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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Politicians Who Said SESTA Was Needed To Takedown Backpage Claim Victory Over Backpage Takedown... Without SESTA

from the say-what-now? dept

From the very beginning of SESTA and FOSTA, its backers kept insisting that the bill was necessary to takedown Backpage.com. Indeed, Senator Rob Portman, in announcing SESTA, entitled his press release "Senators Introduce Bipartisan Legislation to Hold Backpage Accountable." And he's spent the past six months pointing to Backpage as the reason we absolutely needed SESTA. At launch, his quote was the following:

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.

Except, as we pointed out multiple times, that's not at all what courts have said. What they've said is that CDA 230 immunizes the site from certain types of liability. But as two recent courts -- not to mention the DOJ shutting down Backpage on Friday -- have made clear, nothing in CDA 230 immunizes Backpage from illegal activity that it directly engaged in.

So you'd think that maybe, just maybe, Senator Portman would recognize that SESTA was a giant unnecessary boondoggle that puts a ton of people and speech at risk. But, nope. Instead, he's released a statement praising the action and pretending that SESTA will "hold online sex traffickers accountable."

“I’m pleased that Congress has taken additional steps by passing my SESTA legislation to let sex trafficking victims seek justice and allow state and local law enforcement to swiftly prosecute websites that violate federal sex trafficking laws. This bipartisan measure will make it easier to hold online sex traffickers accountable, and I look forward to seeing President Trump sign this bill into law next week.”

Except not a single thing in SESTA holds online sex traffickers accountable. Indeed, it does the exact opposite of that, in that it makes it that much more difficult for law enforcement to track down actual sex traffickers. Prior to SESTA, websites (including Backpage) frequently worked with law enforcement to help them track down those using their platforms for illegal activity. Under SESTA, no site will be willing to assist law enforcement in such a manner, because doing so will provide evidence of "knowledge" and thus, potentially, criminal liability. This sweeps the problem of sex trafficking under the rug, which might make Senator Portman feel better, but does nothing to tackle the actual problem, and makes it that much more difficult to find and prosecute actual traffickers, let alone find and rescue victims held against their will.

Still, at least Senator Portman acknowledges that SESTA/FOSTA has not been signed into law yet. That basic fact apparently escaped Representative Mimi Walters, who provided the amendment that attached SESTA to FOSTA in the House. She actually took to Twitter to claim that Backpage was shut down because of her amendment:

That's pretty incredible, considering her bill hasn't been signed into law yet. You would think that a Representative would know that her own bill wasn't a law yet, wouldn't you? Or does Congress not work that way? Anyway, SESTA/FOSTA is not the law yet, and it clearly wasn't used to take down Backpage. And, of course, what was Rep. Walters' reason for pushing SESTA in the first place? The need to take down Backpage. So, not only is she not admitting that her law (which she said was necessary) was not, in fact, necessary, she's now living in a fantasy world where her law must have helped, despite it not yet being a law.

Can we elect better people to Congress please?

Then we have Senator John McCain. His wife has been at the forefront of the anti-Backpage campaign for many years. Indeed, many people I spoke to on Capitol Hill said that it was John and Cindy McCain's support for SESTA that made the bill viable in the first place. So it's no surprise that Cindy McCain was quick to tell the media how good the seizure is, calling it a "good day." And then the Senator put out the following statement celebrating the takedown, but oddly insisting it proves why SESTA was needed.

The seizure of the malicious sex marketplace Backpage.com marks an important step forward in the fight against human trafficking. This builds on the historic effort in Congress to reform the law that for too long has protected websites like Backpage from being held liable for enabling the sale of young women and children. Today’s action sends a strong message to Backpage and any other company facilitating online sex trafficking that they will be held accountable for these horrific crimes.

But, considering that Backpage was taken down prior to SESTA becoming law, how can McCain honestly claim that the law protected Backpage from being held liable? It did not. It only protected them from liability for actions of third parties. It has never protected the site from liability for its own actions. And the takedown on Friday proved that. So it's quite bizarre for McCain to pretend otherwise.

Either way, all of this is yet more evidence that SESTA was never truly about going after Backpage. That was all just a convenient excuse to gut Section 230 of the CDA and pave the way for changing some of the fundamental open parts of the internet, closing them off and putting up more and more gatekeepers. That those who supported SESTA and insisted it was necessary to take down Backpage are now pretending otherwise just underlines that fact.

Filed Under: cda 230, cindy mccain, doj, fosta, intermediary liability, john mccain, mimi walters, rob portman, sesta
Companies: backpage

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

House Prepared To Rush Vote On Terrible Frankenstein SESTA, Which Will Harm Trafficking Victims & The Internet

from the big-massive-mistake dept

Things had been mostly quiet on the SESTA/FOSTA front for the past few weeks, but apparently that's about to change, as the House leadership has agreed to a plan to rush the bill to a full floor vote next week, by creating a terrible Frankenstein of a bill that solves none of the existing concerns people had -- but creates new ones. If you don't recall, there are competing bills in the House (FOSTA) and the Senate (SESTA) which purportedly both attempt to deal with the problem of human traffickers using internet services to enable illegal trafficking. Both bills have serious flaws in how they attack the problem -- with the potential to actually make the problem of trafficking worse while also screwing up how the internet works (especially for smaller internet services) at the same time.

Things had been at a standstill for the past couple months as the House pushed its approach with FOSTA, while the Senate stood by its approach with SESTA. SESTA works by changing Section 230 of the Communications Decency Act to create a huge hole saying that CDA 230 doesn't apply if a site "knowingly facilitates" a violation of sex trafficking laws. If you don't have much experience with how similar laws work on the internet, this might sound reasonable, but in practice it's not. There's a similar "knowledge" standard in copyright law, and we've seen that abused repeatedly to censor all sorts of content over the years. You just need to allege that something violates the law, and a platform seeking to avoid potentially crippling liability is likely to remove that content. As I've noted, if the law passes, almost every internet company will be put at risk, including anyone from small blogs like ours to Wikipedia. The bill's backers seem to think this is a benefit rather than a problem -- which is quite incredible.

Until now, the House had been pushing an alternative proposal, called FOSTA, which tried to achieve similar results without punching a giant hole in CDA 230. Instead, it focused on creating a new crime for those with the intent to promote or facilitate prostitution. The intent standard is a much stronger one than the "knowledge" standard. There were still a couple of problems with FOSTA, though. Rather than focusing on sex trafficking, it covered all prostitution, which is too frequently lumped in with trafficking, and worried many in the community of folks supporting the rights of sex workers. But, a larger issue was that this would still open a huge hole for state and local prosecutors to go on massive fishing expeditions if any sort of prostitution related content ended up on any website. Even if they couldn't show intent, they could still bog down almost any internet platform with charges and investigations for quite some time. I mean, even we get people trying to spam our comments all the time with what appear to be prostitution ads. We catch most of them, but what if a few get through and some law enforcement agency wants to make life difficult for us? Under FOSTA, that's a real possibility. Such laws can be abused.

Still, the approaches were so different that things appeared to mostly be at a standstill. However, as noted above, suddenly things are moving and moving fast... and in the worst possible way. House Leadership apparently decided that rather than convince the Senate to move to a FOSTA approach, they would just bolt SESTA onto FOSTA via an amendment. And then, suddenly the House bill has all the problems of both bills without fixing either.

That amendment was released yesterday and is being introduced by Rep. Mimi Walters of California. Her district includes Irvine, which houses a whole bunch of tech companies who should be absolutely furious that their own representative just made things much more difficult for them. Take, for example, JobzMall, an Irvine-based company for connecting workers and employers. It's not difficult to think of how some might try to abuse that tool for prostitution or trafficking -- and suddenly the site may face a ton of legal fights, fishing expeditions and criminal threats because of this. That seems like a huge, huge problem.

And, importantly, it cannot be stressed enough that nothing in either of these bills does anything at all to actually stop sex trafficking. Supporters of the bill keep insisting it's necessary to stop sex trafficking and that those opposed to the bills are somehow in favor of sex trafficking. That's just wrong. Those opposed to the bill know what happens when you have mis-targeted bills that hold platforms responsible for what users do with them: and it's not that the "bad stuff" goes away. Instead, the bad stuff tends to continue, and lots of perfectly acceptable things get censored.

A recent paper by one of the world's foremost experts on "intermediary liability," Daphne Keller, explains why the bill won't work based on years and years of studying how these kinds of intermediary liability laws work in practice:

SESTA’s confusing language and poor policy choices, combined with platforms’ natural incentive to avoid legal risk, make its likely practical consequences all too clear. It will give platforms reason to err on the side of removing Internet users’ speech in response to any controversy – and in response to false or mistaken allegations, which are often levied against online speech. It will also make platforms that want to weed out bad user generated content think twice, since such efforts could increase their overall legal exposure.

And, again, NONE of that does anything to actually go after sex traffickers.

As Keller notes in her paper:

SESTA would fall short on both of intermediary liability law’s core goals: getting illegal content down from the Internet, and keeping legal speech up. It may not survive the inevitable First Amendment challenge if it becomes law. That’s a shame. Preventing online sex trafficking is an important goal, and one that any reasonable participant in the SESTA discussion shares. There is no perfect law for doing that, but there are laws that could do better than SESTA -- and with far less harm to ordinary Internet users. Twenty years of intermediary liability lawmaking, in the US and around the world, has provided valuable lessons that could guide Congress in creating a more viable law.

But instead of doing that, Congress is pushing through with something that doesn't even remotely attempt to fix the problems, but bolts together two totally separate problematic bills and washes its hands of the whole process. And, we won't even bother getting into the procedural insanity of this suddenly coming to the House floor for a vote early next week, despite the Judiciary Committee only voting for FOSTA, but not this SESTA-clone amendment.

This is a terrible idea, done in a terrible way and Congress seems to be doing it because it wants to "do something" about sex trafficking, without realizing what it's doing won't help stop sex trafficking, and could create massive harm for the wider internet. It's the perfectly dumb solution to the wrong problem. It's a very Congress-like approach to things, in which "doing something" is much more important than understanding the issues or doing the right thing.

And, once again, while some are incorrectly insisting that "the big tech companies" are against this, they are not. Their trade group, the Internet Association, came out in favor of SESTA's approach and Facebook in particular has gone all in supporting the bill. In talking to people familiar with Facebook's thinking on this, they recognize that they can withstand whatever bullshit comes out of this, but they know that smaller platforms cannot. And to Facebook, that is one of the benefits of SESTA. It weakens the competition and hurts smaller companies.

So, no, this is not "big tech" fighting SESTA. Basically every smaller internet platform I've spoken to is upset about this and trying to figure out how they're going to handle the inevitable mess this causes. But few are willing to speak out publicly, because they know that SESTA supporters will vocally attack them and falsely claim that they're "in favor of sex trafficking." Incredibly, most of those attacks will come on platforms that only exist because of CDA 230's strong protections.

Filed Under: cda 230, congress, fosta, house, intermediary liability, mimi walters, prostitution, section 230, sesta, sex trafficking
Companies: facebook, internet association