Sex Workers Fighting Back Against SESTA/FOSTA With Their Own Social Network... And Plan To Expose Politicians

from the don't-fuck-with-sex-workers dept

One of the most vocal groups in opposition to SESTA/FOSTA were sex workers, who spoke out about how the bills would put their lives at risk and how it would put the lives of trafficking victims at risk, often making it more difficult for victims to find information on how to get help or to protect themselves. Indeed, there are already reports of information sites shutting down entirely. But it's also interesting to see that sex workers are continuing to fight this -- including reports of a Google Doc making the rounds where sex workers can expose members of Congress who have used their services:

Of course, who knows how accurate such a list would ever be, but it will be interesting to watch if we suddenly learn of elected officials who voted for SESTA/FOSTA suddenly being outed for making use of sex workers. I mean, it certainly wouldn't be the first time an elected official claiming to crack down on sex work was found to have been making use of the services he was moralizing against.

Perhaps more interesting, though, is that a group of sex workers have apparently attempted to set up their own social network, called Switter. It's a Mastodon Instance (Mastodon being the fairly well known open source decentralized social networking platform that allows anyone to set up an individual "instance" which can then choose -- or choose not -- to federate with other Mastodon instances). The stated reasons for Switter are to prepare for the possibility of Twitter banning accounts of sex workers and to have more control over their social media space. As I write this, the site claims to have about 12,000 signed up users.

Of course, I'm not sure that this actually solves any of the problems of SESTA/FOSTA -- and, indeed, this may put a target on the backs of those who set up Switter. Depending on how one reads the law (and, again, part of the problem is that SESTA/FOSTA's drafting is terrible, with lots of vague terminology and little clarification), it's possible that prosecutors could argue that Switter itself violates SESTA/FOSTA. I mean, here's a key provision in the bill:

Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.

Is Switter "promoting or facilitating the prostitution of another person"? You can see how a prosecutor could make an argument that it is. And while the site is apparently based in Australia, giving it potentially some protection from US laws, the US government isn't exactly known for caring about such jurisdictional issues. Of course, if cases were brought against the people running Switter, you would think they would potentially have pretty strong First Amendment arguments for why SESTA/FOSTA is unconstitutional. If they were just setting up a community around sex work, and suddenly faced liability, there are some clear implications for freedom of expression -- once again, highlighting some of the many constitutional concerns of SESTA/FOSTA that its drafters and supporters still refuse to take seriously.

Filed Under: fosta, sesta, sex workers, social networks, speech, switter

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

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

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

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

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

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

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

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

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

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

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

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

from the you-know-it dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from the say-what-now? dept

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

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

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

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

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

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

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

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

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

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

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

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

Can SESTA Be Fixed?

from the will-it-be-fixed? dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These websites hold vital resources for trafficking investigations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Techdirt Podcast Episode 157: The Worst Of Both Worlds - SESTA & FOSTA Together

from the sum-of-its-parts dept

It wasn't very long ago that we last discussed SESTA on the podcast, but now that the House has voted to approve its version of the bill with SESTA tacked on, it's unfortunately time to dig into the issues again. So this week we're joined by returning guest Emma Llansó from the Center for Democracy and Technology and, for the first time, law professor Eric Goldman to talk about why the combination of SESTA and FOSTA has resulted in the worst of both worlds.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: cda, emma llanso, eric goldman, fosta, podcast, section 230, sesta

Wall Street Journal Explains Why SESTA Is A Terrible Idea And Is Unnecessary

from the didn't-see-that-coming dept

Here's a bit of a surprise. The Wall Street Journal's Editorial board has come out vehemently against SESTA. The reason this is surprising is that much of the push for SESTA has been a fairly obvious attack on internet companies, especially Google, by trying to undermine CDA 230. And the Wall Street Journal has spent years attacking Google at every opportunity.

But, this time, the editorial gets the story right -- highlighting that the effort is clearly being driven by anti-Google animus, even though it will create all sorts of other problems (problems that Google can mostly survive easily). However, the most important part of the editorial details why SESTA is not actually needed. Throughout the process, the backers of the bill always point to Backpage.com as the reason the bill is necessary. As we pointed out, when the bill was first released, nearly every quote from Senators backing it mentioned how it was necessary to take down Backpage.

But what none of them want to talk about is that we don't need this law to take down Backpage. As the WSJ report notes, Backpage is currently in court in Massachusetts where it seems likely that a judge will say that it's not protected by CDA 230, because of recent evidence showing that it was a more active participant in creating advertisements involving trafficking. Earlier ruling saying that Backpage was protected by CDA 230 did not have the evidence revealed later that Backpage actually was an active participant:

Yet neither the California nor federal judge was presented with the evidence in the Senate report that Backpage had edited ads to elude law enforcement. And in light of new evidence, a federal judge in Boston is considering allowing another case against Backpage to proceed.

At the very least, you have to wonder why Congress can't wait to see what happens in Boston.

Separately, it's widely been reported that the DOJ has begun a grand jury investigation into Backpage. And, despite what people will tell you, nothing in Section 230 prevents the Justice Department from going after federal crimes (including sex trafficking). The WSJ points this out as well:

Justice last year initiated a grand jury investigation into Backpage’s sex-trafficking, and courts may correctly decide the case in due course.

And that leaves out two other points that show that SESTA is not needed to take down Backpage. First, two years ago, Congress passed another law, the SAVE Act, which was also clearly targeted at Backpage, making it illegal to advertise sex trafficking. And, for reasons no one has explained, that law has never actually been used. Throughout the entire SESTA process, politicians have acted as if the SAVE Act never even happened. No one has discussed why we need another law on top of that one, or why the SAVE Act has not been used, even though it targets the same issue in a more targeted fashion.

And the biggest reason of all that we don't need SESTA to take on Backpage: Backpage has already shut down its adult ads section, due to the mounting pressure from politicians, lawsuits and law enforcement. The only thing SESTA adds to Backpage is even more ways to pile on after the fact. It's hard to see how that is necessary at all.

Either way, as the WSJ Editorial points out, SESTA seems totally unnecessary to deal with the problem that everyone is claiming it's meant to help... but it would cause lots and lots of other problems:

Most website operators are aware that people use their platforms for nefarious purposes, but ferreting out criminal activity isn’t always easy. While algorithms can help, human judgment is often necessary. Google plans to hire 10,000 employees to review YouTube videos for inappropriate content.

Revising Section 230 for sex-trafficking could open up a Pandora’s box. Small websites might create overly restrictive screens that filter out non-objectionable content such as ads to help sex-trafficking victims. This could also make it harder to ask other countries to provide internet companies legal immunity for user content.

The WSJ editorial actually underplays the so-called "moderator's dilemma" created by SESTA. As Eric Goldman has explained multiple times, under the wording of SESTA, most websites are encouraged to take one of two extreme positions, neither of which are helpful. One is that if they moderate, they will become overly cautious, quick to take down anything that might put them at risk, or for which they received a notice. So that could include (as the editorial notes) content designed to help sex-trafficking victims, or it might just be anything that mentions certain keywords. Or maybe it'll be anything that someone flags as "sex-trafficking content" just because they want it gone (as we see with tons and tons of DMCA notices).

The other option in the moderator's dilemma is not moderate at all. Since SESTA has a "knowledge" standard, the best way to avoid liability is not to have any knowledge of what people are doing -- and the best way to do that is not to moderate at all. What's quite incredible to me is that the backers and supporters of SESTA refuse to acknowledge that as CDA 230 is currently written it encourages moderation, and SESTA removes that encouragement. In other words, in an effort to get websites to stop allowing sex trafficking, they're actually encouraging more sites to look the other way deliberately.

One more point that the WSJ editorial board gets right: this is going to lead to a ton of lawsuits. And almost all of those will be misdirected: suing the company operating a website for actions of its users, rather than suing the users. Given that even the anti-internet Wall Street Journal understands the many problems of the bill, why is it that so many in Congress refuse to deal with it?

Filed Under: cda 230, fosta, sesta, sex trafficking, unintended consequences, wsj, wsj editorial board

DOJ Tells Congress SESTA/FOSTA Will Make It MORE DIFFICULT To Catch Traffickers; House Votes For It Anyway

from the wtf-guys? dept

As we've been discussing, this afternoon, the House voted both on Rep. Mimi Walters' bad amendment to attach SESTA to FOSTA, and then on the combined bill -- and both sailed through Congress. Somewhat incredibly, this happened even though the Justice Department weighed in with a last minute letter saying that the language in the combined SESTA/FOSTA is so poorly drafted that it would actually make it more difficult to prosecute sex traffickers, and also calling into question whether or not the bill was even Constitutional.

You would think that with the DOJ pointing out these fairly fatal flaws with the bill, that perhaps (just perhaps), the House would delay voting on this. As noted last week, bringing the amendment to the floor without having it go through the House Judiciary Committee (as is supposed to happen), seemed to be the House's way of washing its hands of the bill, and tossing the issue back to the Senate. But rushing through a bill with huge implications is no way to make law. As Rep. Lofgren noted on the floor:

The justice department says in this letter that they believe any revision to define “participation in a venture” is unnecessary and in fact that the new language would impact prosecutions by effectively creating additional elements in fact they say the amendment will make it harder to prosecute…There’s a thing we get told in law school: Bad cases make bad law. One of the ways to avoid that is to have the committee process work through it. That didn’t happen....

And thus, Walters' amendment prevailed 308 to 107 and then the combined (terrible) bill sailed through the whole House 388 to 25. Kudos the to the 25 Representatives who actually understand how CDA 230 works and why this bill is so bad, but it's depressing to think that it was just 25.

In response to this, Senator Ron Wyden has already put out a statement scolding the House for failing to understand what they've just done:

History shows that politicians have been remarkably bad at solving technological problems. I have written laws in the past, including Section 230 of the Communications Decency Act and the Internet Tax Freedom Act, that have kept politicians and special interests from sinking the internet.This bill will only prop up the entrenched players who are rapidly losing the public’s trust. The failure to understand the technological side effects of this bill – specifically that it will become harder to expose sex-traffickers, while hamstringing innovation – will be something that this congress will regret.

I take a backseat to no one when it comes to fighting sex trafficking and locking up the monsters who prey on the defenseless. I have authored laws to support victims and provide ongoing funding paid for by those convicted of heinous crimes against children, and authored laws to improve the child welfare system to help prevent children from becoming victims in the first place. However, the bill passed today by the House will make it harder to catch bad actors and protect victims by driving this vile crime to shadowy corners of society that are harder for law enforcement to reach.

This is the perfect encapsulation of a broken Congress. They "did something" for the grandstanding feature alone. Lots of Congressional Representatives will now claim that they "voted to stop sex trafficking" or some such, without bothering to understand or care why this bill actually will harm the victims of sex trafficking, making it more difficult for law enforcement to go after actual traffickers, creating serious incentives for websites not to stop sex traffickers from using their platforms and not to help law enforcement, and (as a side effect) seriously undermining free speech on the internet.

The bill now moves back to the Senate, which has already passed its version of SESTA out of Committee where Wyden put a hold on it. It appears likely that a vote will happen sometime soon on the bill, so now might be a good time to call your Senator and let them know that as good as this bill may sound from its title, its actual impact will be a total disaster.

Filed Under: cda 230, congress, fosta, mimi walters, section 230, sesta, votes