Senate's Latest Attack On Backpage Will Be Massively Counterproductive, Create Tremendous Harm

from the this-is-a-bad-approach dept

It's no secret that there are a bunch of folks in the Senate who really, really, really dislike the fact that the site Backpage has been abused by some users for sex trafficking. They should be happy that through a lot of public pressure, Backpage has shut down its adult section.

For reasons that are not entirely clear, many people seem to blame Section 230 of the CDA for the fact that sex traffickers have used Backpage.com. This is... weird and doesn't make much sense. After all, Section 230 doesn't apply to federal crimes around sex trafficking. So, if the platform itself is violating the law, the DOJ has the power and every right to go after the platform. Furthermore, as we've noted time and time again, these platforms have actually been tremendously helpful in allowing law enforcement to track down those responsible for trafficking and to help victims of trafficking. Still, because of this misplaced focus on CDA 230, earlier today, a bunch of Senators released a counterproductive and dangerous bill that would blow a massive hole through CDA 230, and it's clearly written 100% to focus on Backpage. Nearly all of the quotes about the bill from the Senate co-sponsors mention Backpage.

And that's... odd. Because just two years ago, Congress passed, and President Obama signed, another anti-trafficking bill that had provisions that were similarly designed solely to target Backpage. So why aren't those actually being used if Backpage is such a problem (and, again, the DOJ could easily go after Backpage for violating trafficking laws if it actually did so). It's especially odd that none of the supporters of this new bill even mention the fact that they passed a similar "kill Backpage" bill just two years ago and no one's tried to use it.

And even worse, the approach in this new bill, dubbed the Stop Enabling Sex Traffickers Act, will be massively counterproductive to the goal of stopping sex trafficking. While the bill's supporters claim it is "narrowly focused," it is anything but that. It opens up a giant hole in CDA 230 -- the law that protects internet platforms from being blamed for the actions of their users -- saying that if federal sex trafficking violations (which, again, are already NOT covered by CDA 230) are involved, state Attorneys General and private individuals can now sue platforms -- especially if the platforms have "knowledge" of how they're being used for trafficking.

Law professor Eric Goldman has a thorough description of the problems with the bill.

what online services will be regulated other than Backpage? The press release accompanying the Senate bill draft references Backpage a half-dozen times. Is this law only about making sure a single company, Backpage, is dead dead dead? Or will the bill reach other online services? If so, who? The most likely answer is that this law potentially implicates every online service that deals with user-generated content, which would make this an unusually wide-ranging bill.

what about the SAVE Act, the law (sponsored by Rep. Wagner) that Congress passed in 2015 to kill Backpage? The bill’s press release doesn’t mention the SAVE Act once, even though it was designed to accomplish the same policy goals. Why not? Did Congress misjudge the policy efficacy of that law? Or perhaps it’s too early to judge the SAVE Act’s efficacy? A federal grand jury in Phoenix is considering indicting Backpage or its executives, and the odds are that the SAVE Act would be key ground for such an indictment. So perhaps Congress has already enacted all of the legislation it needs to kill Backpage…? If so, a new and major exclusion to Section 230 would not add any new policy benefits but would come with substantial policy costs.

does the elimination of a centralized online prostitution ad venue actually improve the situation for victims of sex trafficking? This is the fundamental policy objective of the bill, but I have yet to see any good evidence demonstrating this outcome. Maybe it’s so intuitive (shut down Backpage, victims are better) that members of Congress don’t expect to see any proof, but this is hardly intuitive to me. We’ve seen over and over again that anti-prostitution regulations redirect the demand for prostitution elsewhere. If this bill accomplishes its goal, where will that demand get redirected, and how will that affect victims? We’ve also seen many successful victim protection efforts by law enforcement using the public ads as leads/evidence. What will happen to those enforcement efforts, and what does that mean for the overall protection of victims?

what existing laws will be newly excluded from Section 230, and how will plaintiffs use those laws? I am extremely confident that none of the bill co-sponsors have comprehensively inventoried the existing state laws that will have tenable causes of action against online intermediaries once Section 230’s immunity is lifted. It could be zero laws (unlikely); it could be hundreds or thousands of new laws. Shouldn’t we model these effects before unleashing those laws?

I'd argue there are even bigger problems with the bill as well, focused on this: the end result will almost certainly be seriously counterproductive to the goal of ending trafficking. CDA 230 has two provisions that work together in unison: one that protects platforms from liability for actions of their users and a second one that is equally important (but often forgotten) that says that if a platform does moderate content, that moderation does not introduce new liability. The combination of these two provisions actually encourages platforms to monitor and police themselves, without adding a risk of new liability.

However, this new law completely undermines that. It includes a provision that says "knowing conduct" makes you liable for assisting, supporting or facilitating trafficking. And how might one "know" of such conduct? If you know how your platform is being used. Thus, the end result of this bill would be the exact opposite of what its sponsors are seeking. It will encourage platforms to turn a blind eye to what's happening on their platform, out of fear that reviewng or moderating content might be used as evidence of "knowledge." Yikes!

Even worse, this will undermine a bunch of ongoing projects that the tech industry has put together to help stop trafficking already. If you look at what programs are actually effective, they tend to involve tech companies actively working on solutions and information sharing. But, now, if a tech company works on one of those programs, that could be used as evidence by grandstanding state Attorneys General or trial lawyers as "evidence" of "knowledge" of their platforms facilitating trafficking! Why would any tech company continue working on these effective programs when the "thanks" they'll end up getting are a bunch of lawsuits?

And, we've already seen years of state AGs grandstanding on issues by blaming tech companies for things their users do, as well as hundreds, if not thousands, of frivolous lawsuits where private individuals and companies sue platforms over actions of their users, all trying to find holes in CDA 230. And this bill opens up a wide one. Just make some halfway credible claim that someone somehow engaged in trafficking uses the platform and voila. The liability for platforms is going to be amazing, and the end result is... what? Backpage has already shut down its adult section, and sex trafficking has just moved elsewhere. The bill doesn't target the actual perpetrators at all. It will just make them harder to find.

Tech companies who currently help catch traffickers will now be told not to do that out of a fear of liability. Platforms that already cut off traffickers from using the platform will now have the incentive to turn a blind eye (and certainly not to help law enforcement). And a ton of frivolous lawsuits will likely be filed. And it's all to "stop" Backpage -- a company that has already decided to stop accepting such ads.

Sex trafficking is a real and serious problem. But this weird sledge hammer approach directed at one particular company -- Backpage -- is misguided on so many levels. It doesn't provide the DOJ with any more tools than it already had to go after Backpage, if the company violated the law. It only provides more tools to state AGs and trial lawyers to bring frivolous lawsuits and fishing expeditions against tons of other companies, many of whom have actively helped to attack the problem of trafficking. And, the bill is designed in a way that encourages them to stop helping.

And make no mistake, those who speak up against this bill will be unfairly attacked with a broad brush, with claims that they're "supporting" trafficking by opposing this bill. But the opposite is true. This bill will not help stop trafficking. In all likelihood it will make the problem worse.

Filed Under: bob portman, cda 230, claire mccaskill, good samaritan, richard blumenthal, section 230, sex trafficking, trafficking
Companies: backpage

Court Says Google Doesn't Have A First Amendment Right To Drop A Site From Its Search Results

from the that's-not-good dept

About a decade ago, we wrote about a series of silly lawsuits against Google in which search engine optimizers sued Google because their search engine ranking sucked. All of these lawsuits went nowhere fast. The reason why seems fairly straightforward: it's Google's search engine, and it gets to decide how its algorithm works. Having the courts come in and start mucking with that gets problematic fast.

While I thought those kinds of cases went out of style a decade ago, apparently another SEO firm, called e-ventures, sued Google after the company called e-ventures' site "pure spam" and removed it from the Google Index. This is a level of punishment that Google has been known to slap on really egregious and sketchy SEO tactics. Google takes a pretty hard line on really scammy tactics, and even once famously banned BMW's website for spammy techniques.

Apparently, at some point, Google's web spam team decided that e-ventures was spamming as well, and removed its website. The company sued under a variety of theories, but mainly claims that it did nothing that violated any of Google's stated rules -- and furthermore that Google was misleading in some of its public statements about what it will and won't remove from the web, as well as how it alerts people to those removals. Google hit back with two responses in a motion to dismiss. First, it said that it's protected under CDA 230 for removing content and second that the choices it makes on how the search results are ranked are protected by the First Amendment.

Somewhat surprisingly, the district court has rejected both of these arguments. This is troubling for a few reasons, as we'll explain here.

First: the CDA 230 claim is a different one than we normally talk about with CDA 230. Normally we're focused on CDA 230(c)(1), which talks about a service provider not being treated as the publisher of content from users. Here, no one denies that this is about Google's own search engine and own actions. But Google is pointing to a different part of the law, sometimes known as the "Good Samaritan" clause in CDA 230(c)(2)(A), which says that no provider shall be held liable for "any action voluntarily taken in good faith to restrict access to or availability of material...." This was designed to actually encourage sites to take down sketchy or "obscene" content. Basically, it's saying that if you decide to take down some content you deem to be obscene it does not remove your Section 230 immunity, and it doesn't mean you're now required to take down content other people find obscene. Google's argument is that this applies to search removals as well, and since it's making a good faith effort to remove content it finds objectionable, it's protected from liability.

This argument seems pretty strong within the context of Section 230, but the court doesn't buy it, though it's reasons are kind of odd:

The CDA statutory immunity is an affirmative defense which plaintiff is not required to negate in its Complaint. The plain language of the CDA only provides immunity for actions “voluntarily taken in good faith.”... While the CDA defense may properly be considered if it is apparent from the face of the complaint, that is not the situation in this case. Here, plaintiff has included allegations within its Second Amended Complaint that Google failed to act in good faith when removing its websites from Google’s search results.

But that seems to wipe away much of CDA 230(c)(2)(A). So long as the plaintiff claims that a content removal is in "bad faith" you lose the immunity? That can't be right... but the court says it's fine for now.

Perhaps the bigger issue, though, is the First Amendment claim. Again, the court rejects Google's arguments, and tries to thread the needle carefully. It says that it agrees that Google's search rankings are protected by the First Amendment, but that the real issue here is not the actual search rankings, but rather the statements Google made about why it removes some sites.

While a claim based upon Google’s PageRanks or order of websites on Google’s search results may be barred by the First Amendment, plaintiff has not based its claims on the PageRanks or order assigned to its websites. Rather, plaintiff is alleging that as a result of its pages being removed from Google’s search results, Google falsely stated that e-ventures’ websites failed to comply with Google’s policies.... Google is in fact defending on the basis that e-ventures’ websites were removed due to e-ventures’ failure to comply with Google’s policies.... The Court finds that this speech is capable of being proven true or false since one can determine whether e-ventures did in fact violate Google’s policies. This makes this case distinguishable from the PageRanks situation. Therefore, this case does not involve protected pure opinion speech, and the First Amendment does not bar the claims as pled in the Second Amended Complaint.

This feels like the strongest point the court has, but it still feels pretty weak. Google's policies include some basic catch-alls, saying that it can choose to remove search results based on "policies." That is, it can basically decide what it wants in the search results. And that seems perfectly reasonable. It seems dangerous to think that courts can tell a website what must be included in their search engine.

The court also rejects another First Amendment argument in a way that also seems problematic -- saying that while "editorial judgment" is protected by the First Amendment, anti-competitive motives are not:

While publishers are entitled to discretion for editorial judgment decisions, plaintiff has alleged that Google’s reason for banning its websites was not based upon “editorial judgments,” but instead based upon anti-competitive motives.... Further, a fact published maliciously with knowledge of its falsity or serious doubts as to its truth is sufficient to overcome the editorial judgment protection afforded by the Constitution....

Two thoughts on this: first, the idea that Google is removing an SEO company's websites because of anti-competitive reasons seems ludicrous on its face. I mean, Google links heavily to a number of actual direct competitors all the time. It's beyond reason to suggest that it would target a small no-name SEO firm. Second, again, this semantic setup gives a massive out on the First Amendment. Just claim anything is not "editorial judgment" but "anti-competitive motives" and suddenly the First Amendment issue gets tossed aside?

The court also lets motions around trademark, unfair practices and tortious interference move forward, but they're basically rehashes of the points above. The only count it dismisses is a defamation claim, which was a clear nonstarter.

While the ruling doesn't mean that e-ventures will succeed overall, since these issues can be debated again in more detail as the case moves forward, it seems likely that Google may try to appeal the basis for these denials. No matter what you think of Google as an entity, having courts tell it what can and cannot be in its index seems very dangerous.

Filed Under: cda 230, first amendment, free speech, good samaritan, rankings, search engine, search results, seo, spam, web spam
Companies: e-ventures, google

Anonymous 'Good Samaritan' Pays Justin Carter's $500k Bail After 4 Months In Jail For Online Trashtalk

from the that's-quite-a-good-samaritan dept

We've written a few times about Justin Carter, the teenager in Texas who has been held in jail (at times, in solitary confinement) since March because of an obviously sarcastic trash-talking joke he made on Facebook, which a woman in another country saw and reported to the police as a "terroristic threat." As of today, it appears that Carter is finally out of jail, thanks to someone anonymously donating the money for his $500,000 bail:

Justin Carter's attorney has confirmed that Carter is out on bail as of Thursday, July 11. An "anonymous good Samaritan" donated $500,000 to the Carter family so they could make bail for Justin, said defense attorney Don Flanary.

First of all, that's an impressive "good Samaritan." Second, this whole thing is a travesty. He clearly never should have been arrested, never should have been held in jail for months, and should have been released and had everything dropped the second anyone with more than half a dozen brain cells looked at what he actually said and the context of it. The fact that he's been in jail all of this time, and that bail was set at an outrageous $500k -- and, of course, the fact that he's still facing charges of making a "terroristic threat" -- are complete travesties, showing a justice system that is out of control.

Filed Under: bail, good samaritan, justin carter, sarcasm, terroristic threats