Legislators Pushing A Patriot Act, But For Human Trafficking In The Wake Of FOSTA

from the what-could-possibly-go-wrong dept

When you're looking to expand the government's power, any crisis will do. Following the 9/11 attacks in 2001, legislators told us the terrorists hated us for our freedom. Then they rushed through the Patriot Act, demonstrating how much our own government hates us for our freedoms.

In the name of national security, the government was allowed to engage in warrantless searches (and warrantless wiretapping) as the Fourth Amendment was sacrificed to make way for secure skies and secure borders. More of the same is on tap at the federal level, thanks to another "crisis" -- one mostly manufactured by a number of government officials who want to expand their power in the name of all the trafficked children in the world.

Sex trafficking is the name of the game -- even if the game board seems mostly devoid of players. A number of grandstanders have taken shots at big online services, playing shoot the message board since it's easier to serve Craigslist, Backpage, or whoever than track down actual traffickers.

One of these grandstanders is Rep. Ann Wagner. Wagner has been leading the charge to destroy Section 230 immunity under the pretense of hunting down sex traffickers. Sex traffickers will go on trafficking. They'll just be harder to find. Meanwhile, the web gets worse for everyone as websites become less willing to provide platforms for third-party content.

Wagner has made outrageous claims and pushed hard for outrageous legislation. She was one of the leading forces behind FOSTA. But she's not done yet. As Elizabeth Nolan Brown points out in her excellent article for Reason, Wagner's new bill is another Patriot Act -- but with "human trafficking" standing in for "worldwide terrorism."

Wagner's bill (H.R. 6729)—the deceptively named the "Empowering Financial Institutions to Fight Human Trafficking Act" of 2018—is the latest in a long line of assaults on civil liberties disguised as attacks on the biggest crime panic of the decade, sex trafficking. Wagner alone brought us the SAVE Act in 2015 and FOSTA in 2018, both of which take aim at online anonymity, web publishing, social media, sex workers, and free speech under the guise of saving children from "modern slavery."

Specifically, H.R. 6729 would allow financial institutions, federal regulatory bodies, nonprofit organizations, and law enforcement to share customer bank records between them without running afoul of rules regarding consumer privacy and without opening themselves up to lawsuits. Ostensibly, this would be done "in order to better identify and report potential human trafficking or money laundering activities."

Wagner will strip immunity from websites and serve up immunity to banks. This plan to end sex trafficking isn't being carried out in good faith. Distorted facts, distorted stats, and a whole bunch of made up data is par for the course. So, it makes sense the banks won't have to operate in good faith either.

But these entities need not demonstrate that the "sharing was made on a good faith basis," according to the current text of the bill.

This sounds like legislative encouragement for fishing expeditions -- both by law enforcement and by financial institutions. The Patriot Act's expansion of government power already lowered the bar for law enforcement, allowing it to obtain records without subpoenas or judicial review. This bill expands the Patriot Act's confines past the War on Terror to sweep up anything that could conceivably be imagined as related to human trafficking.

The government has already abused the Patriot Act to investigate strip clubs, as Nolan Brown points out. Dropping the national security pretense will allow government agencies to dig into thousands or millions of additional financial transactions. Anything that looks like overreach will be excused by concern for the children or the supposed wiliness of sex traffickers.

Filed Under: ann wagner, civil liberties, fosta, human trafficking, patriot act, privacy, sex trafficking, surveillance

District Court Misses The Forest For The Trees In Dismissing Constitutional Challenge To FOSTA

from the stop-hitting-yourself dept

It's like the scene in the Naked Gun, where Leslie Nielsen stands outside the exploding fireworks factory telling everyone, "Nothing to see here. Please disperse." Such is the decision by the district court dismissing the EFF's lawsuit challenging the constitutionality of FOSTA.

Since FOSTA's passage, many have largely been reacting in terror at its vague, yet broad, language threatening civil and even criminal liability. It has led to the censorship of enormous swathes of legitimate speech as platforms seek to reduce this new risk. But in a decision Monday dismissing the case for lack of standing the district court basically declared that it couldn't understand what everyone was so worked up over.

Standing has to do with who is entitled to file a lawsuit. Ordinarily you have to have suffered an actual injury, although in certain situations, such as constitutional challenges, parties can have standing if it is likely that they will suffer an injury. After all, we wouldn't want people to have to expend resources needlessly in the effort to comply with an unconstitutional law, or have to risk prosecution in order to have its constitutionality tested before the courts. But the injury risk still needs to be reasonably likely.

Imminence, the element most relevant here, is concededly a somewhat elastic concept. Nevertheless, imminence "cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes – that the injury is certainly impending." […] The concept of imminence has been particularly important in the context of pre-enforcement challenges. The Supreme Court has held that plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. A credible threat of prosecution exists when the challenged law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution. Thus, fear of prosecution cannot be "imaginary or wholly speculative," and allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. [p. 15-16]

Yet here the court decided it was not.

It would be great if it were right, and no one had anything to fear. But while the court essentially declared the fears contorting the availability of online speech to be much ado about nothing, it didn't do so in a way that would effectively allay those fears.

As the court ran through its analysis of the standing of each plaintiff, it struggled to see how what they proposed to do, and how what they feared would be chilled by the law, was targeted by the law.

[P]laintiffs say, FOSTA criminalizes "anything that promotes or facilitates prostitution, and not a specific crime." This is particularly problematic because prostitution is an area where there has been significant advocacy, both by government entities and by private citizens. As plaintiffs see it, that advocacy places them in crosshairs. In pressing this argument, however, plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic of prostitution or sex work. [p. 22]

The above is some of what the court had to say about the lead plaintiff Woodhull Freedom Foundation. It concluded similarly for plaintiff Human Rights Watch. For plaintiff Jesse Maley a/k/a Alex Andrews, the creator and operator of an actual platform, ratethatrescue.org, it similarly minimized her concerns.

Under Maley's reasoning, because providing housing or childcare services to sex workers "make[s] sex work easier," Rate That Rescue could be said to promote or facilitate prostitution. For this reason, Maley fears that amendments to Section 230 - which clarify that immunity does not extend to conduct made unlawful by Section 2421A - could expose her to prosecution for the speech of third parties on Rate That Rescue. […] Her concerns, however, are unwarranted. Put simply, Maley has failed to show that Section 230 amendments expose her to a credible threat of prosecution. That is so because Maley, on the current record, lacks the mens rea to violate any of the provisions specified in Section 230(c)(5). […] In managing Rate That Rescue, Maley cannot possibly be said to act "with the intent to promote or facilitate the prostitution of another person" in violation of Section 2421A. Maley's declaration concedes as much, repeatedly expressing concern that law enforcement could determine that "the user-generated content on Rate That Rescue promotes or facilitates prostitution." But those formulations lack the critical mens rea element of the Section 2421A offense. Indeed, Maley herself does not even assert that law enforcement could credibly contend that, in managing Rate That Rescue, she acts "with the intent to promote or facilitate" the prostitution of another person. Of course, the mere promotion or facilitation of prostitution is not enough: Maley must intend that her conduct produce the specific result. [p. 25-26]

It's a statutory parsing that would be a lot more assuring if it didn't ignore another perfectly plausible read of the statute. Of course it's ridiculous to say that Maley intended to promote prostitution. But that's not what the statute forbids. In a subsequent passage the court dismisses the argument that FOSTA's amendments to 18 U.S.C. Sec. 1591 create any additional legal risk for platforms. But the amendments expand the prohibition against the "participation in a venture" to engage in sex trafficking to include "knowingly assisting, supporting, or facilitating" such a venture. This language suggests that liability does not require knowledge of a specific act of sex trafficking. Instead, merely providing services to sex traffickers – even ones unsuccessful in their sex trafficking venture – would seem to trigger liability. In other words, knowledge seems to hinge not on knowledge of a sex trafficking act but on knowledge of a sex trafficking venture (including one that may even be victimless), yet both the statute and the court are silent as to how much, or how little, a platform would need to actually know in order to have "knowledge" for purposes of the statute. This vagueness is what is so chilling to them, because it forces them to guess conservatively. But the court provides little relief, and in dismissing the case denies the opportunity to even attempt to gain any.

Also, while these plaintiffs were suing because they feared prospective injury, plaintiff Eric Koszyk has already experienced a tangible injury directly traceable to the changes in the law wrought by FOSTA. He was a massage therapist who relied on Craigslist to advertise his services. In the wake of FOSTA, Craigslist shut down its Therapeutic Services section, thus limiting his ability to find customers. Without FOSTA (which would result if it were declared unconstitutional) it would seem that the shutdown decision could be reversed. But to the court this result would be too speculative:

Unfortunately for Koszyk, he cannot establish redressability under the relevant precedents. That is so because Koszyk has not established that a victory "will likely alleviate the particularized injury alleged." It is well established that a plaintiff lacks standing when the "redress for its injury depends entirely on the occurrence of some other, future event made no more likely by its victory in court." When, as here, a third party can exercise "broad and legitimate discretion the courts cannot presume either to control or to predict," a court is generally unable to redress the alleged injury and, accordingly, standing is found wanting. [p. 27-28]

This is insanity. Of course the court can't force Craigslist to re-open its Therapeutic Services section. But it can eliminate the reason for its closure and at least make the decision to re-open it possible. As long as FOSTA remains on the books it eliminates that possibility, and that's an injury.

It didn't go any better for the Internet Archive's standing as a plaintiff. As a platform that handles a massive amount of third party created content, for which review would be impossible, it worried it could nonetheless be caught in FOSTA's net. Don't worry about it, said the court.

Although the Internet Archive represents that it does not intend to promote sex trafficking or prostitution, it believes that the Section 230 amendments 2 and the ambiguity of their scope may expose it to liability. Once again, however, there are no facts in the record supporting an inference of the mens rea standard necessary to peel back Section 230's protections. The Internet Archive's practice of sweeping up vast amounts of content from the web for indefinite storage, and its attested practical inability to review the legality of that third-party content, mean that that entity simply cannot meet the stringent mans rea standard required for liability under Sections 2421A, 1591, or 1595. [p. 28]

In a way, that sounds great. Don't know what's in all that user content? No problem. But the problem is, inevitably platforms are going to have some knowledge of what's in all the user content. In fact, if Section 230 is going to work as intended to encourage platform moderation of content they are going to have to know. And, thanks to this decision, this knowledge remains a terrifying prospect for all.

It is likely that EFF will continue to press forward with this case, so it is not the final word on FOSTA's constitutionality, but it is an unfortunate start.

Filed Under: constitutionality, eric koszyk, fosta, jesse maley, mens rea, sesta, standing
Companies: eff, internet archive, woodhull freedom foundation

SESTA, FOSTA, And How To Make Sense Of The Acronym Soup

from the You-say-potato,-I-say-we-should-have-called-the-whole-thing-off dept

Here at Techdirt we've been slow to switch: so dug in were we for so long against the legislative scourge known as SESTA that we've been reluctant to call it anything else. Even after its ghastly provisions became law – in some ways, because its ghastly provisions became law – we've been reluctant to change what we called this vehicle of censoring doom. After all, we said for months that SESTA would be awful, and now here it is, being awful. If we called it something else people might be confused about what we had been complaining about.

The problem is, it's not technically correct to continue to call this legislative outrage SESTA, and doing so threatens to create its own confusion. SESTA didn't become law; FOSTA did. When we react to those legislative changes, and cite to their source, we are citing to the bill called FOSTA, not the bill called SESTA. SESTA itself no longer exists in legislative form – FOSTA's enactment mooted it – and it's confusing to complain about a law that isn't actually one, or ever going to be one, because even if you can convince someone that it's terrible, they'll never be able to find in any law book what it is they should be upset about.

It's FOSTA that now haunts us from the U.S. Code. But what's confusing is that while FOSTA is the enacted legislation now hurting us, SESTA was the proposed bill we had warned would. All the legislative history is with SESTA (well, most of it anyway), but all the legislative power is with FOSTA.

So what happened? What's up with the two names? Why the shift? Basically this:

SESTA was a terrible bill proposing to gut Section 230 that had been rumbling around the Senate for a while. There were some hearings and proposed amendments, but by and large it remained a bill full of terrible, Internet-ruining proposals. Eventually, when it looked like it might be picking up enough steam to pass, an alternate bill got floated in the House: FOSTA. It still played SESTA's game, but it did so with different language that presumably would have resulted in something less Internet-ruining.

For what it's worth, not everyone thought this was a great strategy. Some thought that it would be better to do nothing but try to nip the whole idea behind SESTA in the bud, but others thought it might be better to go with a "devil you know" strategy if passage of something seemed inevitable, because then hopefully it could at least be something a little less awful.

FOSTA was still pretty bad, although it had some hearings and amendments to try to make it less so. But then, all of a sudden, the legislative sausage-making machine went berserk and spit out something even worse. The result was a Frankenstein monster of a bill, still called FOSTA, which combined the worst of its own proposals with the worst of the SESTA bill percolating in the Senate. This new FOSTA bill soon passed the House, and shortly thereafter it's the bill that passed the Senate. Notably it was not the original SESTA bill that the Senate voted on, because if the Senate had tried to pass anything different from what the House had passed the reconciliation process between the two bills might have delayed the ultimate passage of either. Perhaps that delay would have spared us this horror, but such a fate was not something the law's Internet-undermining champions wanted to risk.

So here we are, stuck with this garbage on the books, legislation so awful it can't even be labeled coherently. But giving name to something always makes it easier to fight. So from here on out, we'll be calling it FOSTA.

Filed Under: fosta, laws, names, sesta

House Judiciary Committee Falsely Claims Credit For Stopping 90% Of All Sex Trafficking Because Of FOSTA

from the where-did-they-pull-that-stat-from dept

For no clear reason at all, the Republicans* on the House Judiciary Committee released a video on YouTube earlier this week praising themselves for stopping online sex trafficking via FOSTA/SESTA. It's... quite something.

The video makes a number of blatantly false claims from various members of the House Judiciary, but let's focus mainly on the claims of Ann Wagner, whose original bill kicked off the process that became FOSTA/SESTA. She's been spreading moral panic nonsense about sex trafficking and the internet for ages, so it's no surprise that she continues to do so. But, at one point in the video she states:

"We have shut down nearly 90% of the online sex trafficking business and ads."

She kind of swallows that last "and ads" bit so you could miss it, but either way it's utter and complete nonsense. I looked all over for any evidence of the claim that 90% of online sex trafficking has been stopped and there doesn't appear to be an iota of support for that. The only stat I could find that is possibly being twisted to make this argument is that when Backpage was seized earlier this year -- notably before FOSTA/SESTA was signed into law -- a Reuters report claimed that 90% of Backpage's ads were for "adult ads."

But, that in no way translates to Wagner's nutty claim for a whole long list of reasons:

1. Backpage was not the entire online market for sex trafficking ads (amusingly, Wagner admits this earlier in the same video, in which she falsely claims that there were "hundreds and hundreds of websites selling our children with impunity" < -- narrator: "there were not, in fact, hundreds and hundreds of websites doing so, and they were not doing it with impunity."
2. Many of the adult ads on Backpage were not for sex trafficking at all
3. Backpage stopped hosting adult ads a year and a half ago in January of 2017, over a year before SESTA/FOSTA became law and over a year before the site was seized by the feds.
4. And, again, Backpage was seized before SESTA/FOSTA was even signed into law.

So, where, exactly is Wagner getting this stat of having shut down 90% of online sex trafficking and ads because of FOSTA/SESTA?

There's other nonsense in the video as well. Wagner's other whopper was:

"If it's a crime offline, by golly, it's a crime online!"

Uh, yes. But that's always been the case. FOSTA/SESTA didn't change that. All it did was create a series of new crimes for third party tools and services used by not just sex traffickers, but sex workers. Sex trafficking was already illegal and this bill did absolutely nothing to change that. It is simply wrong to imply that FOSTA/SESTA suddenly made something illegal online that had been legal online before but illegal offline. It's not true.

Then there's Mimi Walters' who brought the amendment that combined FOSTA and SESTA, making both bills worse. Her credibility on this whole thing is already suspect, given that after the feds took down Backpage, she took credit for it falsely saying it was because of FOSTA/SESTA even though that bill was not law yet. But, here she is in the video spewing more nonsense:

"This legislation will now make it illegal to sell people online and give those survivors the opportunity to seek justice."

Except it was always illegal to sell people online (and offline!) and nothing in FOSTA/SESTA changed that. All it did was create a new crime in which tools and services used by traffickers could also be found to be criminal in addition to the people who were doing the actual selling of people (while also making it harder for law enforcement to find those people -- but we'll get there). She continues:

"Websites that knowingly facilitate sex trafficking are no longer immune from legal action."

Except they were never immune from legal action. Facilitating sex trafficking is a federal crime and nothing in CDA 230 contained immunity for federal crimes. It really makes you wonder why the primary "authors" of the bill seem to feel so hard pressed to flat out lie about what their own bill does. Why would they do that?

The video also has Judiciary Committee Chair Bob Goodlatte with more of his nonsense as well.

"The provisions of this law are already making the internet safer."

[Citation needed] Amusingly, right after Goodlatte says that, the video in an effort to support this claim flips to a news report about the shutdown of Backpage... which (and I know I'm repeating myself here) was taken down without the helps of FOSTA/SESTA since it wasn't even signed into law.

Also, the evidence to date leans heavily against the claim that it has made the internet safer. Indeed, already we've seen reports about sex workers being killed and pimps being empowered now that sex workers can't use sites like Backpage to screen clients. And a big study has highlighted how a lack of such services likely leads to a massive uptick in murder of women (not just sex workers, but women in general). And, lest we forget, police departments themselves are now complaining that they can no longer find sex traffickers thanks to the law.

Notice that the video addresses none of those effects (all of which were widely predicted). It just insists that the internet is safer. This is legislative fantasyland.

Of course, there's another oddity here. Why the hell is the House Judiciary Committee Republicans suddenly putting out such a video? The bill has already passed and it's already doing lots of damage. So why is Congress spending taxpayer money on a professionally edited video talking up a bunch of nonsense? Perhaps, as many have suggested, a key part of FOSTA/SESTA was always about grandstanding about how these politicians are "tough on sex trafficking" even if that's not accurate at all. And now that we're heading towards election season, I guess they have to milk that grandstanding bullshit for all its worth. Go spend your constituents hard-earned tax money by lying to them! What a job!

Of course, another reason for all of this may be the recent lawsuit claiming that FOSTA/SESTA is unconstitutional. While we've written about it already, the stories of some of the plaintiffs in that lawsuit tell the real story of how FOSTA/SESTA is harming people. Among those suing are a national alliance of Asian massage stores, who note that, thanks to FOSTA/SESTA their completely legitimate businesses are now being blocked from advertising, because some falsely assume that any Asian massage stores must be engaged in the sex trade.

...many Internet sites and review platforms flatly refuse content from or about Asian massage providers, DiBenedetto indicated. “Since it’s assumed we’re in the sex trade because we have Asian women offering Asian massage, platforms that used to run our ads and carry our reviews all the time now want nothing to do with us.”

The loss of those online outlets is devastating to providers of Asian massage services, said DiBenedetto. “They are unfairly cutting our stores off from the consumers we need to attract in order to stay viable. The business model of the typical Asian massage store requires a continual inflow of new customers. That inflow is heavily disrupted by us being profiled.”

DiBenedetto said Asian massage studio owners and masseuses now, “go to work every morning wondering if today will be the day their livelihoods vanish because all the doors have been slammed in their faces. This is so demoralizing, not to mention dehumanizing.”

So, to summarize, the House Judiciary Committee appears to be spending taxpayer money on a video celebrating a law that doesn't do what they claim it does, taking credit for a site takedown that wasn't because of the law, making up stats that have no basis in reality, ignoring the fact that their law has put many lives in real danger while making it more difficult for law enforcement to do their job, not to mention harming small business owners at the same time.

And people wonder why Congress' approval rating is so low.

* Our standard practice is not to name the party of politicians unless that's central to the story. In this case, the video is literally coming from a YouTube account that is apparently run by the Republicans on the House Judiciary. And this is not a "Republican v. Democrat" thing, because the Democrats on the Committee also supported FOSTA/SESTA. It was bipartisan nonsense, so if you happen to support the blue team or the red team, stupid generalizing comments about one party or the other will just make you look silly and tribal, rather than insightful or intelligent.

Filed Under: ann wagner, bob goodlatte, fosta, grandstanding, mimi walters, sesta, sex trafficking

A FOSTA Of One's Own: UK Parliament Members Looking To Punish Websites, Push Traffickers Underground

from the FOSTA-Home-Secretary-is-not-a-position-that-needs-to-exist dept

Our government decided to make the internet worse, endanger the lives of sex workers, and make it harder for law enforcement to hunt down sex traffickers. And it was all done in the name of fighting sex trafficking. SESTA/FOSTA's passage immediately contributed to all three problems upon passage, throwing sex workers under the bus along with Section 230 immunity. The upside for the government was obvious: it could now target websites and site owners, rather than sex traffickers, for grandstanding prosecutions.

Violet Blue reports for Engadget that the UK government -- no stranger to terrible laws targeting the internet -- is thinking about copy-pasting FOSTA for its own use. It would also like to do all the things listed above, only without the minimal restraint of the First Amendment.

A self-appointed group of MPs (the "All-Party Parliamentary Group on Prostitution and the Global Sex Trade") fronted by Ms. Champion made a call to ban "prostitution websites" during a Wednesday House of Commons debate. Conflating sex work with trafficking just like their American counterparts, they claim websites where workers advertise and screen clients "directly and knowingly" profit from sex trafficking.

Watching British politicians advance something as broken and harmful as FOSTA-SESTA is like watching an animal try to chew its leg off to escape a trap -- while we're all standing outside the glass enclosure shouting "that's the wrong leg!" Champion is apparently OK about the fact that they're parroting Trump and FOSTA-SESTA; she's even joked that it's a special kind of irony. Indeed.

It's not that sex trafficking doesn't exist or shouldn't be addressed. It's that this "solution" does nothing to solve the problem. It only makes it worse. It drives traffickers underground, making law enforcement's job that much more difficult. And it impairs the ability of sex workers -- those who have chosen this line of work freely -- to earn a living. It increases the dangers they face, especially when paired with increased criminalization of those purchasing sex.

The adoption of FOSTA as a blueprint for sex trafficking legislation also ignores the ugly truth about its support stateside. It's not about sex trafficking. It's about punishing those who are easiest to reach: websites and customers. That sex trafficking will hum along under the radar uninterrupted doesn't phase supporters of this law. It's enough that the government will publicly hang a few website owners for content posted by third parties.

It will be worse in the UK where a challenge along civil liberties lines is more likely to fail. UK speech laws are a mess and it's unlikely opponents of the proposed law will find judicial relief from UK FOSTA knockoff. The lives the law endangers are of zero concern to a majority of politicians and the platform the law is built on -- ending sex trafficking -- is something very few feel comfortable taking a stand against.

Filed Under: censorship, fosta, intermediary liability, prostitution, sarah champion, sesta, trafficking, uk

More Police Admitting That FOSTA/SESTA Has Made It Much More Difficult To Catch Pimps And Traffickers

from the i-mean,-who-could-have-predicted-it... dept

Prior to the passage of SESTA/FOSTA, we pointed out that -- contrary to the claims of the bill's suppporters -- it would almost certainly make law enforcement's job much more difficult, and thus actually would help human traffickers. The key: no matter what you thought of Backpage, it cooperated with law enforcement. And, law enforcement was able to use it to track down traffickers using online services like Backpage. Back in May we noted that police were starting to realize there was a problem here, and it appears that's continuing.

Over in Indianapolis, the police have just arrested their first pimp in 2018, and it involved an undercover cop being approached by the pimp. The reporter asks why there have been so few such arrests, and the police point the finger right at the shutdown of Backpage:

The cases, according to Sgt. John Daggy, an undercover officer with IMPD’s vice unit, have just dried up.

The reason for that is pretty simple: the feds closed police’s best source of leads, the online personals site Backpage, earlier this year.

“We’ve been a little bit blinded lately because they shut Backpage down,” Daggy said. “I get the reasoning behind it, and the ethics behind it, however, it has blinded us. We used to look at Backpage as a trap for human traffickers and pimps.”

Got that? Just as we noted, Backpage was an incredibly useful tool for police to find human traffickers and pimps. And... thanks to do gooders insisting that Backpage was to blame, now Backpage is gone, and the police can't find the traffickers and pimps any more.

This does not seem like the way to stop trafficking. It seems like the way to make it more difficult for law enforcement to stop it.

“With Backpage, we would subpoena the ads and it would tell a lot of the story,” Daggy said. “Also, with the ads we would catch our victim at a hotel room, which would give us a crime scene. There’s a ton of evidence at a crime scene. Now, since [Backpage] has gone down, we’re getting late reports of them and we don’t have much to go by.”

The article is quite long and detailed -- and, somewhat incredibly -- even gets Sgt. Daggy to admit that he used to complain about Backpage, and then realized how useful it was as a police tool:

Shortly after Indianapolis hosted the Super Bowl, Daggy was invited to give a presentation at the Conference of Attorneys General.

“I was badmouthing Backpage big time,” he said, “because, you know, we were getting all of our arrests off there. We made over 60 arrests and caught four human trafficking cases during the Super Bowl.”

After he presented, Daggy says the website’s lawyer came up to speak to him.

“She came up to me and said, ‘You know, if we shut down, the ads will go offshore and someone else will pick them up,’” Daggy said.

That’s when Daggy started viewing Backpage as a trap – a useful tool for police trying to find victims who rarely self-report, and perpetrators who rarely come out in the open.

Of course, I'm still waiting to hear what all those people who supported SESTA/FOSTA have to say about all of this. Where is Amy Schumer, who put out a PSA in favor of SESTA/FOSTA, now that police are admitting that it's putting women's lives at risk, and that they're no longer able to track down and stop traffickers. Where are all the moralizing people who just happened to also be magically connected to the Hollywood studios who have always wanted to attack CDA 230, but suddenly found a "cause" to use in saying they needed to open up CDA 230 to stop sex trafficking. You guys made a problem much, much worse.

Filed Under: fosta, indianapolis, john daggy, law enforcement, policing, sesta

DOJ Lets Cops Know SESTA/FOSTA Is For Shutting Down Websites, Not Busting Sex Traffickers

from the work-dumber,-not-harder dept

SESTA/FOSTA was pushed through with the fiction it would be used to target sex traffickers. This obviously was never its intent. It faced pushback from the DOJ and law enforcement agencies because pushing traffickers off mainstream sites would make it much more difficult to track them down. The law was really written for one reason: to take down Backpage and its owners, who had survived numerous similar attempts in the past. The DOJ managed to do this without SESTA, which was still waiting for presidential approval when the feds hits the site's principal executives with a 93-count indictment.

The law is in force and all it's doing is hurting efforts to track down sex traffickers and harming sex workers whose protections were already minimal. Sex traffickers, however, don't appear to be bothered by the new law. But that's because the law wasn't written to target sex traffickers, as a top DOJ official made clear at a law enforcement conference on child exploitation. Acting Assistant Attorney General John P. Cronan's comments make it clear SESTA/FOSTA won't be used to dismantle criminal organizations and rescue victims of sex traffickers. It's there to give the government easy wins over websites while sex traffickers continue unmolested.

In April, Backpage.com – the internet’s leading forum to advertise child prostitution – was seized and shut down, thanks to the collective action by CEOS and our federal and state partners. The Backpage website was a criminal haven where sex traffickers marketed their young victims. The Backpage takedown – and the contemporaneous arrests of individuals allegedly responsible for administering the site – struck a monumental blow against child sex traffickers.

But other sites inevitably will seek to fill the void left by Backpage, and we must be vigilant in bringing those criminals to justice as well. With the recent passage of the SESTA-FOSTA legislation, state and local prosecutors are now positioned to more effectively prosecute criminals that host online sex trafficking markets that victimize our children.

"Criminals" that "host sex trafficking markets." That's the target. That's any website that might be used by actual sex traffickers to engage in actual sex trafficking. There's no dedicated web service for sex trafficking -- at least not out in the open where Section 230 immunity used to matter. This is all about taking down websites for hosting any content perceived as sex trafficking-related. It wasn't enough to hang Backpage and its execs. The government will be scanning sites for this content and then targeting the website for content posted by third parties it seems mostly uninterested in pursuing.

Hosts of third-party content are usually easy to find. The actual third parties are far more difficult to track down. Intermediary liability is back. Section 230 is no longer an effective defense. The edges have been trimmed back and the government knows it can rack up easy wins over web hosts and slowly start destroying the web under the facade of saving sex trafficking victims. The DOJ knew this law would make it harder to track down traffickers. But it also knows the law allows it to target websites instead. And here it is touting the law it fought against to a conference full of law enforcement officials, letting them know targeting websites will give them wins and accolades and far fewer headaches than tracking down the individuals actually engaged in illegal activity.

Filed Under: doj, fosta, intermediary liability, jeff sessions, john cronan, sesta, sex trafficking, shutting down websites

FOSTA Supporters Come Out Swinging Against Critics

from the is-there-a-point-in-here-somewhere? dept

You may not have heard the phrase "bootleggers and baptists," in regards to how strange bedfellows join forces in favor of certain regulations, but it's a useful concept. From a 1983 paper by Bruce Yandle, it discusses the odd realization that many people in industry often hope for regulation in a certain area knowing that the regulations will actually limit competition and benefit themselves. More importantly, it notes that those industry forces seeking to support such regulations will often hide behind those espousing moral reasons for the regulations. For the industry folks, it's a win-win: they get the regulation they want, without it appearing to be for their own benefit, but rather for the benefit of some righteous moral cause. Here's how Yandle describes the concept:

Indeed, the pages of history are full of episodes best explained by a theory of regulation I call "bootleggers and Baptists." Bootleggers, you will remember, support Sunday closing laws that shut down all the local bars and liquor stores. Baptists support the same laws and lobby vigorously for them. Both parties gain, while the regulators are content because the law is easy to administer. Of course, this theory is not new. In a democratic society, economic forces will always play through the political mechanism in ways determined by the voting mechanism employed. Politicians need resources in order to get elected. Selected members of the public can gain resources through the political process, and highly organized groups can do that quite handily. The most successful ventures of this sort occur where there is an overarching public concern to be addressed (like the problem of alcohol) whose "solution" allows resources to be distributed from the public purse to particular groups or from one group to another (as from bartenders to bootleggers).

This concept can be seen in many places. Indeed, the Econtalk podcast recently had on Dick Carpenter who discussed his book "Bootleneckers" which looks into a number of similar examples.

Paul Matzko has recently written an essay that specifically applies the "bootleggers and baptists" concept to FOSTA, the law that was recently passed overwhelmingly that claims to be about stopping sex trafficking, but as we've explained ad nauseum is actually putting victims' lives in danger. As Matzko notes, it's a classic bootleggers and baptists scenario:

Anti-sex trafficking activists play the “Baptist” role, earnestly contending for reforms that they believe will help women and children enmeshed in a web of sexual exploitation. While internet content providers like Facebook and Amazon are not “bootleggers” themselves, since they operate within the law, they are roughly equivalent to the licit producers of alcohol during Prohibition, who benefited from a competitive moat created by the new rules.

As we've been pointing out the problems with the law, and the fact that police are now admitting the law is making it harder for them to find victims of sex trafficking, while actual sex traffickers are finding the law has made their job easier, we've wondered about what happened to all of those "Baptists" who had been pushing for the law all along. They seemed mighty quiet in the face of reports of women literally dying because of the law they passed.

Last week, a group of FOSTA supporters finally released an opinion piece attempting to defend the law, while brushing off the concerns of those who actually see how it's putting victims' lives at risk. The opinion piece is incredible and incredibly dishonest.

Recently, there has been widespread confusion surrounding SESTA/FOSTA, the new legislation that enhances the Communications Decency Act of 1996 (“CDA”). In short, SESTA/FOSTA closed the loophole that gave blanket immunity to internet service providers who failed to take measures to prevent people from being sold for sex through their websites.

First off, during debates on the law, we were told by the bill's supporters that the new standard was not that it applied to those who "failed to take measures to prevent." Indeed, we were told that SESTA/FOSTA did not require active measures -- just responding to knowledge of sex trafficking or prostitution. So, just as an opening, this opinion piece is either admitting that they don't know what's in the bill or what it's supporters said during the run up to the bill, or they're admitting that the bill really does do exactly what many of us worried the bill would do and were mocked for saying as much.

Now, rather than trying to meaningfully understand the legal impact of SESTA/FOSTA, self-proclaimed “sex worker advocates” have used the flurry of misinformation to their advantage, perpetuating a false narrative about the law’s supposed effects.

The "flurry of misinformation" seems to be reports from the ground from people who are actually living the effects. To brush them off is fairly astounding.

The very text of § 2421A (a) reveals that the law was intended to apply to websites, and not target the people who post on them. In fact, those who post were never subject to the protections of Section 230(c) of the CDA in the first place. Yet sex worker advocates proclaim SESTA/FOSTA infringes on their ability to sell sex.

This paragraph is almost totally bullshit. It creates a strawman, and then knocks down something entirely different. Yes, FOSTA/SESTA applies to websites rather than users (that's why we've pointed out it's so mis-targeted in the first place, since it does nothing to target sex traffickers). The complaints from sex workers is not that it "infringes on their ability to sell sex." The complaint from sex workers is that by putting liability on websites who "facilitate" any form of prostitution is that it then prevents the many ways in which sex workers and victims of sex trafficking communicate and get information to protect themselves or get help. Because the law targets websites, those websites who provide ways for sex workers and/or victims of sex trafficking to communicate, are at a huge risk of criminal liability. And thus, they are shutting down or blocking the ability to use them. And, the problem is not that this "infringes on their ability to sell sex," but rather it makes it much more difficult for them to stay safe or to get help if they are victims.

Sex workers who post their own commercial sex advertisements were always (and still are) subject to applicable prostitution laws. SESTA/FOSTA did nothing to change this. Instead, the law is fundamentally concerned with websites who intend to facilitate “the prostitution of another person.” Therefore, individual people can continue to use the internet to discuss and advertise commercial sex on various websites, subject to the same applicable prostitution laws.

Again, this is discussing something else. Yes, the laws on prostitution are not changing, but by blaming websites, those websites are no longer letting these people who are at an extraordinarily high risk of violence, trafficking or death to better protect themselves. And FOSTA/SESTA forces those websites that they relied on to protect themselves to shut down. That's the problem, which these "advocates" refuse to acknowledge.

Simply put, SESTA/FOSTA holds internet service providers accountable for allowing their websites to serve as springboards for sex trafficking. Yet, sex worker rights advocates continue to push an alarmist agenda, mangling what the law actually says. They argue that it will increase the deaths of prostituted people everywhere because it will prevent screening efforts, “force” them “back out” on the street, and prevent them from earning a “livelihood” from this “empowering” career choice. These vain arguments were made bolstered by the fictitious proclamation that “survivors” said so.

Prostitution is incredibly dangerous. The admission by sex workers who claim to use certain websites to screen violent and homicidal sex buyers acknowledges the inherent danger of commercial sex. The passage of SESTA/FOSTA does not make prostitution more dangerous, because unless the websites used for screening were intended to promote or facilitate the prostitution of a person other than the one posting on the site, the screening websites and the users remain in the same legal position as they were prior to the passage of SESTA/FOSTA.

What?!? This is either ignorance or willful blindness on the part of the FOSTA advocates. The law is written so broadly, that any tool where sex workers communicate may be seen as a tool for "facilitating" some aspect of prostitution, and thus would be criminally liable under FOSTA. How can they say with a straight face that those websites "remain in the same legal position" when a ton of them are already shutting down?

Furthermore, this argument relies on the premise that the information shared about commercial sex online is completely accurate. Meaning, all sex buyers use their real names and provide truthful information during transactions, that the people who sell sex always feel safe to use their identities to critique their customers, and that people who solicit sex via the figurative cover of the internet are inherently more trustworthy than those who do it in person. These presumptions are ludicrous.

None of the argument relies on this totally made up assumption. Instead, it relies on actual empirical data, like the fact that when Craigslist introduced its "Adult Services" section, female homicide rates across the board dropped by over 17% (not just the homicide rate of sex workers). In other words, here's actual data proving these FOSTA advocates wrong, and the best they can do in response is make up a nonsensical claim that sex workers are saying everyone is truthful online.

Now that websites are no longer immune from legal action for their part in facilitating sex trafficking, some have smartly opted to remove content that could trigger violations. Craigslist promptly deleted its personal ad section;. Backpage.com was shut down by the government in early April following indictment of the site’s founders on criminal charges including facilitating prostitution.

What an odd thing to note. First off, Backpage was shutdown before FOSTA was passed. So it makes absolutely no sense that these advocates are taking credit for it. Second, just moments ago, they were claiming that most sites shouldn't be impacted by FOSTA/SESTA, yet here they're excited about Craigslist taking down its regular dating site (i.e., not a hotbed of sex trafficking). And, I'll note that they don't bother to mention the fact that Cloudflare shut down a social network for sex workers called Switter. It's a convenient one for them to ignore, because earlier in the article they insisted that such sites would not be impacted by the law.

Once again, the FOSTA advocates seem to be living in a fantasy world where they can pretend they can just ignore reality.

SESTA/FOSTA won’t stop trafficking. But, it is an incredible blow to the commercial sex industry, - an industry that not even sex worker rights advocates can claim is fundamentally safe. To say otherwise is incredibly disheartening and politically distracting.

The "Baptists" have had their say here, but they can only make their point by outright misrepresentation and ignoring the facts.

Filed Under: fosta, morals, myths, prostitution, sesta, sex workers

Police Realizing That SESTA/FOSTA Made Their Jobs Harder; Sex Traffickers Realizing It's Made Their Job Easier

from the who-could-have-predicted dept

For many months in the discussion over FOSTA/SESTA, some of us tried to explain how problematic the bills were. Much of the focus of those discussions were about the negative impact it would have on free speech on the internet, as the way the bill was drafted would encourage greater censorship and more speech-chilling lawsuits. But as we heard from more and more people, we also realized just how incredibly damaging the bill was going to be to those it was ostensibly designed to protect. Beyond the fact that it was passed based on completely fictional claims about the size of the problem, those who actually were victims of sex trafficking began explaining -- in fairly stark terms -- how SESTA/FOSTA would put them in greater danger and almost certainly lead to deaths.

While supporters of the bill seem to insist that because the bill puts legal liability on platforms that are used for sex trafficking that it will magically make sex trafficking disappear, the reality is more complex. While we can argue about Backpage's complicity in what happened on its platform, for years it was used as a tool to protect sex workers, giving them more control over their lives and who they worked with. As we've pointed in the past, a recent study found that Craigslist, back when it had its "erotic services" section, appeared to decrease female homicide rates by an astounding 17.4%. Backpage picked up the slack when Craigslist was bullied into closing that section, but now it's gone too.

And stories are already coming in about the damage done. A recent episode of the Reply All podcast all about SESTA/FOSTA had some scary stats at the end, noting that there are already many stories of sex workers who have gone missing or been killed since the bill became law.

Motherboard has a story with much more details, noting that the passing of SESTA/FOSTA has emboldened pimps to take advantage of more victims of sex trafficking. As many sex workers had explained, Backpage actually allowed them to have more control themselves, and helped them get away from pimps. But without Backpage?

“Pimps seem to be coming out of the woodwork since this all happened,” Laura LeMoon, a sex trafficking survivor, writer, and co-founder and director of harm reduction nonprofit Safe Night Access Project Seattle, told me in an email. “They’re taking advantage of the situation sex workers are in. This is why I say FOSTA/SESTA have actually increased trafficking. I’ve had pimps contacting me. They’re leeches. They make money off of [sex workers’] misfortune.”

The Verge also has an excellent deep dive into how SESTA/FOSTA has put more women's lives at risk.

What about the claims that SESTA/FOSTA would help law enforcement (many of whom pushed for the law)? Yeah, about that: police are now realizing that it's more difficult for them to find sex traffickers without Backpage. I mean, it's not like people were explaining this a decade ago.

Meanwhile, given how many SETSA/FOSTA supporters insisted that the bill was necessary to prevent the sex trafficking scourge, you'd think that sex trafficking prosecutions and arrests would show an upswing, right? Instead, we see things like how a special court in Delaware set up specifically to focus on dealing with sex trafficking cases is shutting down due to the lack of actual sex trafficking victims. The reason the court was shut down according to the judge who shut it down?

... there was "little evidence to suggest the defendants of this court are the subjects" of sex-trafficking enterprises.

So, I'm still wondering why all of the supporters of SESTA/FOSTA seem to have disappeared off the face of the earth in the last couple months as all of this has happened. Can one of them step forward and actually defend what they've done as the evidence is showing they're literally getting people killed and making it more difficult to stop sex trafficking?

Filed Under: consequences, fosta, intermediary liability, pimps, police, sesta, sex trafficking