Tumblr's New 'No Sex' Rules Show The Problems Of FOSTA And EU Copyright Directive In One Easy Move

from the intermediary-liability-protections-matter dept

As you may have heard by now, on Monday, Tumblr announced that in just a couple weeks it will be banning porn from its platform as part of a change to its rules. Now, of course, Tumblr has every right to run its platform however it sees fit, but it does seem notable that it wasn't all that long ago that Tumblr openly defended the fact that Tumblr hosts a bunch of "Not Safe For Work" content, explaining that they supported free speech, and didn't want to be in the business of carefully determining whether or not something was "artful" photography or just porn.

Of course, that was before Verizon bought Yahoo (which had previously bought Tumblr). And it was before FOSTA became law. As Wired points out, this move to ban all porn comes just weeks after Apple banned the Tumblr app from the App Store over some illegal images (even after Tumblr was alerted and took those images down). It's not hard to see how some execs at Verizon might have looked at all of this as a headache that just isn't worth it -- especially given the potential criminal liability that comes from FOSTA. Remember, a few months back, we noted that a bunch of online trolls were deliberately targeting women they didn't like on various platforms claiming (often without evidence) that they were engaged in prostitution. Many of those targeted used Tumblr. It's not difficult to see how Verizon just decided to rid itself of this whole headache.

But, beyond demonstrating the censorship problems of FOSTA, this move by Tumblr is also doing a bang up job demonstrating why mandatory filters, such as those pushed for in Article 13 in the EU Copyright Directive will be so harmful. Filters are notoriously terrible at accurately taking down only the content they're supposed to take down. Amusingly, one of the key talking points of Article 13 filter defenders is that "well, these platforms do a great job stopping porn, so clearly they can stop infringement." This is wrong on multiple levels, starting with the fact that the determination of what is "infringing" is entirely different from what is "porn." But, more to the point: the porn filters don't work very well at all.

Buzzfeed has a hilarious list of Tumblr posts that have been flagged as being adult content, that clearly... are not. Here are just a few:

Some are even claiming that reblogging Tubmlr's own announcement resulted in flags:

But for examples of flags that are perhaps even more relevant for those of us here on Techdirt, law professor Sarah Burstein, who runs a Tumblr and Twitter feed all about design patents (often highlighting how ridiculous those design patents are) found that a bunch of her design patent images resulted in flags as inappropriate content. I am not kidding:

Believe it or not, those are just a few examples from a much longer list of flagged posts about design patents for apparently violating Tumblr's "porn" filter.

While this is a complete travesty on a variety of levels, it demonstrates the utter futility of believing that filters will work and won't make a huge number of mistakes, pulling down perfectly reasonable content. Those working on laws (especially over in the EU) such as the EU Copyright Directive's Article 13 would do well to actually heed this message.

Filed Under: adult content, article 13, blogs, copyright, filters, fosta, porn, sex
Companies: tumblr, verizon

The Utter Failure Of FOSTA: More Lives At Risk... And Sex Ads Have Increased, Not Decreased

from the pushing-things-further-underground... dept

Once again, as we predicted, FOSTA -- a law ostensibly passed to stop sex trafficking -- has been a total disaster. Passed based on totally inaccurate moral panics, it has resulted in online censorship and highly questionable lawsuits. But, worst of all, despite all the rhetoric about how it was necessary to save the lives of young girls, it has actually put them at much greater risk, and increased the amount of sex trafficking, while decreasing the ability of police to track down and arrest actual traffickers.

As this was all becoming clear a few months back, the legislators who pushed FOSTA tried to completely rewrite history to claim it was a success. Chief among them was the original sponsor of FOSTA, Rep. Ann Wagner, who announced that FOSTA was responsible for "shutting down nearly 90% of the online sex trafficking business and ads." This was wrong on multiple levels. That number was based on the shutdown of Backpage, which happened before FOSTA was law and had nothing to do with FOSTA. Even worse, an investigation into that 90% number by the Washington Post showed that even it was not true. At that time, the research showed that, while there was a brief plunge in sex ads after Backpage was seized (again, separate from FOSTA), the volume was coming back up to about the same level.

And, now, a new report by software company Marinus Analytics has found that online sex ads are showing up at an even higher rate than before FOSTA became law.

According to Pittsburgh-based software company Marinus Analytics, there were about 146,000 online sex ads posted per day in the U.S. on leading escort websites from mid-September to mid-October—and the company expects the total for this month to be even higher.

In contrast, there were about 133,000 such ads posted on Backpage in the month before its shutdown, Marinus Analytics found.

Instead of backing away amid the government crackdown on sex trafficking, some escort websites are doubling down on their business model and see the Backpage shutdown as an opportunity to expand, said Emily Kennedy, Marinus Analytics' president and co-founder.

"They're really competing with each other for that spot now and so we're seeing frequent activity at this point," she said, adding that as long as the business remains lucrative, "people are going to figure out a way to advertise it."

Of course, unlike Backpage -- which regularly cooperated with law enforcement to help -- these new sites obviously have zero incentive at all to cooperate with law enforcement who are trying to track down actual traffickers. Because, thanks to FOSTA, these sites now need to try to stay away from any attention from law enforcement.

So, to recap, this law designed to stop sex trafficking by criminalizing sites that host ads around prostitution has:

• Not stopped those ads (indeed, they've increased)
• Enabled greater censorship of the internet.
• Enabled wasteful and dangerous lawsuits against internet companies.
• Made it more difficult for law enforcement to track down and arrest actual traffickers.
• Put many, many people in grave risk of injury and death.

So, where are all the supporters of FOSTA now that basically everything that we critics predicted has come true?

Filed Under: ads, ann wagner, fosta, sex trafficking

Facebook's Policy Team Steamrolled On FOSTA By Sheryl Sandberg's Personal Priorities

from the gone-political dept

We've discussed a few times the big NY Times article on Facebook employing smear merchants against its critics, discussing how disappointing, if common this tactic is, and also talking about how it's a sign of a company losing its way. This has become even more pronounced as, following Facebook COO's Sheryl Sandberg's original denial of knowledge specifically around the question of smears directed at George Soros, it's now been revealed that she both was cc'd on some of the emails from the PR company, and that she had directly asked for research on Soros' views on Facebook.

But I wanted to dig in a bit more on a specific point mentioned briefly in that NY Times report, concerning FOSTA. As we've detailed for many, many months FOSTA was a disastrous bill that has made sex trafficking worse while simultaneously creating huge problems for free speech and for internet companies -- including Facebook, which has already been sued under FOSTA.

What was notable, was that FOSTA was not going to move forward... until Facebook suddenly changed its position on the bill. Specifically, Sandberg suddenly became a vocal supporter of the bill, even as multiple policy experts at her own company had worked hard to stop the bill. At the time, it wasn't entirely clear to me if this was purely a Sandberg thing, or if it was a decision by the wider Facebook executive team that they had to support FOSTA as a fruitless attempt to appear willing to compromise on something after getting beat up from all sides over its role in Russian disinformation campaigns.

The original NY Times piece briefly mentions the FOSTA situation (referring to the bill's earlier SESTA name), suggesting that the decision here might have been driven by the smear merchant, Definers, angling for "positive content" about the company:

Definers had established a Silicon Valley outpost earlier that year, led by Tim Miller, a former spokesman for Jeb Bush who preached the virtues of campaign-style opposition research. For tech firms, he argued in one interview, a goal should be to “have positive content pushed out about your company and negative content that’s being pushed out about your competitor.”

Facebook quickly adopted that strategy. In November 2017, the social network came out in favor of a bill called the Stop Enabling Sex Traffickers Act, which made internet companies responsible for sex trafficking ads on their sites.

Google and others had fought the bill for months, worrying it would set a cumbersome precedent. But the sex trafficking bill was championed by Senator John Thune, a Republican of South Dakota who had pummeled Facebook over accusations that it censored conservative content, and Senator Richard Blumenthal, a Connecticut Democrat and senior commerce committee member who was a frequent critic of Facebook.

Facebook broke ranks with other tech companies, hoping the move would help repair relations on both sides of the aisle, said two congressional staffers and three tech industry officials.

However, in a more recent article from Bloomberg, talking about how many within Facebook feel that Sandberg has repeatedly made decisions based on her own political standing, rather than Facebook's, the claim appears that Sandberg herself made the decision to go against the rest of Facebook's policy position on this one:

Sandberg has at times focused on her own priorities over Facebook’s, the current and former employees also said. The COO is proactive when thinking about interpersonal relationships and messaging campaigns. Each winter, before the World Economic Forum in Davos, Switzerland, her team prepares a binder of all the people she might meet and what they might ask her. She uses this tactic throughout the year. But that kind of analysis — of what might occur before it happens — wasn’t as thoroughly applied to assessing risks to Facebook and how the company might be run differently, the employees said.

Around the same time Sandberg made the trip to D.C. in October 2017, Facebook and the broader technology industry were preparing for a battle over an important piece of legislation. The bill, meant to address child sex trafficking, also increased internet companies’ liability for content users posted on their services. Facebook’s policy team argued against the law. But then Sandberg got involved. After she was personally lobbied by women in Washington, she decided Facebook should support the legislation, according to people familiar with the matter. The surprise shift crippled the industry’s united front, and the bill passed.

The episode prompted questions among some Facebook staff over whether Sandberg was putting her own politics and relationships ahead of what was best for the company, according to two of the people.

That appears to be Facebook policy people telling the world that they knew that FOSTA would be terrible for Facebook and the wider internet, but Sandberg decided to support it... and got what she wanted.

And, of course, this also gives weight to the rumor I heard from multiple smaller tech companies, who believed that Facebook changed its position because it would harm them relative to Facebook. I specifically heard execs say they believed Facebook did this because "Facebook can handle the liability of FOSTA, but most of its competitors cannot." Or, as the head of Definers apparently believed, a good political move is to do something that damages your competitors...

While this is perhaps not out of the ordinary, it's quite disappointing and incredible that Sandberg's personal priorities may have been a key factor in passing a terrible bill that has already put lives in danger, free speech at risk, and harmed many internet companies through increased liability (including Facebook).

Filed Under: fosta, politics, sheryl sandberg

Another Report Shows That FOSTA Increased (Not Decreased) Sex Trafficking; Where Is The Outrage?

from the next-time-listen-to-experts dept

Before FOSTA passed, a ton of experts warned it would lead to bad things, and now we're seeing more and more stories about how FOSTA is actually increasing the sex trafficking problem, rather than decreasing it. Police have admitted that it's now harder to catch traffickers without the information they used to get from Backpage, and pimps have apparently seized on the opportunity to make use of the disappearance of Backpage and other sites to more aggressively position themselves as the only option for sex workers.

The latest such report to make this clear is in the San Francisco Chronicle, where police note that FOSTA has emboldened pimps to take control of sex workers' lives:

“Without being able to advertise online,” Long said, “a huge number of sex workers were forced to go outside, and many have reported that former pimps came out of the woodwork offering to ‘manage’ their business again since they were now rendered unable to find and screen clients online.”

[...]

“The very bill that was supposed to stop trafficking has quite literally given formerly irrelevant traffickers new life,” Long said.

I'm truly curious how the various folks who stumped for FOSTA now feel about this. A bunch of Hollywood stars, including Amy Schumer, Seth Meyers, Josh Charles and Tony Shaloub, all stumped on behalf of FOSTA, making claims that were blatantly untrue. It would be nice if these celebrities could respond to all of the new evidence showing that -- just as sex workers and experts predicted -- FOSTA has made the situation much worse for sex workers, and put many of them in serious danger.

Filed Under: danger, fosta, san francisco, sex trafficking

'Missing, Sex Trafficked' Children Neither Missing, Nor Victims Of Sex Trafficking

from the moral-panics-are-the-worst dept

For quite some time we've highlighted the horrible laws being pushed by aggressively misrepresenting the size of the problem of sex trafficking -- and especially sex trafficking of children. This is not to say that it never happens. Nor is it to suggest that the crime of sex trafficking, especially of minors, is not horrific and hugely problematic. But we shouldn't overreact to false information. A year ago, we looked at some of the numbers being presented in favor of passing FOSTA, and found they were almost entirely bullshit. This included Rep. Ann Wagner's (who is the leading pusher of bad laws around "sex trafficking") claim child sex trafficking alone was a $9.5 billion industry. As we noted, this number came from a bizarre nonsensical extrapolation of a very misleading and confused report by ICE that covered issues of smuggling (not just sex trafficking). Other stats -- such as the supposed number of kids "lured" into sex trafficking -- showed even more extrapolation, while police were finding very, very few actual cases of this happening.

But, the narrative has been set and the media makes it into reality, even if... it's not. Take this headline from the NY Post from last week, claiming "123 missing children found in Michigan during sex trafficking operation":

Wow. That would be a pretty astoundingly successful police operation, and certainly gives weight to the idea that so many kids are lured into sex trafficking rings and then disappear and go missing. Except... details matter. And deep in the NY Post story they actually admit that out of the 123 missing kids only three were "identified as possible sex trafficking victims." So, uh, why does the headline suggest that all 123 kids are sex trafficking victims when it's not clear if any are, and clear that the vast majority are not?

And then there's this: only four of the kids were actually missing.

What's more, all but four of the "missing children" were not actually missing. In the remaining cases, minors were listed in a police database as missing but had since been found or returned home on their own. "Many were (homeschooled)," Lt. Michael Shaw told The Detroit News. "Some were runaways as well."

Indeed, if you look at the report, it notes that all of the kids outside of those four "were found safe with their parents or guardians."

So, remember, the headline screamed that 123 missing children were found in a sex trafficking "operation." Now it seems that most of them were "found" at home with their parents, and only three of them might have been victims of sex trafficking. These seem like important details, especially when you have election officials like Rep. Ann Wagner pushing a vast surveillance bill on the basis of the problem of sex trafficking. Pushing bogus information like over a hundred missing kids being engaged in sex trafficking only helps build that narrative -- one that appears to actually be much, much more limited than the media or lying politicians will let you know about.

Filed Under: ann wagner, exaggeration, fosta, moral panic, police, sex trafficking, surveillan

Washington Post Gives 'Three Pinocchios' To Rep. Ann Wagner For Falsely Claiming FOSTA Stopped 90% Of Sex Trafficking Ads

from the not-how-it-works dept

Back in July we were flabbergasted to see a stunningly misleading and dishonest video put out by the the House Judiciary Committee trying to claim that FOSTA had been a huge success in stopping sex trafficking. There is literally no evidence to suggest this, while there's plenty of evidence to show the harm that has been created by FOSTA. One of the claims in the video came from Rep. Ann Wagner, who was the original sponsor of FOSTA and has been a leading voice in stoking the exaggerated and misleading moral panic around sex trafficking (which is a real problem, but very, very limited compared to what many -- including Wagner -- have said about it). Wagner's latest trick has been to try to massively expand the PATRIOT Act for spying on Americans by again freaking everyone out about sex trafficking.

As we noted back in July, in the video, Wagner tries to imply that FOSTA helped kill off 90% of sex trafficking. She worded it awkwardly so that it clearly implies 90% of sex trafficking went away due to FOSTA, but it could also be read to just say that 90% of sex trafficking ads went away. As we pointed out at the time, this was clearly not true either way. While Backpage contained many ads, it stopped with those ads a year and a half before FOSTA was law, and was taken down by the feds before FOSTA was signed. So there was literally no way that FOSTA could be in any way credited for a drop in ads coming from Backpage.

I missed it, but a few weeks later, the Washington Post set its fact checker on these specific claims, and did an even more thorough analysis, even asking Wagner's office for details. And those details make Wagner look even worse, leading the Washington Post to give her the full three Pinocchios in their final ruling on the accuracy of her claim. Specifically, Wagner's office argued that a DARPA analysis saw a "weekly global ad volume dropped 87 percent from January to April." But, as the WaPo article notes (and as we did as well) the vast majority of that was from the takedown of Backpage, which was not due to FOSTA.

But, from there things get even worse. The Washington Post asked DARPA for what happened after April and found... things are not at all what the House Judiciary Committee and Wagner were claiming. Indeed, while there was an initial decline due to Backpage shutting down (again, not due to FOSTA), it quickly went back up after April -- conveniently ignored by Wagner and the HJC. Why contaminate the narrative with facts:

Worldwide ads had a daily average of about 105,000 when FOSTA-SESTA passed on March 21 and had dropped 28 percent by the time Backpage was closed on April 5. It then plunged another 75 percent and reached a low of 19,456 on April 17, for a total decline of about 82 percent.

But on the day the Judiciary Committee posted the video, sex-trade ads were back at about 50 percent of the daily volume before the law had passed; as of Aug. 11, they were at almost 75 percent....

“The volume of ads dropped dramatically after the shutdown of Backpage but has been climbing since,” said Chris Dickson, director of research engineering at Uncharted. “There is now a volume approaching what we observed before.”

So, once again it appears that Wagner and the HJC like to completely make up stories for grandstanding political purposes. They over-hyped the size of sex trafficking to pass this bad law, and then they massively over-hyped the impact of the law, ignoring (1) that the impact they took credit for had nothing to do with the law, and (2) ignoring that the data didn't actually support what they claimed.

So why the hell is anyway still listening to Rep. Ann Wagner and her use of "sex trafficking" to try to pass new laws?

Filed Under: advertising, ann wagner, fosta, grandstanding, house judiciary committee, lies, sex trafficking

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

Six Months Later, People Are Finally Realizing That FOSTA Actually Is Putting Lives At Risk

from the we-kinda-warned-you dept

Before FOSTA became law, plenty of experts in the space tried to warn everyone that a bill that was frequently promoted as being necessary to help "save the lives" of vulnerable women involved in sex trafficking, would actually put more lives at risk. And we've already had some evidence to support that this prediction was entirely accurate. Various law enforcement officials have been complaining that it's now more difficult to catch sex traffickers.

And, now the Associated Press has a big article looking at the impact of FOSTA and it's not pretty. The closing down of various online forums for sex workers has driven more sex workers into the street, where their lives are at significantly higher risk:

Law enforcement in San Antonio arrested 296 people for prostitution between March 21, when the Sex Trafficking Act passed Congress, and Aug. 14, according to a public records request — a 58 percent increase from the same span the year before, when police made 187 arrests.

Phoenix police said they experienced a surge in street-prostitution arrests in 2018 but did not provide figures. In Houston, levels have remained constant, but more 14- to 17-year-olds have been working outdoors since May, said James Dale, a police captain.

Police in Sacramento, California, noted three street-prostitution arrests between March 21, 2017, and mid-August of that year. During the same period in 2018, they recorded 15.

The stories from women who have shifted from using the internet to the streets are pretty harrowing:

Kara Alexander, who lives in Florida, advertised her services on Backpage, Craigslist and other sites before April. When media companies closed down sections hosting adult services ads, she said, she started working on the streets.

In May, she said, a client raped her and poured alcohol in her body in an attempt to destroy evidence. Alexander, 29, said she had faced violence while working online, but never on this scale.

“It’s a different kind of danger,” she said.

A sex worker who goes by Quinn and didn’t want her real name used because she feared arrest and other repercussions said that in the age of the trafficking act, she hasn’t been able to rack up enough jobs. Near the end of April, she started selling herself outdoors in Boston for the first time since she was a teenager, she said.

“There’s no backup plan for people like us,” said Quinn, who said she was raped and beaten in August but could not afford treatment.

There are more stories and information in the full AP piece.

And, again, none of this should be a surprise. Before FOSTA became law, we (and many others) pointed to a recent study that showed how adult ads on Craigslist "reduced the female homicide rate by 17.4%" when it was available. And, to put some context on that number, that's the overall female homicide rate, not just "the female homicide rate of sex workers." Forcing more women into the street is, literally, leading to people dying.

And it is infuriating that this was done by Representatives like Ann Wagner and Mimi Walters who insisted they were doing it to save women's lives, when the reality is that they have only served to put more women in potentially mortal danger.

The AP article also highlights another point that we had mentioned previously: FOSTA is enabling much more trafficking by empowering pimps, while online sites allowed sex workers to avoid needing to use pimps:

Alexander said a friend of hers was attacked by pimps who were incensed she was working without them, and Quinn said pimps have become much more aggressive now that they see a market.

It would be nice if some reporters actually ask Representatives like Ann Wagner and Mimi Walters, or Senators like Rob Portman and Richard Blumenthal how they feel about the fact that the bad law that they pushed for, claiming it was necessary to save young women, has now created a situation where those women are placed in significantly more danger? In the business world, if you push for a proposal, once it's implemented, people check to see whether what you claimed would happen would -- and if it didn't, you're often asked to explain why not. It's incredible that Congress can pass a law insisting it will do one thing, and when it does the exact opposite, no one seems to care.

Filed Under: fosta, law enforcement, police, sex workers

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