a whole bunch of people we spoke to suggested that much of the support for SESTA was being driven by former top News Corp. lobbyist, Rick Lane, we noticed that a group of people who went around Capitol Hill telling Congress to support SESTA publicly thanked their "partner" Rick Lane for showing them around.

In other words, it's not just Hollywood seeing a bill that gets them what it wants and suddenly speaking up in favor of it... this is Hollywood helping to make this bill happen in the first place as part of its ongoing effort to remake the internet away from being a communications medium for everyone, and into a broadcast/gatekeeper dominated medium where it gets to act as the gatekeeper.

And if you think that Hollywood big shots are above pumping up a bogus moral panic to get their way, you haven't been paying attention. Remember, for years Hollywood has also pushed the idea that the internet requires filters and censorship for basically any possible reason. Back during the SOPA days, it focused on "counterfeit pharmaceuticals." Again, not an issue that Hollywood is actually concerned with, but if it helped force filters and stopped user-generated content online, Hollywood was quick to embrace it.

Remember, after all, that the MPAA set up Project Goliath to attack Google, and a big part of that was paying its own lawyers at the law firm of Jenner & Block to write demand letters for state Attorneys General, like Mississippi Attorney General Jim Hood, who sent a bogus subpoena and demand letter to Google (written by the MPAA's lawyers and on the MPAA's bill). And what did Hood complain about to Google in that letter written by the MPAA's lawyers? You guessed it:

Hood accused Google of being “unwilling to take basic actions to make the Internet safe from unlawful and predatory conduct, and it has refused to modify its own behavior that facilitates and profits from unlawful conduct.” His letter cites not just piracy of movies, TV shows and music but the sale of counterfeit pharmaceuticals and sex trafficking.

The MPAA has cynically been using the fact that there are fake drugs and sex trafficking on the internet for nearly decade to push for undermining the core aspects of the internet. They don't give a shit that none of this will stop sex trafficking (or that it will actually make life more difficult for victims of sex trafficking). The goal, from the beginning was to hamstring the internet, and return Hollywood to what it feels is its rightful place as the gatekeeper for all culture.

Indeed, our post earlier about Senator Blumenthal's bizarre email against a basic SESTA amendment from Senator Wyden to fix the "moderator's dilemma" aspect was quite telling. He falsely claimed that adding in that amendment -- that merely states that the act of doing some moderation or filtering doesn't append liability to the site for content they fail to filter or moderate (which is the crux of CDA 230's "Good Samaritan" language) -- would create problems for Hollywood. Indeed, a key part of Blumenthal's letter is that this amendment "has the potential to disrupt other areas of the law, such as copyright protections."

But that makes zero sense at all. CDA 230 does not apply to copyright. It doesn't apply to any intellectual property law, as intellectual property is explicitly exempted from all of CDA 230 and has been from the beginning. Nothing in the Wyden amendment changes that. And... it does seem quite odd for Blumenthal to suddenly be bringing up copyright in a discussion about CDA 230, unless it's really been Hollywood pushing these bills all along, and thus in Blumenthal's mind, SESTA and copyright are closely associated. As Prof. Eric Goldman notes, talking nonsensically about copyright in this context appears to be quite a tell by Senator Blumenthal.

Filed Under: broadcast, cda 230, censorship, communications, dmca, filtering, fosta, hollywood, intermediary liability, sesta
Companies: mpaa

SESTA's Sponsors Falsely Claim That Fixing SESTA's Worst Problem Harms Hollywood

from the say-what-now? dept

Earlier today, in discussing a long list of possible fixes for SESTA, we noted that the only one that even has a remote chance (i.e., the only fix that actually has the potential of being considered by the Senate) is Senator Wyden's amendment, which is designed to solve the "moderator's dilemma" issue by clarifying that merely using a filter or doing any sort of moderation for the sake of blocking some content does not automatically append liability to the service provider for content not removed. Senator Portman -- the sponsor of the bill -- has insisted (despite the lack of such language in the bill) that this is how SESTA should be interpreted. Specifically, Portman stated that SESTA:

...does not amend, and thus preserves, the Communications Decency Act’s Good Samaritan provision. This provision protects good actors who proactively block and screen for offensive material and thus shields them from any frivolous lawsuits.

Except, that's not what the bill actually says. Which is why the language in the Wyden amendment is so important. It basically adds into the law what Portman pretends is already there.

Thus, you would think that Portman and the other Senators backing SESTA should also support the Wyden amendment. They do not. Senator Richard Blumenthal -- who has spent years attacking the internet, and who has already stated that if SESTA kills small internet businesses he would consider that a good thing -- is opposed to the amendment, and sent out a letter supposedly co-signed by other SESTA supporters:

Senators Blumenthal, McCaskill and the other bipartisan sponsors of SESTA oppose the Wyden amendments. These amendments threaten to derail the bill and they would make it even more difficult than current law to hold websites that sexually traffic minors like Backpage.com accountable….The safe harbor amendment would provide websites like Backpage.com with even stronger legal protections than they enjoy today. It also has the potential to disrupt other areas of the law, such as copyright protections. This “bad Samaritan” amendment is not a clarification or a protection for good actors–it is an additional tool to protect traffickers and illegal conduct online.

Here's the problem with that. Almost everything stated above is 100% factually wrong. And not just a little bit wrong. It's so wrong that it raises serious questions about whether Blumenthal understands some fairly fundamental issues in the bill he's backing. Professor Eric Goldman has a pretty concise explanation of everything that's wrong with the statement, noting that it -- somewhat incredibly -- shows that SESTA's main sponsors don't even understand the very basic aspects of CDA 230, as they insist on changing the law.

There are at least three obvious problems with this email. First, the amendment would indeed protect good actors because it would eliminate the Moderator’s Dilemma. The authors of this email still don’t understand, or have decided to ignore, the Moderator’s Dilemma. Second, the proposed amendment would not help Backpage–at all. The Senate Investigative Committee report highlighted voluminous facts about Backpage’s knowledge, so I can’t see how Backpage’s purported filtering would come up in any SESTA/FOSTA enforcement.

Third, the email indicates that the amendment “has the potential to disrupt other areas of the law, such as copyright protections.” This is where the screen freezes, the record scratches, and the narrator says in a deadpan, “No, it wouldn’t.” Section 230(e)(2) expressly carves out “intellectual property” claims–including copyright–from Section 230’s coverage. Anyone with even a basic understanding of Section 230 knows this. Yet, the sponsors, on the eve of a decisive vote with monumental stakes for Section 230, appear to be demonstrating a fundamental misunderstanding of what Section 230 says and does. That is very, very confidence-rattling.

Worse, the email has it precisely backwards. The amendment would HELP, not DISRUPT, copyright protection efforts. If services stuck in the Moderator’s Dilemma decide to turn off proactive moderation efforts, that will include turning off copyright filtering. In other words, SESTA/FOSTA may have the unwanted consequence of encouraging Internet services to do LESS copyright filtering. (This is just one of many examples of my claim that SESTA/FOSTA may counterproductively increase anti-social content). The amendment would fix that by not holding their copyright filtering efforts against Internet services for sex trafficking or prostitution promotion purposes, i.e., by filtering for copyright, the Internet services won’t fear that a court will ask why their filters missed promotions for sex trafficking or prostitution. So if Congress wants to avoid “disrupting” efforts to combat online copyright infringement, the amendment is essential.

This isn't a matter of differing opinions. This is the main backers of a bill to drastically change CDA 230 insisting that (1) their bill does something it does not and (2) a fix to their bill that would bring it into line with what they claim their bill does... actually does a bunch of things it absolutely does not.

At this point, you have to start wondering what the hell is happening in the Senate, and in particular in Senator Blumenthal's office. He is not just doing a big thing badly -- he is gleefully spouting the exact opposite of basic facts about both the existing law, and the bill he sponsored. I know that politicians aren't exactly known for their honesty, but he seems to be taking this to new levels -- and causing massive harm in the process.

Filed Under: cda 230, claire mccaskill, copyright, fosta, intermediary liability, moderator's dilemma, richard blumenthal, rob portman, ron wyden, sesta

Can SESTA Be Fixed?

from the will-it-be-fixed? dept

It appears that sometime this week (or even possibly today), the Senate is unfortunately likely to vote (perhaps by an overwhelming margin) for SESTA, despite the fact that it's a terribly drafted bill which no one can explain how it will actually stop sex trafficking. Indeed, it's a bill that many victims advocates are warning will not just make problems worse, but will put lives in danger. And that's leaving aside all of the damage it will do to free speech and tons of websites on the internet.

Much of this could have been avoided if anyone in Congress were actually interested in understanding how the internet worked, and how to write a bill that actually addressed problems around sex trafficking -- rather than buying into a false narrative (pushed mainly by Hollywood) that the liability protections of CDA 230 were magically responsible for sex traffickers using the internet. Two academics who are probably the most knowledgeable experts on intermediary liability, Daphne Keller at Stanford and Eric Goldman at Santa Clara University, have each posted thoughts on how to "salvage" SESTA. If Congress were serious, it would listen to them. But that's a big "if."

Let's start with Keller's suggestions that she helpfully put into a Twitter thread:

First up, she takes on the problematic "knowledge" standard used in SESTA/FOSTA. Again, a key part of the bill is that internet sites can become liable if they have "knowledge" of sex trafficking activity that is done on the platform. But what the hell is meant by "knowledge"? In other parts of the law, even when it's more spelled out, there are examples of legal cases lasting years while everyone wrangles over what "knowledge" means. In the copyright context, Viacom sued YouTube and were in court for more than half a decade, with much of that being over the simple question of whether knowledge meant "specific" knowledge or "general" knowledge. SESTA could solve many of its problems if it made its knowledge standard clear -- and, as Keller notes, one that wouldn't require "teams of lawyers."

Indeed, this is perhaps the largest problem with SESTA (and may also doom the bill in court). Prosecutors and the DOJ have already raised concerns about the standards in the bill, and even the politicians supporting it toss out very, very different definitions. Senator Rob Portman has claimed it requires "intent." Meanwhile, Rep. Cathy McMorris Rodgers claims that the standard is "knowingly turning a blind eye." That's... extremely different. Senator Cory Booker claims its "a high standard" that requires "proving beyond a reasonable doubt." All of those mean very different things, and when you have the politicians backing the bill all spouting nonsense, and the law itself doesn't clarify, you're making a huge mess.

Keller's second suggestion is to add in real and meaningful penalties for bad faith accusers as well as an appeals process for the accused. This is also a big deal. Again, looking at the DMCA, we've talked about how the one part of that law dealing with bad faith accusations is basically toothless and almost never useful. And thus, the DMCA is abused all the time. We have all those lessons to learn from -- and it appears that Congress is ignoring them.

Up next would be a clear statement that the law does not require monitoring all speech. Such a mandatory monitoring system would have tremendous First Amendment issues -- but unfortunately it seems likely that some may read the bill to require mandatory filtering (oddly, others will read it as saying you shouldn't use filters at all to avoid knowledge -- and that dichotomy of results should just emphasize how poorly the bill was drafted).

Fourth, Keller suggests making it clear that merely monitoring should not be deemed as knowledge (this could be seen as related to clarifying the knowledge standard as well). On that front, there may be an amendment on the table that could help (see below...).

Fifth: the bills should make it clear that it applies to service providers that are end user facing, rather than further up the stack. Again, here's a lesson that we've learned from takedowns in the copyright space. As Hollywood got more and more upset about various things online it continued to move up the stack beyond services to hosting companies, data centers, registrars and even ICANN itself. We shouldn't allow SESTA to allow for the same nonsense.

Finally, Keller suggests that if we must go through with such a bad bill, there should be some requirements on transparency about the impacts for both tech platforms and government agencies, so that we can look back on the bill and determine what it did -- both good and bad.

Will Congress take any of these steps? It doesn't look like it.

As for Goldman, his post focuses on an amendment that Senator Wyden is offering. Last I heard, it appears that the Senate may actually consider this amendment. And it's an amendment similar to one that Goldman himself suggested -- with a very modest addition to SESTA clarifying the whole question of does "monitoring" equal "knowledge." Specifically the amendment would add the following language:

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove material the provider or user considers objectionable shall not be considered in determining the criminal or civil liability of the provider or user for any material that the provider or user has not removed or restricted access to.

As Goldman notes, this one amendment would fix the worst problems of SESTA (while still leaving in place plenty of others). If you at least support making SESTA less horrible, he suggests calling your Senators and letting them know:

If you think this is a meritorious fix to a bad bill, then *immediately* call your Senators (you have 2, remember!) and tell them:

1) You oppose SESTA/FOSTA because it’s not clear the law actually helps sex trafficking victims; and

2) You want your Senator to support Sen. Wyden’s proposed content moderation amendment because it ensures online services will keep being the first line of defense in the fight against sex trafficking.

Note 1: This issue could be moot as early as Monday afternoon, so literally CALL NOW.

Note 2: CALL, not email. The EFF has made it easy for you to do.

It seems quite likely the bill is going to pass very soon and then get signed into law. The fact that there are simple and reasonable ways to improve on the bill, which Congress is blatantly ignoring, is problematic.

Filed Under: cda 230, daphne keller, eric goldman, fosta, intermediary liability, knowledge, knowledge standard, moderator's dilemma, rob portman, ron wyden, sesta

Just As Everyone's Starting To Worry About 'Deepfake' Porn Videos, SESTA Will Make The Problem Worse

from the what-is-congress-thinking? dept

Over the last few months, if you haven't been hiding under a tech news rock, you've probably heard at least something about growing concerns about so-called "Deepfakes" which are digitally altered videos, usually of famous people edited into porn videos. Last month, Reddit officially had to ban its deepfakes subreddit. And, you can't throw a stone without finding some mainstream media freaking out about the threat of deepfakes. And, yes, politicians are getting into the game, warning that this is going to be used to create fake scandals or influence elections.

But, at the same time, many of the same politicians suddenly concerned about deepfakes are still pushing forward with SESTA. However, as Charles Duan notes, if SESTA becomes law, it will make it much more difficult for platforms to block or filter deepfakes:

Under it, websites that have “knowledge” that some posted material relates to illegal sex-trafficking can be deemed legally responsible for that material. What it means for a website to have “knowledge” remains an open question, especially if the site uses automatic or artificial intelligence systems to review user posts. Therefore, this language opens the door to a potentially wide range of lawsuits and prosecution.

The worst case scenario is that, to avoid having “knowledge” of sex trafficking, Internet services will stop content-moderation entirely. This scenario, which some experts call the “moderator’s dilemma,” would most likely affect smaller websites—including message boards and forums that serve special interests—that can’t afford the advanced filtering systems or armies of content editors that the big sites use. These smaller sites have already faced difficult problems with content moderation, and would be even less likely to spend resources on cleaning up after their users if doing so might lead to a lawsuit.

Duan points out that it goes beyond just the moderator's dilemma aspect of this. Even if sites do decide to moderate, at this point Congress is making it clear that whatever moral panic of the day that excites it may lead to new laws demanding action. But if they're desperately chasing the last problem, they have even less time to deal with the new one.

One of the good things about CDA 230, is that it actually allows platforms to experiment and try out different ways of moderating content. If they fail (as they often do!), they hear about it from their users, or the press, or from politicians. In short, they're allowed to experiment, but have incentives to try to find the right balance. But if Congress is enacting carve-outs that make any failure to properly filter a crime, then it becomes almost impossible, and the incentive is just to avoid doing anything at all. That's not at all healthy.

Filed Under: cda 230, deep fakes, deepfakes, moderator's dilemma, porn, sesta

Sex Workers And Survivors Raising The Alarm About SESTA: It Will Literally Put Their Lives In Danger

from the granstanding-putting-people's-lives-at-risk dept

Last week I asked for anyone to explain how SESTA would (in any way) reduce sex trafficking? Not a single person even tried to answer. Because there is no answer. Sex trafficking is already illegal, and yet people do it. Nothing in SESTA makes sex trafficking more illegal. Nothing in SESTA makes it easier for law enforcement to find or crack down on sex trafficking or to help the victims of sex trafficking. Indeed, as we've detailed, it does the exact opposite. It puts criminal liability on internet sites that are somehow used in conjunction with prostitution (going beyond just trafficking, thanks to the FOSTA addition to SESTA), and uses a vague, poorly drafted, unclear "knowledge" standard that none of SESTA's supporters can adequately explain or define. As we noted, from our experience in covering what happens when you pin liability on a platform instead of its users -- especially using vague and unclear standards -- bad things usually result.

But over the past few days, it's becoming increasingly clear just how dangerous this bill could actually be. Last week we wrote about Alana Massey's powerful article on just how much damage SESTA could actually do to sex workers, including shutting down the various resources that they use to protect themselves, keep safe, or even get information to get out of sex work (for those who wish to do so). It also will mean that sites that provide tools and information for victims of sex trafficking may also be forced to shut down. It's hard to see how that's a good thing.

Over at Jezebel, Tracy Clark-Flory notes that the bill "is a disaster for basically everything it touches," and highlights how survivors of sex work have set up their own Survivors Against SESTA website that lays out in stark detail just how dangerous SESTA will be for everyone.

Shutting down websites that sex workers use to work indoors and screen clients more safely does not stop traffickers. To the contrary, this only drives sex workers, including those who are trafficked, to find clients on the street where they face higher rates of violence, HIV, Hepatitis C and sexually transmitted infections, and exploitation.

These websites hold vital resources for trafficking investigations.

There are no industry standards to stop traffickers from using websites for exploitation. This legislation does not get us closer to that goal, and instead makes it harder for police, prosecutors, or websites to identify and help victims.

They also note that SESTA will disproportionately harm those in the LGBTQ community. It highlights a letter from the National Center for Transgender Equality, the National Center for Lesbian Rights and a bunch of other groups noting:

Meaningful anti-trafficking work should not make those in the sex trade more susceptible to violence and exploitation. After the closure of RedBook and Rentboy.com, sex workers were instantly thrown from the online spaces and communities which provided the ability to screen clients, find out safety and health information and form community. The ability to access online platforms to advertise means that sex workers are able to screen clients for safety, negotiate boundaries such as condom use, and work in physically safer spaces. A 2017 study from West Virginia University and Baylor University found a 17% drop in female homicide rates correlated to Craigslist opening its Erotic section – because it made sex work safer. Taking away online platforms moves sex workers into more vulnerable and violent conditions, including street-based work where rates of physical and sexual violence and exploitation are significantly higher.

Over and over again supporters of SESTA have framed anyone against is as somehow being supporters of sex trafficking -- which is both wrong and blatantly intellectually dishonest. One can be very much against the exploitation of trafficking victims while simultaneously recognizing that SESTA and FOSTA are horrible ways to try to deal with those issues, and to highlight how those bills will not help, and will cause an awful lot of very real damage, including putting people's lives at risk. In response, some SESTA supporters will rightly claim that sex trafficking victims lives are also at risk -- which is true... but that brings us back to the simple fact that nothing in SESTA actually helps victims of sex trafficking. It just maks it harder for law enforcement to find them, help them and to arrest those responsible for the trafficking in the first place. Instead, it gives law enforcement incentives to go after internet companies, while the sex trafficking continues, often in places that are more difficult for law enforcement to track, and while making it much harder for those involved to get access to the information they need.

Elsewhere, groups that work with victims of sex trafficking are speaking out on how much damage these bills would do to the actual victims. They even point out that the demonized Backpage was essential in helping bring traffickers to justice:

Megan Mattimoe, executive director and staff attorney at Advocating Opportunity, which assisted 150 victims of trafficking this past year, says she has seen Backpage provide information about trafficking victims captured in ads along with data on advertisers to aid in prosecutions. “In our cases,” she says, “Backpage not only complied with prosecutors’ requests, but they would also send someone to trial to testify that those business records were authentic.” Since Backpage closed its adult advertising section in January 2017, Mattimoe says, her organization has seen “victims advertised on sites housed outside the U.S.,” where federal prosecutors have neither subpoena power nor Backpage’s cooperation.

Again, it is difficult to see how this is helping victims of sex trafficking in any way at all.

Many more people are speaking out on Twitter using the hashtag #LetUsSurvive. One of the organizers of that campain, Lola Li, gave a fascinating interview in which she discusses why she is so worried about SESTA/FOSTA and the impact it will have on survivors and marginalized communities:

...the laws that prosecutors need to go after traffickers ALREADY EXIST. We don’t need more laws. That’s not going to address the root causes of the problem. This bill is not about fighting trafficking. It’s a way for self-interested politicians and self-interested “anti-trafficking” (rolling my eyes, as if anyone could be pro-trafficking) groups to pat themselves on the back while actually doing nothing to help.

Unfortunately, from all indications, almost no one in the Senate cares about what this bill will actually do. They've decided that since the bill says it's against sex trafficking, it must actually be against sex trafficking, and no matter how many times people point to the damage it will actually do to victims, they're going to vote for it, and then hide from and ignore the very real damage they've created.

Filed Under: cda 230, fosta, intermediary liability, resources, sesta, sex trafficking, sex workers

If You Think SESTA Will Help Victims Of Sex Trafficking, Read This Now

from the congress-is-about-to-make-a-huge-mistake dept

Earlier this week, I asked for anyone to explain how SESTA would actually stop any sex trafficking. No one had an answer. In that post, I detailed how it would actually make it harder to stop sex trafficking on various platforms. That's not because I'm knowledgeable about sex trafficking -- but I have spent 20 years documenting what happens when you make platforms liable for the actions of their users. And the result is never what the people pushing for such liability expect. It's almost always incredibly counterproductive and dangerous.

But someone who does understand issues related to sex work and sex trafficking is Alana Massey, who has written a really fantastic piece detailing just how much harm SESTA will do to both sex workers and victims of sex trafficking. We've already discussed how FOSTA expands the scope of the law away from just "sex trafficking" to cover all sex work. And in bolting that together with SESTA, which punches a giant hole (surrounded by vague untested standards) into CDA 230, it also creates a ridiculous moderator's dilemma for any website. Massey details what that will actually mean.

... the new legislation would threaten to criminalize peer-to-peer resource sharing that makes people in sex work safer and more connected. The very websites that these bills enable law enforcement to criminalize are precisely where I found the generous communities and actionable advice I needed to get out of and avoid exploitative sex work situations going forward. Though the bill is meant to target sites hosting sex work advertisements, it covers online forums where sex workers can tip each other off about dangerous clients, find emergency housing, get recommendations for service providers who are sex worker-friendly, and even enjoy an occasional meme. These are often on the same websites where advertisements are hosted.

Before you say, "Just get rid of the ads, then," know that online ads themselves are one of the greatest tools for protecting yourself as a sex worker: They make it possible to screen clients, arrange safe indoor working conditions, and establish a communication record with clients that street-based work doesn't provide.

Massey has a lot more in that article about how important CDA 230 is, but that's the kind of stuff we cover all the time. What's more interesting are the details about just how much damage SESTA will do directly to the people it purports to "help." Oh, and she also debunks the moral panic leading up to the bill -- specifically the claim that's been repeated by multiple politicians and famous people pushing SESTA, that it's as easy to engage in sex trafficking today as it is to order a pizza. She tested out that claim:

The premise is that right this second and in your own hometown, it is totally possible to go online and buy a child for sexual slavery — that it's "as easy as ordering a pizza," according to Schumer. I put this claim to the test in my local area and surrounding counties via a set of searches on Backpage that have likely landed me on an FBI watch list. Not one lousy "kid," "minor," "teen," or "child" was available for purchase. Meanwhile, Domino's is at my house within 21 minutes of me placing an order, come hell or high water. It is almost as if perpetrators of human trafficking aren't really all that likely to advertise using photos of shackled minors.

And that leads into a much bigger point about just how damaging SESTA is going to be to those victims. I won't quote the whole thing (go read it!), but she directly takes on the propaganda film, I Am Jane Doe, which has been used widely to support SESTA, to explain how SESTA is likely to create more Jane Does, not fewer.

The term "Jane Doe" has two main uses: The first is referring to a woman in court, often a victim of sexual violence, who is not being legally identified in the proceedings. The second is referring to the unidentified corpses of women murder victims. These bills seek to destroy the few lines of defense people in the sex trades have to protect themselves from becoming Jane Does. These online resources are how I found people who could help me transition out of sex work safely. They didn't smuggle me out of a lurid foot fetish party in a suitcase under cover of night. They introduced me to editors and gave me some nice pointers on what I could write about when just starting out. My career trajectory was every bit as boring as most career trajectories are: often characterized by boredom and punctuated by both extreme satisfaction and intense desperation.

I don't feel especially moved to talk about the exploitative scenarios I mentioned above just so I can be summarily dismissed as either a liar or too damaged to speak for myself. I have turned my traumas into practical guidance for new sex workers to help them avoid similar situations. The legislation these celebrities are championing may soon make this healing and sharing process a criminal act punishable by years in prison.

There's so much more in the article worth reading -- including a detailed debunking of what various celebrities have been saying in support of SESTA. It's a must read for anyone who thinks SESTA is going to save lives. In all the writing I've done about SESTA, it's been from the perspective of wonky knowledge of how "intermediary liability protection" laws work -- which made it clear to me that laws like SESTA and FOSTA would backfire and be abused in various ways. Massey's piece has opened my eyes to the very specific ways in which these laws will create real harm for the victims the bill is supposedly trying to help. Please read it.

Filed Under: alana massey, cda 230, education, fosta, intermediary liability, resources, section 230, sesta, sex trafficking, victims

More People Realizing That SESTA Will Do A Lot More Harm Than Good

from the it's-a-problem dept

At this point, it seems fairly clear that Congress simply does not care that SESTA is going to do an awful lot of harm for almost no benefit at all, and is rushing towards a Senate vote. But more and more people outside of Congress are recognizing the problems that it will cause. While all of the supporters of the bill are insisting they're doing it to "protect" victims of sex trafficking, as we've explained SESTA will almost certainly make their lives worse -- putting them at much more risk while doing little to nothing to stop actual trafficking. The Daily Dot has a good article talking to advocates for victims of sex trafficking and sex workers, talking about the damage SESTA will cause:

In her 40 years of involvement with the industry—formerly as a trafficking victim, a consensual sex worker, and currently as an advocate and outreach provider—DiAngelo has seen many similar efforts by the government and law enforcement to crack down on the establishments and platforms sex workers use to secure clients. Every time, she explains, the end result is the same.

“When you take away a worker’s available options, they have to drop down to the next-best available option. Nobody thinks about that,” DiAngelo says. “But we don’t disappear because they get rid of our work. Our food disappears, our security, our housing … our safety, that disappears, but we don’t and our need for services definitely doesn’t disappear.” Those things, she says, only grow.

Finding work from an ad posted on the internet means there’s a documented trail linking a sex worker and the client; it means the sex worker has the time to do due diligence, checking in with the client’s references and consulting a community of peers to determine whether or not this person is safe. When those sites shut down, as they periodically do, sex workers look elsewhere for clients—most often, on the street.

And that leads to much more dangerous situations:

Fearful of arrest, sex workers move off main streets and into areas where they’re more difficult to spot. Under pressure to make money, they have less time to assess the situation at hand, leaving them vulnerable to violent predators and, indeed, traffickers with a penchant for exploiting people in desperate situations. When sites like RedBook and Backpage shut down, “the life of the trafficker does not change at all,” DiAngelo says. “They still have their product, which is the victim.”

So again, it's unclear why people think that attacking the platforms (and not the actual traffickers) will help the victims at all.

Meanwhile, following the lead of the Wall Street Journal, the LA Times has released an editorial detailing what a disaster SESTA is and how much harm it will do:

The internet has been a tremendous force for good in the world, creating untold opportunities to connect, communicate, learn, create and make a living. But many of the properties of the net that make good things possible also enable less desirable pursuits, and even evil ones, on a vast scale. Congress is now focused on one of the worst of those pursuits: sex trafficking. It's taking particular aim at websites like Backpage.com that run ads for prostitutes, some of whom have been shown to be underage or adults who are effectively enslaved. But in their efforts to give prosecutors and victims more power in court, lawmakers are poised to weaken a legal protection that has helped produce much of what's good about the net.

The LA Times piece, as did the WSJ piece, also notes that Backpage -- the site that backers of the bill admitted they're targeting, despite the fact that it has already shut down its adult ads section -- still faces two big legal challenges that will show the site is not immune under CDA 230:

The irony is that, as a Senate investigation last year contended, Backpage may not be entitled to immunity under Section 230. It's now facing a Justice Department investigation and a renewed lawsuit by trafficking victims in Boston. If Congress simply cannot wait to see how those cases turn out, there is a middle ground — it could give state attorneys general clearer authority to go after websites that violate federal sex trafficking laws. But if it insists on carving out a bigger hole in Section 230 to battle sex trafficking, it's only a matter of time before it comes under pressure to address another evil, and then another, and then another. And before you know it, there will be nothing left of Section 230.

It really is a big question that no one in Congress seems to want to answer. Why can't Congress wait to see if either the DOJ or the court in Boston can get to Backpage -- because if they can, then there's really no argument for SESTA at all (and, as noted in the first half of this post, it's not clear what the argument is for SESTA anyway). However, in talking to people on the Hill, it appears the general opinion of our lawmakers is that they don't really care if the bill doesn't do anything good. They really want to claim they've "done something" and "going after sex trafficking" (even if it will actually make the problem worse) leads to good headlines. Also, the impression I've gotten is they're sick of people arguing about how bad this bill will be, so they want to pass it just to get it off their plates -- which seems like a bad way to make laws to me. But what do I know?

Filed Under: cda 230, intermediary liability, sesta, sex trafficking, sex workers

Can Someone Explain How SESTA Will Stop Sex Trafficking?

from the questions,-questions dept

Last week I got into a bit of a debate with a SESTA supporter about the bill, which boiled down to me saying that the bill won't do what it claims, will likely make things worse for victims of sex-trafficking, and will also have massive consequences for the internet and speech online. And the response from the person I was debating was "but my side has all these anti-sex-trafficking groups supporting SESTA." That's not exactly a response to any of the points that I raised. As we've noted from the very start, we may not be experts in sex-trafficking, but we do know how the internet works -- and how laws on intermediary liability impact the internet and content online. And nothing in SESTA will work the way its supporters seem to think it will work.

So I want to directly ask here the same questions I asked the individual I was debating (which he refused to answer before tossing out a few ad hominems and suggesting that I'm not worth talking to because I'm "a blogger."): what in SESTA will actually stop or limit sex-trafficking? Because as far as I can tell, it does absolutely nothing to stop sex-trafficking. It does not target sex-traffickers in any way. Supporters of the bill claim or appear to believe that it will stop sex-trafficking by stopping websites from allowing anyone to engage in sex-trafficking or advertising sex-trafficking victims on their websites. But that's not at all how the bill works.

It's (obviously!) already illegal to engage in sex-trafficking. And it's already illegal to advertise sex-trafficking. And law enforcement can already go after those doing both of those things. And yet, miraculously, both of those things still occur frequently online. Now, a reasonable response to this would be to suggest that law enforcement has a good source of information with which to investigate, arrest, and prosecute sex traffickers, since the necessary information is apparently so easily obtained online.

So, what does SESTA do? Rather than make it easier for law enforcement to go after those illegal activities, it creates a new illegal activity: that of running a website that is used by sex traffickers. So, as we've discussed before, this creates a serious "moderator's dilemma" for websites, leading to one of two likely outcomes. Many websites may stop moderating content, because if they're not looking at the content, they can more credibly claim a lack of knowledge. That means less moderation, less oversight, and likely more use of those platforms for sex-trafficking ads. So, suddenly, sex-traffickers will gravitate to those platforms, and those platforms will be less likely to cooperate with law enforcement because (again) they want to avoid "knowledge" of how their platform is being used, and working with law enforcement risks more knowledge.

On the flip-side of the moderator's dilemma, you will get sites that much more vigorously moderate content. This seems to be the solution that SESTA supports think all platforms will embrace -- which is almost certainly incorrect. Indeed, it's incorrect on multiple levels, because not only will some platforms embrace this more heavy moderation setup, those that do will almost certainly over-moderate to a drastic degree, in order to avoid liability. That will mean fairly aggressive levels of keyword blocking, filters, and automated removals. And, as anyone who has studied how such systems work in the real world, all of those will fail. And they'll fail with both false negatives and false positives. That is, lots of perfectly legitimate content will get taken down (perhaps, as we've discussed before, it could be material to help victims of sex-trafficking), and lots of sex-trafficking content will still get through.

It's that latter point that's pretty important: the people engaged in sex-trafficking are already breaking the law. SESTA changes nothing for them in terms of the illegality of what they're doing. It just means the tools they use are going to change a little bit, and anyone who thinks the traffickers won't adjust with it has apparently never spent any time on the internet. If keywords get blocked, traffickers will come up with new euphemisms (they always do). If forums get shut down, they will gravitate to other forums. If filters are created, they will figure out ways to get around the filters. Nothing in SESTA creates any disincentives at all for actual traffickers.

Indeed, SESTA creates a few things that will make life easier for traffickers. As noted above, it will likely lead some sites to do less moderation, and traffickers will quickly gravitate to such sites. Additionally, it will make it much, much harder for rights groups to post information to help victims of sex-trafficking, since much of that information will be seen as a liability risk, and blocked or taken down. And, finally, it will create massive disincentives for sites to work with law enforcement or families of victims to help them, because of the risk of those actions being used to prove the requisite "knowledge."

So, please: can someone who is a supporter of SESTA explain how the bill will do anything to actually stop sex trafficking? Because I can't find a single useful thing that it does.

Filed Under: intermediary liability, moderator's dilemma, sesta, sex trafficking