Senator Kamala Harris Serves Up A Not-Completely-Terrible Revenge Porn Bill

from the Oscar-season-but-for-pet-projects dept

Senator Kamala Harris -- famous here mostly for her constant, Quixotic attempts to turn Backpage into a criminal defendant -- is now crafting laws at the federal level. Her support for the internet-crippling SESTA is already known. Her next target, apparently, is revenge porn purveyors.

Harris' bill [PDF] will likely be remembered more for its too-clever acronym than its content. The ENOUGH Act of 2017 (brace yourself: Ending Nonconsensual Online User Graphic Harassment) is another attempt to criminalize revenge porn at the federal level. The problem is the subject matter is slippery and difficult to nail down precisely enough to avoid First Amendment concerns.

The bill does make an attempt at narrowly crafting a definition and at least tries to limit the liability of platforms hosting user-generated content, but it still has some issues. For one, the definition of images covered by the act is a bit too vague to prevent the possible criminalization of harmless images.

The term ‘intimate visual depiction’ means any visual depiction (as that term is defined in section 2256(5)), in original or modified format, of an individual who is reasonably identifiable from the image itself or information displayed in connection with the image, in which—

(A) the individual is engaging in sexually explicit conduct; or

(B) the naked genitals or post-pubescent female nipple of the individual are visible.

The non-consensual sharing of photos of men clad only in their underwear is apparently fine as only the female nipple is afforded protection. And if all it takes is an exposed female nipple to trigger possible charges, anyone who captures images of wardrobe malfunctions, breastfeeding mothers, or topless protesters better have some waiver forms on hand.

But beyond that, there's the issue of sharing of any explicit depiction without the consent of all parties. Any non-consensual sharing of depictions of sexual activity and/or nudity is criminalized unless the person can show the sharing was a "matter of public concern." This would be the bill's journalism exception. There are also exceptions for law enforcement, legal proceedings, and "good faith" reporting of unlawful activity.

What makes this bill a bit better than many of its competitors is the burden placed on the government to prove intent.

[I]t shall be unlawful to knowingly use any means or facility of interstate or foreign commerce to distribute an intimate visual depiction of an individual—

(1) with knowledge of or reckless disregard for—

(A) the lack of consent of the individual to the distribution;

(B) the reasonable expectation of the individual that the depiction would remain private; and

(C) harm that the distribution could cause to the individual; and

(2) without an objectively reasonable belief that such distribution touches upon a matter of public concern

The bill also drags service providers into the mix, but fortunately doesn't expect them to police content or otherwise threaten their Section 230 protections. The only service providers that would be targeted would be those that "intentionally solicit and predominantly distribute content" that the provider "knows" is in violation of the law. So, there's intent needed to be proven there as well.

Still, the bill has some questionable components. First, the bill treats threats of publication as equally criminal as actual publication. In both cases, violators could be subject to an unspecified fine and up to five years in prison. It also includes an extraterritoriality clause that would allow the US to pursue overseas violators as long as the subject depicted was an American. We'll have to see if that still holds up once Congressional lawyers have taken a look at it.

Overall, the bill isn't terrible. It requires a showing of intent, something other revenge porn laws have disregarded. It does still present some First Amendment issues because the stipulations attached to violation (expectation depiction would remain private, distribution would cause harm to the subject depicted, etc.) are bound to swallow up some journalistic endeavors or documentation of sexual assault allegations (if the latter isn't shared exclusively with law enforcement). The edge cases will be left to prosecutors' discretion, which definitely isn't a good thing. All the evidence needed to argue for less prosecutorial discretion is the long string of embarrassments committed by prosecutors pursuing charges against sexting teens.

Given the aggressiveness of Harris' pursuit of Backpage for sex trafficking, it's somewhat of a surprise to a Harris-backed revenge porn bill take a mostly hands off approach to internet service providers. Still, there's a chance the bill could be made worse after a few markup rounds, turning it from an almost-acceptable piece of legislation into a speech-chilling, Section 230-damaging monstrosity.

Filed Under: intermediary liability, kamala harris, revenge porn

California Case Against Backpage Moves Forward Over Money Laundering Claims

from the why-do-we-need-to-change-cda-230? dept

Late last year, we wrote about ridiculous charges by California's then Attorney General, Kamala Harris, against Backpage.com for "pimping." As we pointed out at the time, Harris clearly knew the case was a loser. It completely exaggerated what Backpage had done, and Harris herself had earlier admitted that she had no authority to go after an internet platform for how people used it. A judge quickly threw out the charges against Backpage... and Harris turned around and filed even more charges against Backpage's execs, including repeating the pimping charge and adding in "money laundering."

As we noted at the time, the money laundering charges seemed pretty questionable. It's based on the fact that Backpage had set up a separate (and separately named operation) to handle billing. The complaint argues that this was a form of money laundering, to hide from credit card companies that the money was being spent on prostitution. That leaves out, of course, that part of the reason why Backpage likely had to set up such a structure was because Cook County Sheriff Thomas Dart had threatened credit card companies if they didn't stop working with Backpage -- a move that was later deemed to be a clear First Amendment violation against the company by Sheriff Dart.

In a new ruling in the case in California, the court has thrown out nearly all of the charges -- including the "pimping" charges that were already previously thrown out. But they are allowing the money laundering charge to go forward -- though it does appear the court recognizes that the state will have a hard time winning it's case.

This Court agrees the complaint is not a model of clarity. However, the nature of the charges and theories of prosecution are ascertainable from the amended charging instrument. Specifically, the People now allege that Defendants conspired to orchestrate a bank fraud by misrepresenting to credit payment processors that they were not processing transactions from Backpage, and this misrepresentation would trigger a release of funds from banks. The overt acts alleged clarify that Defendants created multiple classified websites, and when applying for (at least one) merchant account, Defendant Ferrer omitted any reference to Backpage, despite intending to process Backpage transactions through the account. The People allege that credit payment processors, along with American Express, would not have knowingly processed the payments for Backpage and the banks would not have released funds absent Defendants’ trickery.

These allegations provide sufficient notice for Defendants to understand the nature of the charges and prepare a defense. Essentially, either Defendants did - or did not - materially represent to credit payment processors in a scheme to fraudulently obtain money from banks. If Defendants did so, this may form the basis for a money laundering charge. (Cf. United States v. Mason (9th Cir. 1990) 902 F.2d 1434, 14431 [federal money laundering conviction supported by evidence that bank would not have opened a merchant account had it known it was laundering credit charges for prostitution; the false representation to the credit processor influenced the bank’s release of funds].) The factual resolution to that question, however, is not at issue here. What is at issue is whether the First Amended Complaint has been sufficiently pled to meet statutory and due process requirements.

The ruling goes on to note that California prosecutors "must show that the profits came solely from that underlying criminal activity" which may be difficult, given that it's repeatedly failed to show any underlying criminal activity done by Backpage itself (rather than Backpage's users -- many of whom may, in fact, be engaged in criminal behavior). The court also does toss out some of the money laundering charges: the ones based on the completely bogus "pimping" charges.

Of course, it's important to note that this case continues against the backdrop of Congress rushing headlong towards trying to amend CDA 230 to allow states, like California, to bring charges against companies like Backpage (and to allow individuals to sue in civil court as well).

As we've discussed, that bill, called "SESTA," will almost certainly do a lot more harm than good for the victims of sex trafficking. However, it is important to note that when the bill was introduced, it was clearly designed to target one company in particular: Backpage. Just read the quotes from various Senators co-sponsoring the bill, who make it clear that the bill is to take down Backpage:

Senator Portman: “Stopping trafficking is one of the great humanitarian and human rights causes of the 21st century. Our bipartisan investigation showed that Backpage knowingly facilitated sex trafficking on its website to increase its own profits, all at the expense of vulnerable women and young girls. For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us. This bipartisan, narrowly-crafted bill will help protect vulnerable women and young girls from these horrific crimes.”

Senator Blumenthal: “Our narrowly tailored legislation would give victims of sex trafficking their day in court. For too long, countless young people have been victims of prostitution, human trafficking, and horrendous violence through ads on websites like Backpage.com. This is not an abstract debate: these advertisements come with a real, unconscionable human cost.”

Senator McCain: “For years, Backpage.com has knowingly facilitated online sex trafficking and child exploitation, destroying the lives of innocent young women and girls,” said Senator McCain. “It is disgraceful that the law as written has protected Backpage from being held liable for enabling these horrific crimes. Our legislation would eliminate these legal protections and ensure companies like Backpage are brought to justice for violating the rights of the most innocent among us.”

Senator McCaskill: “Until our investigation showed Backpage was actively facilitating sex trafficking, the company had repeatedly used the federal law that protects online platforms to escape accountability for the disgusting crimes it aided. But even as we’ve helped deny Backpage its legal shield in these cases, we need a broader effort to stop the next Backpage, before it starts. And that’s what this bipartisan bill is all about—better protecting Missouri’s families from sex trafficking by making clear to any company considering going into business with sexual predators, that the law won’t protect them from responsibility.”

Senator Heitkamp: “For too long, websites like Backpage.com have profited from knowingly facilitating the sex trafficking of minors and others through the use of their online platform – in many instances, helping traffickers skirt law enforcement and their own standards to advertise minors for sex. And what’s worse: they’ve been able to continue doing this without penalty by claiming protection under the First Amendment. That’s a disgusting and cowardly invocation of one of our nation’s most cherished freedoms – neither the First Amendment nor the Communications Decency Act was written to shield those who help enslave and sell children for sex. It’s past time to hold websites that make money from sex trafficking accountable, just as our laws already do for traffickers, for the enslavement and abuse of men, women, and even children – who have been reportedly trafficked at a near 850 percent increase since 2010 largely because of the anonymity internet sales provide – and our bipartisan bill would work to do that by cracking down on these horrific crimes online.”

Senator Klobuchar: “Websites like Backpage.com facilitate sex trafficking across Minnesota and our country. But shutting down these sites isn’t enough, we need to stop protecting perpetrators and ensure victims are able to seek the justice they deserve. The bipartisan Stop Enabling Sex Traffickers Act is another step forward to putting an end to these crimes once and for all.”

Senator Lankford: “Heinous crimes like sex trafficking deserve to be met with the fullest extent of the law. We must eliminate loopholes to prevent any entity from avoiding the justice they deserve. This legislation is needed to help protect vulnerable people from modern-day slavery, which unfortunately has been facilitated more and more online. I’m proud to work with my colleagues on the PSI Subcommittee to not only investigate Backpage, but to address the urgent, moral issue of human trafficking.”

Senator Lee: “The Communications Decency Act was never meant to provide immunity to websites like Backpage.com. Today’s legislation will deter others from facilitating sex trafficking and allow victims the possibility of restitution, while preserving the core protections of Section 230.”

Senator Rubio: “Perpetrators of human trafficking and websites like Backpage.com that knowingly facilitate sex trafficking of children must be held accountable. Sex trafficking is an ongoing issue in Florida and across our nation, and this legislation is an important step forward in ensuring that those engaging in and helping to facilitate these crimes are held responsible and all victims receive the justice they deserve.”

And yet, as we pointed out, nothing in CDA prevents the DOJ from going after Backpage if it actually engaged in prostitution or sex trafficking. Indeed, it's been widely reported that the DOJ has been investigating Backpage. The fact that no charges have been brought by the DOJ is at least worth noting. It's possible that more investigation is needed, or it's possible that there actually isn't a violation that the DOJ could find.

But, either way, this latest ruling, allowing at least some of the money laundering charges to move forward raises the question of why we need to rush forward with this new bill, that will have massive and much wider consequences for the internet. Law professor Eric Goldman has a thoughtful analysis of this latest ruling, in which he suggests this shows that calling out Backpage by all those Senators has likely always been a smokescreen for attacking the underpinnings of the internet:

This ruling has potentially important consequences for the pending bills to amend Section 230. Much of the rhetoric about the bills has specifically targeted and called out Backpage–and only Backpage. A key assumption for the bills is that Backpage needs to be crushed and existing law isn’t getting the job done because of Section 230. As this ruling shows, existing law may in fact be sufficient to crush Backpage irrespective of Section 230. As a result, there is no need–and certainly no urgency–to rush through amendments to Section 230, with potentially major consequences for the entire Internet, while courts are still resolving the matter. (Indeed, that would be true even without this ruling because of the pending grand jury investigation into Backpage in Phoenix that may use the SAVE Act, the anti-Backpage law Congress just enacted in 2015).

However, it’s possible that, despite the anti-Backpage rhetoric, the advocates supporting the pending bills aren’t really targeting just Backpage but have larger objectives to undermine or eviscerate Section 230. I expect this ruling will expose the advocates’ true agendas. Because a state prosecution of Backpage is making progress without any changes to Section 230, those advocates should be willing to acknowledge that amendments to Section 230 aren’t essential to achieve their anti-Backpage goal. More likely, I expect the bill supporters to shift the rhetoric about the need for the bills to deemphasize Backpage as the target. If so, this would highlight that Backpage was only a surrogate target–and other Internet entities are also in the bills’ target sights. Once that rhetorical shift occurs, I think we deserve clear answers about who else the proponents expect will be affected by the bills–and how.

Again, SESTA is a huge threat to the way the internet works today -- and in a way that will actually do great harm to actual victims of sex trafficking. It's really depressing that those whose true aims are to undermine the internet are so coldly hiding behind false claims of protecting victims of sex trafficking just to attacking the internet.

Filed Under: california, cda 230, intermediary liability, kamala harris, money laundering, section 230, sesta
Companies: backpage, backpage.com

Congressperson's Sex Trafficking Bill Looks To Carve Holes In Section 230 Immunity

from the first-they-came-for-the-worst-of-the-worst... dept

Law prof Eric Goldman -- who's covered numerous internet-related cases over the years -- is sounding the alarm about a draft bill [PDF] circulating Congress which could do some very serious damage to the internet itself. The bill aims to undercut Section 230 protections in the name of preventing sex trafficking.

The draft bill is called the “No Immunity for Sex Traffickers Online Act of 2017.” It’s authored by Rep. Ann Wagner (R-Mo.). The bill would amend Section 230 in two main ways:

1) it would add a new statement to Section 230’s purpose: “to ensure vigorous enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking of children, including through the availability of a civil remedy for victims of sex trafficking of children”

2) it would exclude the following claims from Section 230’s immunity:

– “any State criminal statute relating to sexual exploitation of children or sex trafficking of children” from the immunity

– 18 USC 1595, which has a civil remedy for sex trafficking

– “any other Federal or State law (to the extent such law does not impose criminal penalties) relating to sexual exploitation of children or sex trafficking of children”

As Goldman points out, Wagner's bill is clearly aimed at Backpage. If it ever makes its way into law, it will arrive far too late to wield it against Backpage and its owners, but it could be used to initiate prosecutions against other site owners for content posted by their users.

Maybe Rep. Wagner was just waiting for a like-minded legislator to come along and help push some bad ideas towards the president's desk. The recent arrival of former California attorney general Kamala Harris (a newly-elected Senator) should ensure lousy, internet-damaging bills aren't limited to the House. It's a chance to make earlier complaints become debilitating statutes. Goldman notes the bill not only duplicates Rep. Wagner's previous human trafficking law (which was passed), but echoes a "Let's Blame Backpage!" letter sent to Congress back in 2013.

[I]n 2013, 47 state AGs (including California’s then-AG and now-Senator Kamala Harris) sent a letter to Congress complaining that Section 230 prevented them from squashing Backpage and requesting that Congress amend Section 230 to exclude all “federal *and state* crimes.” Congress never responded to the letter–until now. Consistent with the AGs’ request, Rep. Wagner’s bill would open up Section 230 to state crimes, but only if the crimes relate “to sexual exploitation of children or sex trafficking of children”–a smaller universe than the AGs’ request to open up *all* state crimes.

The same idea -- a "narrow" exception to Section 230 immunity -- has been floated as a way to tackle the revenge porn problem. It's almost always easier to locate and serve/prosecute site owners than it is to go after those actually violating laws. The problem for most prosecutors (and plaintiffs) is they're prevented from doing so by Section 230 immunity. This is the way it should be. The target of prosecution/litigation should be the person causing the harm or breaking the law, not the person(s) easier to locate and punish.

What proposals like this do -- if they become law -- is create small fractures in Section 230 protections. These will eventually become actual holes as prosecutors, politicians, and courts carve out more and more exceptions as the activity they're trying to prevent moves to other platforms either to escape scrutiny or because site owners and service providers are unwilling to host anything that might see them being held responsible for users' content.

The strict liability rule might run into First Amendment concerns, but we won’t know that until the court challenge. As we know, if there’s not a single home for them, online prostitution ads migrate into other topics. So any classified ad or message board service–even those that are completely free–would need to prescreen most/all user postings to screen out the possibly-small percentage of those postings that violate the new law. The overall cost imposition on publishers, and associated chilling effect, attributable to the law would be huge.

The most serious problem Goldman sees -- and his reason for even bothering to discuss a draft bill -- is this is the sort of thing that could actually pass in the current political climate. The California AG who engaged in a personal vendetta against Backpage is now a US senator. The author of this bill is a Republican sitting in a Republican-controlled house. The bill targets child sex trafficking, which is of course the worst kind of sex trafficking. And who's going to stand up in the House or Senate and claim they're against preventing the trafficking of children for sex? Clearly no one wants to take that public stance, even if they know the bill would do harm to the First Amendment while having almost no effect on eliminating sex trafficking.

Then there's the internet service providers themselves. As Goldman notes, they weren't exactly rallying around Backpage as politicians and prosecutors used it for a punching bag and a useful analogue for everything that's wrong with the internet.

[I]t’s unclear that the major Internet companies will oppose the bill. They’ve frequently stayed on the sidelines during Backpage’s battles, content to let Backpage carry the water for everyone. With Backpage out of the industry, they no longer get the free ride. This draft bill will force a decision: acquiesce or fight. I don’t know what they will choose.

Small exceptions become huge problems. Mission creep, combined with most politicians' innate ability to make bad things even worse, means this proposed exception to Section 230 protections won't stay narrow and limited for long. Fortunately, the bill's a long way off from a president's signature. But the opposition to legislative ideas like this needs to remain loud and constant.

Filed Under: ann wagner, intermediary liability, kamala harris, moral panic, section 230, sex trafficking
Companies: backpage

Lawyer's Association Asks New California Attorney General To Drop Its Abusive Prosecution Of Backpage

from the Kamala-Harris'-legacy-isn't-worth-protecting,-much-less-continuing dept

The First Amendment Lawyer's Association (FALA) is hoping to end the California Attorney General's crusade against Backpage. The website has already ceded ground in the face of constant criticism, investigations, and legal threats. Earlier this year, it shuttered its adult ads rather than continue to bleed money and time defending itself against bogus prosecutions and investigations.

Former California Attorney General Kamala Harris -- who blew off court decisions against her office to continue to prosecute Backpage -- has now moved on to the US Senate. But just because Harris has moved on doesn't mean the local AG's office isn't going to continue with Harris' unfinished business.

The letter from FALA is covered (but not published[?]) by Elizabeth Nolan Brown at Reason.

On March 14, FALA—a nonprofit membership association launched in the late '60s that has boasted some of the country's top constitutional lawyers—sent a letter to Becerra condemning "the abusive prosecution of individuals associated with the online classified advertising website Backpage.com, and also the use of expansive search warrants seeking vast amounts of constitutionally-protected material, including personally identifiable information about all of the website's users." In the letter, FALA President Marc Randazza says he can identify "no theory under the First Amendment that would countenance such an abusive use of prosecutorial discretion or such a dragnet demand for information."

The letter points out the flaws of the AG's case against Backpage. Not only does it do damage to protected speech, but it ignores Section 230 protections in the ongoing quest to punish the site's owners for the actions of its users.

On top of that, there's the overbreadth of prosecutors' demands for info from the site. Not content to steamroll the First Amendment, the office also made a mockery of the term "investigation." From the letter:

We have learned that a subpoena was served on Backpage.com that calls for the production of massive amounts of information for a several-year period, including copies of all advertisements posted (in all content categories), all billing records, the identities of all of the website's users and their account histories, all internal communications, and even the source code for the operation of the website.

As FALA points out, this sounds a whole lot like the colonial-era "general warrants" -- the same ones our government sought to eliminate with the Fourth Amendment.

On the plus side, the new California Attorney General has pledged to protect civil liberties. FALA's hoping that pledge extends to Kamala Harris' unfinished business.

Filed Under: california, first amendment, free speech, kamala harris, section 230, xavier becerra
Companies: fala, first amendment lawyers association

Prosecutors And Anti-Sex Trafficking Advocates Aren't Happy With The Government's Treatment Of Backpage

from the thanks-for-making-everything-worse dept

Kamala Harris -- former California Attorney General and current US Senator -- may have failed in her attempt to take Backpage down, but her dubious legacy lives on. The same day the US Supreme Court denied certification to an appeal of a decision in favor of Backpage and its Section 230 protections, Backpage shut down its adult ads rather than face additional prosecution/persecution from misguided politicians like Harris.

While all those who went after Backpage pat themselves on the back for making NO DIFFERENCE WHATSOEVER in the battle against sex traffickers, those involved in the day-to-day work of tracking down sex traffickers down aren't nearly as thrilled.

As has been noted here on multiple occasions, shutting down a service used by some for illegal activity just buries the illegal activity even deeper underground. Backpage's adult ad closure means traffickers will be moving to other venues -- ones not being actively watched by law enforcement, no doubt including sites they're not even aware of. As for sex workers who used Backpage to advertise adult services, they've simply moved their ads to other sections of the site. So, all the grandstanding has done nothing to harm sex traffickers. It has done a bit of damage to sex workers. But it's caused the most harm to law enforcement.

David Meyer Lindenberg of Fault Lines points out that those actually involved with the fight against sex trafficking are angered by the vindictive prosecution of Backpage. It may have helped net Kamala Harris a new job where she can screw things up at the federal level, but it's done nothing to combat trafficking.

He highlights a handful of quotes from a Miami Herald article on the Backpage adult ad shutdown.

“It would be a mistake for investigators or prosecutors to assume that trafficking will decrease because of the shutdown of Backpage’s escort ads,” said Jane Anderson, a former Miami-Dade assistant state attorney who now works for AEquitas, an anti-human trafficking resource organization for prosecutors.

“In fact, investigators and prosecutors must now be even more proactive and resourceful to uncover trafficking that is occurring on lesser known websites, including other areas of Backpage.”

[...]

“It’s a symbolic crusade,” said Kimberly Mehlman-Orozco, an author and criminology professor at George Mason University who serves an expert witness in human-trafficking cases. “They’re trying to get some accolades and look like the heroes. It’s having a negative effect on the ability for law enforcement to rescue victims and prosecute offenders. The best we can do is facilitate the capabilities of police to investigate.”

That's the damage done whether or not you believe Backpage was used by sex traffickers. Realistic stats on sex trafficking are almost nonexistent and almost any law enforcement sweep designed to haul in traffickers just nets a bunch of consenting adults. What's never found is anything approaching the horror stories used to turn hysteria into perpetual funding -- the theory that thousands of teens are being forced to perform sexual acts by traffickers and (most ridiculously) shuttled around the country to serve attendees of major events ranging from the Super Bowl to local stock shows.

As Lindenberg notes, the only people celebrating this amazingly-hollow victory are those who abused their power to target a site over third-party content.

It’s notable how few people have come forward to defend what happened. The most vocal messages of support came from the participants themselves, who made a point of congratulating each other for their role in bringing it about. And when Florida prosecutors and the staff of Reason magazine agree that an act of government was ill-advised, you can be pretty sure it wasn’t the greatest idea ever.

That's how government power works. It's rarely effective, and it almost always results in unintended losses.

Filed Under: cda 230, human trafficking, kamala harris, law enforcement, prosecutors, section 230, sex trafficking
Companies: backpage

Merry Christmas: Kamala Harris Files Brand New Criminal Charges Against Backpage Execs After Last Ones Were Tossed Out

from the you-already-got-elected dept

Never let it be said that Kamala Harris gives up after being told her totally bogus legal crusade is totally bogus. She's now filed brand new charges against the execs who run Backpage.com -- despite having the very same lawsuit thrown out a few weeks ago. As you may recall, for years, Harris (and some other state Attorneys General) have been crusading against the classified website Backpage, because some of its users use it to post illegal prostitution ads. As has been explained dozens of times, the proper thing to do in those situations is to use that information to go after those actually breaking the law. Instead, Harris and others have whined about their desire to put Backpage execs in jail instead (which won't actually stop any illegal activity -- since it will just move to another site).

Let's be crystal clear here: California Attorney General Kamala Harris (who in just a few weeks will become a US Senator) knows that she has no legal basis for arresting the execs behind Backpage. How do we know she knows this? Because three years ago she signed a letter whining about how she had no legal authority to arrest Backpage because it's (rightly) protected by Section 230 of the CDA, saying that you can't blame a site for the actions of its users. So it did seem weird, back in October, when Harris -- along with Texas Attorney General Ken Paxton -- decided to arrest Backpage's execs anyway, and charge them with "pimping." As we note at the time, the criminal complaint against them was laughable and almost completely bogus. Not only was Backpage protected by CDA 230, but the actual investigation into Backpage undercut the case they were bringing, because it showed a willingness by Backpage to delete prostitution ads when brought to their attention by law enforcement, and to block those users from reposting.

So it was no surprise at all when the court quickly tossed all the charges against the execs, and told Harris to take it up with Congress... which, of course, is where she'll be in a month. However, not content to just try to change the laws, Harris has chosen to file brand new charges against the three execs, Carl Ferrer, Michael Lacy, and James Larkin. The press release from Harris claims that the reason for the new charges is that she's "uncovered new evidence" but that's a load of hogwash.

The new charges still include bogus "pimping" charges, but now also have a bunch of "money laundering" charges as well. And that sounds scary, but once again the details look to be complete bullshit. Basically, the "money laundering" is that Backpage set up a separate operation to handle billing, after American Express (under pressure from grandstanding politicians) said it no longer wanted to work with Backpage. So, the lawsuit argues, Backpage set up a sort of shell corporation to accept AmEx charges, without it looking like they were coming from Backpage. But in order for it to be money laundering, it has to involve a situation where the money itself is coming from illegal activity, and over and over and over and over again the courts have said that Backpage's activity is not illegal. In fact, that's what a court told Harris just two weeks ago.

This is a frightening abuse of power to harass a company just because Harris doesn't like how people use that company, and because she and her staff can't be bothered to do the actual law enforcement work of using that information to go after the actual lawbreakers. It's shameful.

Filed Under: california, carl ferrer, cda 230, james larkin, kamala harris, michael lacy, money laundering, pimping, section 230
Companies: backpage, backpage.com

Judge Tosses Charges Against Backpage Execs, Tells Kamala Harris To Take It Up With Congress

from the SENATOR-KAMALA-HARRIS...-thanks-2016 dept

California judge Michael Bowman hinted -- with a tentative ruling issued last month -- that he didn't think much of Attorney General (now US Senator)[ ಠ_ಠ ] Kamala Harris' grandstanding, misguided, First Amendment-damaging attempt to prosecute Backpage executives for pimping.

Not only did Harris pretend Section 230 immunization didn't exist, she actively fought to have the executives prosecuted for the actions of others. The twisted legal rationale deployed by Harris didn't win over Judge Bowman, who noted Backpage had, at best, republished third-party content. If Harris wanted site owners to be punished for third-party content, she would have to ask the nation's legislators to fix it.

As stated above, Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.

[Once again, Kamala Harris is NOW A US SENATOR.]

The judge rolled back a little of his pre-judgment, asking the state of California for more input before making his final decision. Harris' office took this opportunity to dump another 70+ pages of "damning" evidence into the judge's lap -- mostly internal emails that detailed how Backpage handled the aggregation of third-party content at two affiliated sites.

This wasn't persuasive. Judge Bowman stands by his original decision, leaving the above paragraph intact except for added emphasis on the last sentence. The court isn't here to fix legislation Kamala Harris doesn't like. That's up to Congress, an entity Kamala Harris is now unfortunately a part of.

The decision [PDF] reiterates Bowman's points: that what Harris is seeking to prosecute is actually protected by Section 230 immunity.

After considering the state's new evidence, Bowman concluded in a December 9 decision that "defendants have, at most, republished material that was created by a third party." The judge pointed out that California's declaration in support of the defendants' arrest warrant even stated that EvilEmpire.com ads were "essentially identical" to their Backpage.com counterparts. "This demonstrates republication, not content creation," and "republication is entitled to immunity under the CDA," wrote Bowman.

Judge Bowman did take a little time to call out Harris' disingenuous prosecutorial claims, focusing on the state's assertion, that moderation which removed illegal content was somehow an illegal act.

Assuming that the People's assertion is true; that the ad went from expressing intent to advertise prostitution to express a desire to 'date,' the People are essentially complaining that Backpage staff scrubbed the original ad, removing any hint of illegality. If this was the alleged content 'manipulation,' the content was modified from being illegal to legal. Surely the AG is not seeking to hold Defendants liable for posting a legal ad; this behavior is exactly the type of 'good Samaritan' behavior that the CDA encourages through the grant of immunity.

With that, the criminal charges against the Backpage executives have been vacated and their bond nullified. And the court helpfully reaffirms Section 230 protections at a time where they've been under increasing attack in California courtrooms.

Filed Under: congress, free speech, kamala harris, section 230
Companies: backpage

Judge Leaning Strongly Towards Tossing Pimping Charges Against Backpage Executives

from the when-all-you-have-is-a-grandstand... dept

Because there doesn't seem to be a politician out there that can interact with Backpages without grandstanding, the attorneys general of two states -- California's Kamala Harris and Texas' Ken Paxton -- combined forces to have company executives arrested on pimping charges.

The criminal complaint somehow tried to portray the fees charged by Backpage as profiting from prostitution. While it should have been explicitly clear Backpages was immune from prosecution thanks to Section 230, the two AGs decided to close their eyes, ears, and brains and press forward.

It's likely nothing will come of this misguided prosecution -- one that appeared to be instigated almost solely for the press it would generate, rather than for its legal merits. The California court handling the case has pretty much thrown the whole thing out.

It's a tentative ruling that doesn't have the full force of a published opinion behind it, but it does give the solid impression that any dreams of being able to prosecute site owners for third-party content will have to be taken to Congress, rather than local courts -- though, the judge has said he'll allow the parties to present more arguments before making a final decision. As it stands now, Section 230 prevents the sort of thing these two AGs are pursuing.

From the opinion [PDF]:

Backpage’s decision to charge money to allow a third party to post content, as well as any decisions regarding posting rules, search engines and information on how a user can increase ad visibility are all traditional publishing decisions and are generally immunized under the CDA. In short, the victimization resulted from the third party’s placement of the ad, not because Backpage profiting from the ad placement.

This does some pretty severe damage the state's argument that charging for ads means profiting from sex trafficking. The last paragraph of the ruling similarly upholds Backpage's Section 230 immunity, even as it moved content from site to site.

Here, the People allege that Defendants “created” content and are not entitled to immunity. However, on the face of the allegations, Defendants have, at most, republished material that was created by a third party. The People allege that the content was taken from ads placed by Backpage Escort users and posted onto EvilEmpire.com. The declaration in support of Defendants’ arrest warrant states that the ads placed in EvilEmpire.com were “essentially identical” to the ads placed by the third party on Backpage.com and that EvilEmpire was an “additional platform for Backpage Escort ads.” This demonstrates republication, not content creation. Republication is entitled to immunity under the CDA. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63.)

To make the charges stick, the state would have to prove that the Backpage actually participated in sex trafficking -- something no one has even alleged at this point. Instead, those fighting Backpage have simply chosen to attack the most visible target, rather than those posting ads and/or exploiting underage prostitutes.

The ruling says there's only one way to have the supposed immunity "problem" addressed and that's to push Congress into doing something about it.

As stated above, Congress stuck a balance in favor of free speech in that Congress did not wish to hold liable online publishers for the action of publishing third party speech and thus provided for both a foreclosure from prosecution and an affirmative defense at trial. Congress has spoken on this matter and it is for Congress, not this Court, to revisit.

No one should be in any hurry for Congress to take another look at Section 230 immunity. Right now, it does a very solid job protecting websites and social media platforms from the speech and actions of their users. Without it, the internet would be a much smaller, more-locked down venue for communication and nowhere near as useful for disseminating information. Anything Congress would do at this point would only harm it.

Politicians and prosecutors need to stop taking the easy route and go after those actually breaking the law. If cops want to track down sex traffickers and haul them to court, fantastic. But it does no one any good to pursue baseless pimping charges against site owners, rather than those actually engaged in criminal activity.

Filed Under: cda 230, intermediary liability, kamala harris, ken paxton, pimping, section 230
Companies: backpage

Arrested Backpage Execs Ask Kamala Harris To Drop Bogus Case She Herself Has Admitted She Has No Authority To Bring

from the grandstanding dept

A few weeks ago, we wrote about the absolutely ridiculous and unconstitutional charges brought by California Attorney General Kamala Harris and Texas Attorney General Ken Paxton against the online classified site Backpage.com. We focused on the fact that Section 230 clearly protects Backpage from such a lawsuit, and went into detail on the ridiculousness of Harris' "investigator" using the fact that Backpage itself actually worked with him to track down, remove, and block ads for prostitution as some sort of evidence of wrongdoing.

The execs are now hitting back -- as they should. They've asked the court to dump the case with a detailed and thorough filing. It highlights that the charges violate the First Amendment, Section 230 of the CDA and, at an even more basic level, the complaint doesn't even satisfy the requirements for "pimping," which is what they're charged with.

The AG’s Complaint and theory of prosecution are frankly outrageous. The AG seeks to impose criminal liability on a website simply because it published and received fees for third-party ads. The AG’s chrages directly contravene the First Amendment and the immunity afforded to websites under Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230. Escort ads on Backpage.com are protected speech under the First Amendment, as several courts have held. The AG cannot arrest, imprison and refuse to release individuals associated with the website simply based on an investigator’s opinions about what he believes is “obvious” about escort ads. Courts upholding the First Amendment rights of Backpage.com and its users have rejected the same tack time and again. The First Amendment also expressly precludes state authorities from imposing criminal liability on parties that publish or distribute speech absent proof of scienter, i.e., that the publisher knew the specific information published was unlawful. The Supreme Court so held over fifty years ago, Smith v. California, 361 U.S. 147 (1959), recognizing the First Amendment prohibits states from imposing criminal liability that would require publishers to review all materials they distribute, because such a requirement would severely chill speech. More specifically, the AG’s theory expressly violates Section 230, which Congress enacted twenty years ago to preserve and promote free speech on the Internet by immunizing website operators from liability for publishing content provided by third-party users. Section 230 preempts all contrary state laws—including state criminal laws. Indeed, Attorney General Harris has acknowledged that Section 230 precludes her from prosecuting Backpage.com, but she has now commenced a prosecution to do precisely what she admits Section 230 prohibits.

That point about Harris "acknowledging" that Section 230 bars this lawsuit is a big one. It's based on the letter that Harris signed onto, from a bunch of Attorneys General to Congress, asking it to change Section 230 to grant state AGs the ability to go after Backpage. We had written about this letter three years ago when it was sent, but I had forgotten that it explicitly called out Backpage.com, and noted that the reason they wanted Section 230 modified was because they knew it was immune from prosecution by those state AGs. The letter (again, that Harris herself signed), says:

In instance after instance, State and local authorities discover that the vehicles for advertising the victims of the child sex trade to the world are online classified ad services, such as Backpage.com. The involvement of these advertising companies is not incidental—these companies have constructed their business models around income gained from participants in the sex trade. But, as it has most recently been interpreted, the Communications Decency Act of 1996 (“CDA”) prevents State and local law enforcement agencies from prosecuting these companies. This must change. The undersigned Attorneys General respectfully request that the U.S. Congress amend the CDA....

Yet now, despite no change being made to the law, Harris thinks she can bring a case against them?

Separately, the lawyers have sent a letter to Harris directly reminding her of this and asking her to drop the case:

Ads posted on Backpage.com are protected by the First Amendment, as several courts have held. As the Seventh Circuit recently said in enjoining the Sheriff of Cook County, Illinois and rejecting much the same theories that the State asserts here: “[A] public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment.” ... The State cannot prosecute a publisher for publishing speech with absolutely no showing that the speech was unlawful, much less any allegation that defendants ever even saw the specific ads that are the basis for its charges. As the Supreme Court has long recognized, states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality, as any other rule would severely chill speech.

More specifically, Section 230 precludes the charges the State seeks to assert. As you know, Section 230 bars state-law claims against websites and other interactive computer services based on the publication of third-party content. A website cannot be held liable for publishing content submitted by users or for failing to block or remove such content, notwithstanding any allegations that it knew or should have known the content concerned unlawful conduct. Section 230 expressly preempts all inconsistent civil and criminal state laws. Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet.

Indeed, in July 2013, you and other state attorneys general signed a letter to various members of Congress urging that Section 230 be amended to exempt state criminal laws from CDA immunity so that you could pursue Backpage.com. See July 23, 2013 letter from National Association of Attorneys General.... It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring.

Accordingly, the State should dismiss the complaint and all charges against Messrs. Ferrer, Lacey and Larkin. We write now to urge that this happen immediately.

Finally, Michael Lacey and Jim Larkin released a statement about this mess, in which they directly suggest that this whole thing was about Harris trying to seal her election to the Senate, and highlighting how infamous Sheriff Joe Arpaio tried to arrest them a decade ago, and they ended up winning $4 million for civil rights violations. But, they note, Harris probably doesn't care, because she got the headlines and the press coverage and the TV cameras covering them doing the perp walk in orange jumpsuits.

Of course, knowing the law was of modest comfort as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it. We never set out when we published our first newspaper over 40 years ago to become the first American journalists to claim the rueful distinction of having been jailed both for editorials we wrote and advertising we published.

In 2007 we were arrested in Phoenix by agents of Sheriff Joe Arpaio for having published a story in the Phoenix New Times criticizing Arpaio for misusing a Grand Jury to harass New Times and its readers. We sued Arpaio in federal court under the Civil Rights Act and settled the case against the Sheriff and his handpicked Special Prosecutor for nearly $4 million.

[....]

Make no mistake; Kamala Harris has won all that she was looking to win when she had us arrested. Like Sherriff Arpaio, she issued her sanctimonious public statement, controlled her media cycle and got her “perp walk” on the evening news. Arpaio didn’t pay a dime of the civil damages we won against him. The taxpayers of Maricopa County did. And if the polls are any indication, Harris will be warmly ensconced in the United States Senate by the time her blatant violations of the First Amendment and federal law are finally adjudicated. She won’t pay. The taxpayers of California will.

And, as Kamala Harris knows, it probably won’t even make the evening news.

Indeed. This kind of bullshit seems like a massive abuse of power by Kamala Harris for the sake of grandstanding for her election campaign. She's yelled about Backpage for years, despite acknowledging she has no legal authority to go after them. And then, just a month before the election on her big campaign to become Senator, she magically decides to arrest them on charges she herself knows can't stick? That's a really fucked up abuse of power, stomping on the civil rights and Constitutional rights of these guys, and knowing damn well that once the case is lost, it's the taxpayers of California who will have to pay the bill. What shameful behavior by an elected official.

Filed Under: california, carl ferrer, cda 230, first amendment, free speech, grandstanding, intermediary liability, james larkin, kamala harris, ken paxton, michael lacey, pimping, prostitution, section 230
Companies: backpage.com