State Department Report Repeats Talking Points From Group Who Wants To Ban All Porn

from the seems-odd dept

Last week the State Department released its United States Advisory Council on Human Trafficking Annual Report 2021, and it's... a weird document in so many ways. Anti-human trafficking policy making is one of those issues that just seems to attract some very, very bizarre people -- as you might have noticed from the world of Pizzagate and Q-Anon. Human trafficking is (1) a very real problem, (2) a very serious problem, (3) just generally horrific for all the reasons you know, but (4) happens way less than most people think (especially given how much people focus on it). Obviously, continued efforts to prevent all human trafficking are important, and so I can understand why the State Department set up this advisory council. However, they seemed to staff it with a bunch of folks who have a very clear incentive to play up the issue as much bigger and more threatening than it really is.

And perhaps that explains the report's incredibly bizarre, incorrect, and just weird thoughts on the internet and Section 230 of the Communications Decency Act. First, they have a section that looks like it was directly written by The National Center on Sexual Exploitation (NCOSE), which while you might think that's a group with relevant expertise, is not. The group was founded in 1962 as "Morality in Media" and has spent decades trying to stop anything they deem to be smut. They only changed their name to NCOSE because it played better in the media to tie their anti-porn, anti-obscenity obsession to exploitation. They were also a major force behind FOSTA, which they always viewed as a step towards making all porn illegal.

One of the group's big lobbying campaigns is to convince states to pass laws declaring pornography to be a "public health issue." It's not, of course, but this group's entire existence doesn't make much sense if they can't convince more prudes that nekkid people are destroying society. Which, fine, if outlawing porn gets you off, do what you have to do, but I don't see why the State Department needs to support that kind of nonsense. Yet, right in this report we get:

We recommend HHS, DOJ, and DHS address the gaps and issues relating to the intersection between pornography, human trafficking, and child sexual exploitation.

As of November 2020, 16 U.S. states have passed resolutions recognizing pornography as a public health issue. It is time that the federal government also take deliberate action to acknowledge the direct links between pornography and human trafficking and address it as a threat to society....

They also recommend that HHS "allocate resources to fund research on the public health harms of pornography." They also cite the number of reports to NCMEC of suspected child sexual exploitation as proof that there's a real problem -- leaving out that (1) reports are not actual evidence of actual exploitation, (2) that social media has gotten better about reporting to NCMEC, and (3) that nuttiness like Q-Anon has resulted in tons of obviously bogus reports. But, no, they insist that such reports are proof of "a pervasive problem."

And then there's this:

In addition, the 94 United States Attorneys’ Offices are mandated to enforce federal obscenity laws. FBI agents, postal inspectors, and customs officers are responsible for investigating violations of federal obscenity laws. Pornography is the marketing department for sex trafficking. It has been shown to influence sex buying behaviors and much of it is produced by force, fraud, and coercion.[46] A robust enforcement of federal obscenity laws will therefore reduce the demand driving sex trafficking and protect those that are being victimized in the production of pornography. Therefore, we call upon federal law enforcement agencies to investigate and DOJ to prosecute federal obscenity laws actively, aggressively, and to the fullest extent of the law...

The claim that porn is "the marketing department for sex trafficking" seemed weird. It would be extreme already in just an NCOSE press release. It seems wholly irresponsible to put it into a State Dept. document. Meanwhile, I was wondering what the footnote was as evidence for this statement... and it's citing a Jezebel article from 2018 about two porn actors (understandably!) complaining about abuse, violence, and boundary violations on set. That's absolutely awful, but says nothing at all about how widespread this is and what any of that has to do with trafficking.

Then, the report suggests that Congress needs to update Section 230. Now, some of you might recall that we already did this. Congress -- at NCOSE's urging -- passed FOSTA specifically to try to carve out sex trafficking activity from Section 230 protections. And so far, what it has done is made it significantly more difficult to find and capture actual sex traffickers while also putting the lives of sex workers at risk -- often leading them to take risks that made it easier for traffickers to take advantage of them.

All in all, the evidence has shown that FOSTA has done the exact opposite of what was promised and has actually make sex trafficking worse.

But this advisory ignores all that and says we just need to take an even bigger sledge hammer to Section 230:

Sex trafficking of children and adults has proliferated online in part because Section 230 of the Communications Decency Act of 1996 (CDA) has been interpreted by federal and state courts to: 1) prohibit sex trafficking victims from suing websites that advertise them as being for sale; and 2) prevent states from enforcing criminal laws against websites that carry ads for sex trafficking. The technology industry has effectively used Section 230 to avoid responsibility for and profit from illegal activities that continue unabated on their platforms.* Despite the passage of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 tech-savvy internet traffickers have already leapt ahead using various ploys including utilizing foreign-based corporations and servers, which operate outside the reach of U.S. law, to advertise, exploit, and traffic American children on American soil.

Federal enforcement alone has proven insufficient in combating the growth of online commercial sexual exploitation of children. State, territorial, tribal, and local law enforcement must have the necessary digital forensics tools and clear authority to investigate and prosecute those who profit from these crimes. Additionally, removing civil immunity for companies that are complicit in child sexual exploitation on their platforms will create a necessary incentive for the technology industry to become proactive in protecting the most vulnerable in our society.

Therefore, we recommend Congress amend Section 230 of the CDA to empower victims and their attorneys, and states, territories, tribes, and localities to use all applicable criminal and civil laws to effectively combat human trafficking, including the commercial sexual exploitation of children online.

Except that as it stands right now, Section 230 already allows most of this. It has no impact on federal criminal law, and since the passing of FOSTA does allow for both civil and state criminal lawsuits. And so far, those have been a disaster. Ambulance chasing lawyers going after Mailchimp for cash, because some company that wanted to become the next Backpage signed up to use Mailchimp to send out emails.

All of the "sources" in the 3 paragraphs above... point to NCOSE's site, which again, is not a trustworthy or honest party in all of this.

I'm used to seeing this kind of nonsense from NCOSE all the time, but why is the State Department allowing its name and credibility to be used to launder this nonsense as if it's legit?

Filed Under: 1st amendment, human trafficking, obscenity, porn, section 230, sex trafficking, state department, trafficking

Prudish Mastercard About To Make Life Difficult For Tons Of Websites

from the content-moderation-at-the-financial-layer dept

For all the attention that OnlyFans got for its shortlived plan to ban sexually explicit content in response to "pressures" from financial partners, as we've discussed, it was hardly the only website to face such moderation pressures from financial intermediaries. You can easily find articles from years back highlighting how payment processors were getting deeply involved in forcing website to moderate content.

And the OnlyFans situation wasn't entirely out of nowhere either. Back in April we noted that Mastercard had announced its new rules for streaming sites, and other sites, such as Patreon, have already adjusted their policies to comply with Mastercard's somewhat prudish values.

However, as those new rules that were announced months ago are set to become official in a few days, the practical realities of what Mastercard requires are becoming clear, and it's a total mess. Websites have received "compliance packages" in which they have to set up a page to allow reports for potential abuse. In theory, this sounds reasonable -- if there really is dangerous or illegal activity happening on a site, making it easier for people to report it makes sense. But some of it is highly questionable:

The form features a checklist of clickable boxes that anyone visiting an adult site is encouraged to use to report what they believe to be “exposed personally identifiable information,” “impersonation,” “underage material,” “copyright/trademark infringement” and “spam" as well as “prostitution or trafficking,” “weapons,” “drugs” and “other.”

First off "prostitution" and "trafficking" are different things, and lumping them together is already somewhat problematic. As a webmaster explained to Xbiz, this seems to have come from "Morality in Media" -- a horrifically repressed group of prudish busybodies who renamed themselves the "National Center on Sexual Exploitation" (NCOSE) and who were a major force behind FOSTA, which they admitted was part of their plan to outlaw all pornography. Last year, we noted that the group had put a major focus on demanding credit card companies stop working with porn sites, and some of Mastercard's new rules are clearly designed to appease them.

“Groups like NCOSE are convinced that all adult content falls under ‘prostitution or trafficking,’” the webmaster noted. “This form is just encouraging them to bury us in paperwork that won’t accomplish anything.”

Not only that, but every such report is cc'd back to Mastercard, which seems bizarrely stupid. Of course, as we've seen with things like copyright takedowns, having the mechanism means that it will get abused. A lot. And then campaigners like NCOSE will try to use the number of "reports" (not proof of anything actually illegal) as proof of "illegal activity" and push for new regulations.

Also, the rules requiring the form to be linked from every page is likely to have much wider consequences as well:

The webmaster also noted that the form essentially forces all adult sites to add the words “underage material,” “prostitution or trafficking,” “weapons” and “drugs” to their metadata, which then puts them at risk of AI shadowbans or even state surveillance.

“I don’t want that metadata associated with my brands,” they protested.

As we've said in other situations, one of the big questions and concerns that comes about when infrastructure layer partners get into the content moderation game is that it matters how much competition there is the market. If websites could simply drop Mastercard maybe it wouldn't be such a big deal. But, unfortunately, right now, it's hard for a site that wants to accept payments to not work with Mastercard. Both it and Visa (and to a lesser extent, American Express) are basically required if you want to accept payments for anything. Perhaps that will change over time (and things like this might help drive that change). But in the meantime, it certainly appears that a disingenuous and dishonest campaign by a prudish group that hates pornography has convinced Mastercard to make life difficult on lots of websites.

Filed Under: adult content, content moderation, infrastructure, infrastructure moderation, payment processors, pornography, sex trafficking
Companies: mastercard

Backpage Founders Trial Finally Begins

from the where-will-it-end? dept

It's been over three years since Backpage.com was seized (the week before FOSTA was signed into law -- which is notable since every conversation about the need for FOSTA claimed it was because existing laws were useless to stop Backpage). However, in the intervening years we've seen that the loss of Backpage, rather than "protecting" women, seems to have put women at much greater risk. The recent Government Accountability Office (GAO) report highlighted how the loss of Backpage, combined with FOSTA, has made it difficult for law enforcement to track down actual sex traffickers.

As more of the backstory behind the war on Backpage came out, the more ridiculous it looked. The company actually was incredibly helpful in working with law enforcement to track down and stop sex trafficking. The problem came when law enforcement wanted to stop more than actual sex trafficking, and started going after consensual sex work. Backpage pushed back, suggesting that was too far, and that's when the government turned Backpage into being a villain.

With the trial beginning, the Daily Beast has as pretty comprehensive and pretty fair article detailing the whole thing, including raising serious questions about what exactly Backpage's founders actually did to deserve this criminal trial.

According to documents published by Reason, federal prosecutors in the Western District of Washington reviewed more than 100,000 documents and interviewed more than a dozen witnesses in 2012 in an attempt to bring a case against Backpage, but failed to find a smoking gun. In fact, according to a memo written by two assistant U.S. attorneys at the time, local FBI agents found the company “remarkably responsive to law enforcement requests” and said the site “often takes proactive steps to assist in investigations.”

“At the outset of this investigation, it was anticipated that we would find evidence of candid discussions among [Backpage] principals about the use of the site for juvenile prostitution which could be used as admissions of criminal conduct," the attorneys wrote in a 2013 update to the memo. "It was also anticipated that we would find numerous instances where Backpage learned that a site user was a juvenile prostitute and Backpage callously continued to post advertisements for her. To date, the investigation has revealed neither.”

The article also notes how damaging FOSTA and (relatedly) the loss of Backpage has been:

In the weeks after its passage, FOSTA/SESTA felled not only Backpage, but other adult advertising sites like Massage Republic and Cityvibe, and even the Craigslist personal ads section. The impact was tangible: A survey from the sex worker advocacy group Hacking/Hustling found 33.8 percent of respondents reported an increase in violence from clients after the law was signed, and 72.5 percent reported they were facing increased financial insecurity. Advocates related stories of sex workers who were thrust into the arms of pimps in order to find work, or back into abusive relationships for want of somewhere to stay.

The article does note that the founders on trial, Jim Larkin and Michael Lacey, could be highlighting the harm to sex workers that came from taking down Backpage, but instead they've focused specifically on the "free speech" arguments.

Whether Larkin and Lacey want this status is less clear. Their pre-trial statement paints them as free-speech warriors valiantly defending “offensive” and unpopular speech.” Conspicuously missing from the statement, as journalist Melissa Gira Grant pointed out on Twitter, are the words “prostitution” or “sex work;” there is only a glancing reference to “adult advertising.”

Kaytlin Bailey, a former sex worker and host of The Oldest Profession Podcast, says the longtime newspapermen are now telling the wrong story.

“I were in their shoes, the story I would be telling is the story of the survival of their users,” she said, referring to the sex workers who lost their source of income when the site was taken offline.

“They think of themselves as free speech warriors, and I think sex workers think of themselves as in a fight for survival.”

The article also quotes Prof. Alexandra Yelderman, who has been one of the top scholars on the dangers of things like FOSTA and removing sites that facilitated speech, highlighting just how questionable this lawsuit actually is:

Alexandra Yelderman, a visiting assistant professor at the University of Notre Dame Law School, argues that the trial still holds serious significance—more so than the criminal prosecutions of RentBoy, myRedBook, and other adult websites. While those sites only advertised sex work, Yelderman said, Backpage advertised other services, such as housing, cars, and temporary jobs. And everyone should be concerned that the government would jeopardize that kind of speech to get at the other stuff.

“What the Backpage takedown and prosecution is an example of is the government's willingness to throw all sorts of speech under the bus here, in order to get at speech that—according to the indictment—facilities the crime of prostitution,” she said.

“This is not a trafficking prosecution,” she added. “This is a case where allegations that [the founders] facilitated prostitution were an impetus for the government to take aim at this entire swath of speech.”

Whether you liked Backpage or not -- and it's fair to criticize some of the company's business practices -- this trial is incredibly important. And given the nature of the subject matter (not to mention some serious concerns about the judge's conflicts--she's married to the state Attorney General who campaigned against the website), there's a decent chance of a ruling here that will set a terrible precedent both for free speech online and for sex workers.

Filed Under: 1st amendment, fosta, free speech, james larkin, michael lacey, section 230, sex trafficking, sex work, user generated content
Companies: backpage

Enough About FOSTA's 'Unintended Consequences'; They Were Always Intended

from the it's-what-they-wanted dept

It feels inevitable that if you’re talking about FOSTA/SESTA (the federal law passed in 2018 that amended section 230), someone, at some point, will mention that it was aimed at combatting sex trafficking that had unintended impacts on folks doing consensual sex work.

Just to provide a few examples, there’s a law review article about FOSTA called “good intentions and unintended consequences.” Or you could look at the 2018 OC Register article called “The Unintended Consequences of a Well Meaning Anti-Sex-Trafficking Law” (complete with cliche sexy legs 🙄). Even Elizabeth Warren, in the announcement for the SAFE SEX Workers Study Act, said “As lawmakers, we are responsible for examining unintended consequences of all legislation, and that includes any impact SESTA-FOSTA may have had on the ability of sex workers to protect themselves from physical or financial abuse.”

But as @cybwhoregology has been pointing out, the narrative of “unintended consequences” is utter nonsense. Negative effects on sex workers (and there were many) were not “unintended.” The text of the law explicitly criminalizes the promotion of prostitution and it’s hard to argue that an interpretation of the law that was clear from its text is unintended. Sex workers and trafficking survivors were very clear about the likely outcome of FOSTA/SESTA prior to its passage. Finally, this narrative is contradicted by what the organizations that supported FOSTA say about their own goals.

1. FOSTA explicitly criminalizes the promotion/facilitation of prostitution that does not involve trafficking.

So the first conclusion I reach when I read these takes is that people have not even skimmed the text of the bill. I don’t really blame them - it’s pretty incomprehensible. But go take a look - the final text is here. I’ll wait.

Okay, do you see why it’s ahistorical to claim that negative effects on sex workers were unexpected? Just in case not, I’ll break it down for you.

Look at 18 U.S.C. §2421A - the bottom of the first page. This is a federal criminal provision, created by FOSTA, prohibiting promotion or facilitation of prostitution. Note that this does not require that any sex trafficking took place. The text clearly says that it is a federal crime to run a computer service with the intent to promote or facilitate prostitution of another person.¹ You can have an aggravated violation under 2421A(b) if the website promotes or facilities the prostitution of 5 or more persons, OR acts in reckless disregard of the fact that such conduct contributed to sex trafficking.

I am going to repeat that point again. You can have a criminal charge under FOSTA, including an aggravated criminal charge, without any trafficking taking place at all. Just promotion or facilitation of prostitution (aka consensual sex work).

This concern is not merely hypothetical. The one criminal prosecution that has happened (US v. Martono, about CityXGuide) under 2421A just resulted in a plea deal where the defendant pled guilty to promotion of prostitution and conspiracy to facilitate prostitution. Although the Department of Justice talked about trafficking in their press release, they never ultimately charged Martono with trafficking, likely because they could not prove that he had the level of knowledge required.²

As if that wasn’t enough, FOSTA also changed Section 230 (the federal law that previously had limited internet platform’s liability) to also allow for state criminal charges against platforms based solely on conduct related to sex work, so long as the conduct underlying the charge is based on 2421A.³

You cannot pass a bill that creates additional federal criminal charges and removes immunity from state criminal charges for the promotion/facilitation of prostitution and then claim that negative effects on sex work were an accident! If the people who passed this bill, and those that advocated for it, didn’t want to harm sex workers, they shouldn’t have passed a bill that created additional crimes for the promotion of prostitution.⁴

2. Sex workers were incredibly clear about the likely impact of SESTA/FOSTA before and at the time of its passage.

The second reason that the narrative that the negative outcomes of FOSTA on sex workers was an unintended consequence is nonsense is because it requires erasing (or ignoring) the people who pointed out contemporaneously that the bills were going to harm sex workers.

If you want receipts, there is the Survivors Against SESTA page from 2018 that encouraged folks to call their Senators to explain how FOSTA/SESTA would harm sex workers. Survivors Against SESTA also produced a one-pager on why sex workers need online spaces. Oh, and here’s their one-pager on how FOSTA and SESTA would harm workers. New Orleans Harm Reduction has a page from 2018 where sex workers outlined materials as part of the social media campaign against FOSTA.

Media even covered these concerns! Here’s a contemporaneous article from Melissa Gira Grant quoting sex workers’ rights experts about the negative impact of either FOSTA or SESTA on sex workers. And there’s a FastCompany article with a tweet from Kate D’Adamo, who said “I was a #sexworker organizer for years in NYC. #FOSTA would undermine almost every single thing I would tell people for how to stay alive. ALL screening, ALL peer references, ALL bad date lists I could send. #SurvivorsAgainstFOSTA.”

It’s also worth checking out the #LetUsSurvive or #SurvivorsAgainstSESTA hashtag, where you can still find many of the posts that people made prior to FOSTA’s passage. (Although the historical record is obviously incomplete because of account deletions, caused in part by platforms’ fear of liability under FOSTA. I believe Alanis Morissette would call that ironic.)

FOSTA and SESTA were two bills that were advocated for by different organizations that were combined into one, giant, bad, law. If SESTA alone was passed, it would have been plausible to argue that anti-sex work effects were collateral damage to efforts to prevent sex trafficking, if not for the accurate predictions about consequences of the bill. In short, sex workers expected these consequences, and said quite clearly that these were the likely outcomes. To quote Bardot Smith, “WHORES TOLD YOU.”

3. Many of the people who advocated for the bill saw increasing the difficulty of engaging in consensual sex work as a feature of the bill, not a bug.

Content warning for language that ignores sex worker agency - skip the next paragraph if that’s harmful to you.

It’s not just that calling the effects unintended erases sex workers’ advocacy and labor. It also ignores the fact that some people who oppose “sex trafficking” often do want to eliminate all sex work. For example, one supporter of the bills was CATW (the Coalition Against Trafficking in Women). CATW explicitly seeks to end what they call “sexual exploitation,” which it defines as possible “only if no woman or girl is trafficked, exploited or prostituted in the sex trade.”⁵ So from the angle of organizations like CATW, as well as the National Center on Sexual Exploitation (formerly known as Morality in Media), and others, the harm to sex workers (who they often do not believe are legitimate stakeholders) is, in fact, a feature, not a bug. If you’re looking for a useful summary of how this dynamic plays out in reporting, I suggest this piece from WHYY Philadelphia. In it, someone who works for CATW and who is speaking from their experience being trafficked makes the claim that “Sex is not work, and work is not sex. And although I recognize that there is a population of people who self-identify as sex workers, it’s really a term that’s used to mask the inherent harms that come with prostitution.” That’s not a statement that is consistent with the idea that harm to sex workers is an unintended result of anti-trafficking efforts.

Of course, this debate goes back far further than section 230 -- it’s a rehashing of a set of conversations that took place during the white feminist sex wars of the 1970s. Far more eloquent people than I have written about how it is true that the binary between sex trafficking and sex work does not do a good job of capturing folks’ experiences, but that’s because it is a product of whorephobia. Whorephobia comes down to the idea that there is something uniquely damaging about work that involves sex, rather than the damage coming from society’s distaste for sex work and the stigma that comes along with that and criminalization.⁶ (Just to be clear -- there is not. Many of the harms that people articulate as coming from this kind of work come from criminalization itself, as well as the lack of affirming health and social services.) Fundamentally, it is impossible to truly respect and listen to sex workers and believe that the goal should be the elimination of sex work, unless you also believe that all work should be eliminated.⁷

To pull us back to FOSTA, I suspect most mainstream technology policy organizations (and reporters, and pundits/scholars) do not want to comment on or engage with the fact that some (but not, by any means, all) anti-sex trafficking organizations believe that all sex work is inherently exploitive or leads to sex trafficking. Thus, the argumentative move seems to be to suggest that the intentions of the people who promoted FOSTA/SESTA were good and the harm to sex workers was unexpected. I understand this from a realpolitik perspective -- the politics of the anti-trafficking space can seem complicated, and no one wants to appear to be pro-trafficking. And admitting you’ve caused harm is hard! However, again, pretending that prostitution was “accidentally included” or that FOSTA was a bill that was only aimed at ending what the law defines as sex trafficking is at best, revisionism.

Conclusion:

Most people who talk about FOSTA’s unintended consequences are not bad people, nor are they trying to erase or ignore sex workers. But the narrative that sex workers were “collateral damage” of an anti-trafficking bill is ahistorical and compounds the harm. Please, please, stop saying that the effects were unintended.

Did you find this post useful? Please throw some money at Hacking//Hustling, who has been working to cultivate a better understanding of the impacts of FOSTA. You can donate here.

Thank you to Danielle Blunt and Riana Pfefferkorn, who provided very helpful feedback on this post! All mistakes are my own.

Notes

Originally posted to Kendra's personal blog.

Filed Under: consequences, fosta, section 230, sesta, sex trafficking, sex work

Texas Supreme Court Completely Confuses Section 230, Makes A Total Mess Of FOSTA

from the gotta-love-those-state-courts dept

So, this is... not great. Last year we wrote about a ridiculously bad ruling in Texas regarding a string of what certainly appear to be vexatious lawsuits that try to blame Facebook for sex trafficking. Texas's Supreme Court has now made its ruling on the matter and... it completely upends the limits of FOSTA by literally ignoring what the law explicitly says, and insisting it must mean something different. It is one of the strangest rulings I've ever seen.

The key issue is that Facebook sought a writ of mandamus, basically asking the Court to say "these lawsuits can't go forward because of Section 230." But that apparently requires the Justices on Texas's Supreme Court to read Section 230, as amended under FOSTA, and understand what it actually says. However, Justice Jimmy Blacklock apparently couldn't be bothered to do that. You can kind of get a sense of where this is going from the opening:

We do not understand section 230 to “create a lawless no-man’s-land on the Internet” in which states are powerless to impose liability on websites that knowingly or intentionally participate in the evil of online human trafficking. Fair Hous. Council v. Roommates.Com, LLC, 521 F.3d 1157, 1164 (9th Cir. 2008) (en banc). Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking. Congress recently amended section 230 to indicate that civil liability may be imposed on websites that violate state and federal human-trafficking laws. See Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), Pub. L. No. 115-164, 132 Stat. 1253 (2018). Section 230, as amended, does not withdraw from the states the authority to protect their citizens from internet companies whose own actions—as opposed to those of their users—amount to knowing or intentional participation in human trafficking.

I mean, it's true that Section 230 does not "create a lawless no-man's-land on the Internet." What it does is say that the law applies to the party actually breaking the law and not to the tool or service that they used to do so. But the end of the paragraph is already a bit confused about how FOSTA works, so that's a bad omen. Things are going to get silly in this ruling.

From there, Blacklock spews some nonsense about how Section 230 is not clear -- which is simply not true at all. Indeed, right after saying it's not clear, he admits that basically all the courts have decided to read Section 230 and promises that his court won't go against those rulings -- even though that's exactly what he's about to do. There's a long digression about Justice Thomas' random musings on Section 230 -- which go against what every other court has decided -- and then admits that (again) this court shouldn't go against what all the courts have actually said about Section 230, which disagree with Thomas' random unbriefed musings.

The ruling does reject some of the outlandish arguments from the plaintiff, trying to say that you can get around Section 230 with negligence and product liability claims. It correctly notes that those are in fact barred by Section 230.

It's then on page 23 that the ruling completely runs off the rails. At issue: does Section 230 pre-empt Texas' state laws regarding sex trafficking in civil cases like these. The obvious and only answer is "yes, it absolutely does." This isn't even remotely up for debate because this very issue was discussed and debated in the run-up to FOSTA. Some of the original FOSTA proposals included opening up Section 230 so that state sex trafficking laws would not be pre-empted by 230 -- but as many people pointed out, that would open up quite a mess, as such laws are drastically different in every state, and would create a massive loophole for mischief in Section 230. So, instead, Congress clearly and explicitly limited FOSTA to say that Section 230 would no longer apply to federal sex trafficking laws in civil cases. It's pretty clear from the text that was added to Section 230 in FOSTA:

(5)No effect on sex trafficking law

Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—

(A)any claim in a civil action brought under section 1595 of title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title;

You see how it specifically names 18 USC 1591? That's because that's the federal sex trafficking law. And, again, this was added explicitly after debate in Congress that included some proposals that would apply FOSTA broadly to all state sex trafficking laws -- and that idea was rejected by Congress -- and the law was written to clearly say it only referred to federal sex trafficking law.

But Justice Blacklock ignores all of that, and rather than looking at what the law actually says, notes that because the Plaintiff reads the law wrong, there's an open question here.

Both parties argue that FOSTA’s changes to section 230 support their positions. As Facebook understands FOSTA, the 2018 amendments carved out particular causes of action from the scope of what section 230 otherwise covers. These carved-out claims include a civil action under 18 U.S.C § 1595 and certain state criminal prosecutions but not civil human-trafficking claims under state statutes. Although a state-law claim under section 98.002 looks much like the federal cause of action created by section 1595, the similarity does not transform Plaintiffs’ statutory claims into suits “brought under” section 1595. In Facebook’s view, Congress’s “meticulous . . . enumeration of exemptions . . . confirms that courts are not authorized to create additional exemptions.” Law v. Siegel, 571 U.S. 415, 424 (2014).

Plaintiffs disagree. They concede that FOSTA does not explicitly except civil humantrafficking claims under state statutes from section 230’s reach. But FOSTA’s silence in that regard does not answer whether such claims fell under section 230 to begin with. According to Plaintiffs, the effect of FOSTA was not, as Facebook assumes, to carve out discrete claims that would otherwise have been barred by section 230. Instead, FOSTA reflects Congress’s judgment that such claims were never barred by section 230 in the first place. Under this reading, FOSTA’s “exception” to section 230 immunity for federal section 1595 claims is not merely an exception. Instead, it is Congress’s announcement of a rule of construction for section 230(c), under which human-trafficking claims like those found in section 1595 were never covered by section 230. In Plaintiffs’ view, by indicating that Backpage was wrong and that section 230 should not be interpreted to bar federal civil statutory human-trafficking claims, Congress must also have been indicating that analogous state civil statutory human-trafficking claims likewise are not barred. After all, there is no conceivable difference between the two categories of claims with respect to whether they “treat” defendants as “speakers or publishers.”

But... that's literally not even remotely true. FOSTA was absolutely to carve out discrete claims that would have otherwise been barred by Section 230. That was what the entire debate was about. The Plaintiff's lawyer is making shit up, whole cloth.

And Justice Blacklock bought it. This is embarrassing.

For two reasons, we find Plaintiffs’ view of FOSTA’s impact more convincing. First, what Facebook calls FOSTA’s “exceptions” to section 230 are not introduced with statutory language denoting carve-outs (such as “notwithstanding” or “except that . . .”). Instead, Congress instructed that “[n]othing in [section 230] . . . shall be construed to impair” certain claims. The U.S. Supreme Court, in interpreting a materially identical proviso, declined to view it “as establishing an exception to a prohibition that would otherwise reach the conduct excepted.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 582 (1988). Rather, the language in question “ha[d] a different ring to it.” Id. A clause stating that the provision to which it applies “‘shall not be construed’ to forbid certain [activity],” was, in the Court’s view, better read as “a clarification of the meaning of [the provision] rather than an exception” to its general coverage. Id. at 586. The Court agreed with the Eleventh Circuit, which had also understood the “shall not be construed” clause as “explain[ing] how the [section] should be interpreted rather than creating an exception” to it. Fla. Gulf Coast Bldg. & Constr. Trades Council v. NLRB, 796 F.2d 1328, 1344 (11th Cir. 1986). Other courts have construed similar statutory language in the same way.

Following this line of reasoning, we do not read FOSTA’s instruction that “[n]othing in [section 230] . . . shall be construed to impair or limit any . . . civil action brought under [18 U.S.C §] 1595” to merely except section 1595 claims from the scope of what section 230 would otherwise cover. Rather, the FOSTA proviso announces a rule of construction applicable to section 230. Congress’s mandate that section 230 not “be construed” to bar federal civil statutory human-trafficking claims necessarily dictates that section 230 must not be construed to bar materially indistinguishable state civil claims either. The elements of the two claims are very similar. If liability under federal section 1595 would not treat defendants as “speakers or publishers” within the meaning of section 230, it is hard to understand how liability under Texas’s section 98.002 could possibly do so.

As lawyer Ari Cohn notes, none of this makes any sense at all. The whole point of FOSTA was not a "rule of construction" to explain general ideas on what Section 230 would and would not apply to, but a very specific carveout for federal sex trafficking laws. It's in the freaking statute. They wouldn't name the law if that wasn't what they were specifically carving out.

Then, it gets worse. Justice Blacklock reads way more into the "sense of Congress" part of FOSTA than is reasonable.

Second, another textual indicator favors Plaintiffs’ understanding of FOSTA’s effects. The “Sense of Congress,” enacted as part of FOSTA’s text, was that “section 230 of the [CDA] was never intended to provide legal protection to . . . websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims.” Pub. L. No. 115-164, § 2. If section 230 was “never intended” to immunize defendants against claims brought pursuant to 18 U.S.C § 1595, it stands to reason that the provision also never afforded immunity from analogous state-law causes of action....

That is completely misreading what Congress was saying here. They were explicitly carving out federal sex trafficking laws from Section 230 because (they claim) that the original Section 230 went too far in carving out that law. And that law explicitly. Because they name that law. And, it's not that they didn't think about state sex trafficking laws. Again, they did so. There was vigorous debate on that very point. And, the next two lines in the law both mention state sex trafficking laws, and when they may be used in criminal prosecutions regarding sex trafficking against an internet service provider. In other words, Congress wasn't just giving some rambly "oh all sex trafficking laws are exempt from 230" kind of message. It explicitly says that federal sex trafficking law is exempt from 230 for civil suits, and some aspects of state laws can be exempt if they match federal law in criminal cases.

It's impossible to read that and say "oh Congress actually meant that state laws were always carved out from Section 230 civil cases." If that were true, then why would it explicitly carve them out for criminal cases in the very next line? It's mind-bogglingly ridiculous that this is how Justice Blacklock read the law.

As for the whole "sense of Congress" point, that's basically meaningless, and Facebook tried to argue that, but Justice Blacklock says that you can use it if there's ambiguity. But there's no ambiguity in what the law says. Facebook pointed to what the law says. The plaintiff made up some nonsense argument. You don't just throw up your hands and say "well, there are two different ideas here, so it's ambiguous." It's not.

Even more bizarre then, is the conclusion, in which Justice Blacklock says it's up to Congress to modernize the laws -- which he just totally reinterpreted on his own.

The internet today looks nothing like it did in 1996, when Congress enacted section 230. The Constitution, however, entrusts to Congress, not the courts, the responsibility to decide whether and how to modernize outdated statutes. Perhaps advances in technology now allow online platforms to more easily police their users’ posts, such that the costs of subjecting platforms like Facebook to heightened liability for failing to protect users from each other would be outweighed by the benefits of such a reform. On the other hand, perhaps subjecting online platforms to greater liability for their users’ injurious activity would reduce freedom of speech on the internet by encouraging platforms to censor “dangerous” content to avoid lawsuits. Judges are poorly equipped to make such judgments, and even were it otherwise, “[i]t is for Congress, not this Court, to amend the statute if it believes” it to be outdated.

Except, uh, Congress did update the law in 2018, and that's the part that's being debated here -- and they updated it explicitly to say that civil suits only are exempted for federal sex trafficking law, and Justice Blacklock ignores that and throws up his hands, insisting that Congress really meant that state laws were never covered by 230, which is just ahistorical nonsense.

Of course, the case is not done with yet, and Facebook might still win (it should) on the merits as the case moves forward, but this just cut a giant hole in 230, and lawyers like the one driving this case are likely going to rush into that hole to file a ton of frivolous and vexatious lawsuits against all sorts of websites, claiming they violated sex trafficking laws. In theory, Facebook could appeal this to the Supreme Court, but that seems incredibly risky these days.

The real irony, of course, is that the only reason FOSTA became law in the first place was because of Facebook's strong support of the law, and now look how that's turned out?

Filed Under: annie mcadams, civil laws, civil lawsuits, exemption, federal law, fosta, jimmy blacklock, section 230, sex trafficking, texas
Companies: facebook

As Everyone Rushes To Change Section 230, New GAO Report Points Out That FOSTA Hasn't Lived Up To Any Of Its Promises

from the garbage-in,-garbage-out dept

As you may have heard, tons of politicians are rushing to introduce new and different bills to undermine or repeal Section 230 of the Communications Decency Act -- a bill that is rightly credited for enabling a more open internet for freedom of speech. As you may recall, in early 2018 we had the first actual reform to Section 230 in decades -- FOSTA. It was signed into law on April 11th, with tons of politicians insisting it was critical to protecting people online. We had so many quotes from politicians (and a whole campaign from Hollywood stars like Amy Schumer) claiming (falsely) that without FOSTA, children could be "bought and sold" online.

One thing the bill did include (in Section 8) was a requirement that 3 years after the bill passed, the GAO should put out a report on how effective it has been. It's a few months late (the GAO does excellent work, but tends to be overworked and under-resourced) but on Monday the GAO finally released its study on the effectiveness of FOSTA. And... it basically says that all of the critics claims were exactly right.

Before FOSTA became law, co-author of Section 230, Senator Ron Wyden warned:

I fear that the legislation before the Senate will be another failure. I fear it will do more to take down ads than take down traffickers. I fear it will send the bad guys beyond the grasp of law enforcement to the shadowy corners of the dark web, where everyday search engines don’t go, but where criminals find safe haven for their monstrous acts....

[....]

In my view, the legislation before the Senate will prove to be ineffective, it will have harmful unintended consequences, and it could be ruled unconstitutional.

[....]

But the bill before us today will not stop sex trafficking. It will not prevent young people from becoming victims.....

So, now that we're three years in, what has the GAO found? That, just as predicted, the law was not at all necessary, and has barely been used, and the very, very few times it's been used in court, it's been ineffective:

Criminal restitution has not been sought and civil damages have not been awarded under section 3 of FOSTA. In June 2020, DOJ brought one case under the criminal provision established by section 3 of FOSTA for aggravated violations involving the promotion of prostitution of five or more people or acting in reckless disregard of sex trafficking. As of March 2021, restitution had not been sought or awarded. According to DOJ officials, prosecutors have not brought more cases with charges under section 3 of FOSTA because the law is relatively new and prosecutors have had success using other criminal statutes. Finally, in November 2020 one individual sought civil damages under a number of constitutional and statutory provisions, including section 3 of FOSTA. However, in March 2021, the court dismissed the case without awarding damages after it had granted defendants' motions to dismiss.

So... why did we need it again? Why was it so urgent? Why were Senators, Members of Congress, Hollywood stars, and others practically shoving each other aside to say that we needed this yesterday? And now, it's barely been used?

The report also shows -- again as many of us predicted -- that post FOSTA, law enforcement has had more difficulty tracking down those engaged in sex trafficking. Not because there is less trafficking, but because they're harder for law enforcement to find or access the details:

The current landscape of the online commercial sex market heightens already-existing challenges law enforcement face in gathering tips and evidence. Specifically, gathering tips and evidence to investigate and prosecute those who control or use online platforms has become more difficult due to the relocation of platforms overseas; platforms’ use of complex payment systems; and the increased use of social media, dating, hookup, and messaging/communication platforms.

The relocation of platforms overseas makes it more difficult for law enforcement to gather tips and evidence. According to DOJ officials, successfully prosecuting those who control online platforms—whether their platforms are located domestically or abroad—requires gathering enough evidence to prove that they intended that their platforms be used to promote prostitution, and, in some cases, that they also acted in reckless disregard of the fact that their actions contributed to sex trafficking.

Of course, in the runup to passing FOSTA, everyone kept talking about Backpage -- that FOSTA was needed to takedown Backpage, the company that everyone insisted was terrible. Except... as everyone now knows, the DOJ took down Backpage without FOSTA. Perhaps, the real issue had nothing to do with the law itself, and plenty to do with the DOJ not doing much on this issue. Or, worse, the DOJ recognizing that maybe Backpage wasn't the evil bogeyman that politicians and the press were making it out to be.

After all, leaked government documents later showed that Backpage was actually working closely with law enforcement to track down traffickers. So, guess what the report has found now? Thanks to FOSTA and also to the takedown of Backpage, the FBI is now finding it really really difficult to actually track down traffickers:

According to a 2019 FBI document, the FBI’s ability to identify and locate sex trafficking victims and perpetrators was significantly decreased following the takedown of backpage.com. According to FBI officials, this is largely because law enforcement was familiar with backpage.com, and backpage.com was generally responsive to legal requests for information. In contrast, officials said, law enforcement may be less familiar with platforms located overseas. Further, obtaining evidence from entities overseas may be more cumbersome and time-intensive, as those who control such platforms may not voluntarily respond to legal process, and mutual legal assistance requests may take months, if not years, according to DOJ officials.

So... end result: the government is barely using FOSTA and it's now significantly more difficult to find sex traffickers.

And, of course, the report doesn't even touch on the fact that things FOSTA did do to harm sex workers, putting them more at risk. It also doesn't talk about how lots of legitimate sites, such as dating sites and Tumblr, started aggressively blocking content that was likely perfectly legal, out of fear that FOSTA would open them up to criminal liability.

So, here's the big question: as a ton of politicians are pushing for big massive changes to Section 230, will they listen to us this time when we warn them about the possible consequences of such changes? Or will they dismiss us and insist that we're lying like they did last time? And who will go ask the politicians and Hollywood stars who swore that FOSTA was so absolutely necessary, how they respond to the fact that it didn't work, isn't being used, has made it more difficult to stop actual trafficking and has put actual lives in danger? Because all of that seems kind of important.

Filed Under: fosta, gao, intermediary liability, law enforcement, section 230, sex trafficking

Salesforce Asks Appeals Court To Say It's Protected Under 230; After Its Own CEO Said We Should Get Rid Of 230

from the incredible dept

We were quite perplexed in late 2019 when Salesforce.com founder and CEO Marc Benioff (never one to shy away from expressing his opinions on anything at all) announced that Section 230 should be abolished. It seemed like an extremely poorly thought-out statement from a CEO who was wholly unfamiliar with the issues, but who has sort of relished tweaking the noses of the big consumer internet companies over the past few years (after spending the first decade or so of Software.com's existence tweaking the noses of enterprise software companies). As we wrote at the time, Benioff didn't seem to understand 230 at all, and seemed just angry at Facebook.

Of course, this is coming back to bite him hard. Just a few months later, lawyer Annie McAdams, who seems to have made it her life's mission to file blatantly silly attacks on Section 230 in court, sued Salesforce.com (and not for the first time!), claiming that because Backpage.com had used Salesforce as its CRM system, Salesforce was somehow magically liable for any sex trafficking that happened on the platform. In the complaint, McAdams cited Benioff's comments:

Salesforce will claim that no matter what role Salesforce played in the development and amplification of Backpage’s business model, they should be completely shielded and not have to answer any questions or be held accountable in any manner by asking the Court to dismiss the case at the initial stage.

The distortion and use of the Communications Decency Act as a sword by technology companies such as Salesforce is an outright distortion of the intent of Congress in regard to the development of the internet.

The Communications Decency Act (“CDA”) was never intended to protect technology companies from being held accountable for unlawful conduct or sex trafficking.

Salesforce’s own CEO, Marc Benioff, on October 16, 2019, has demanded Section 230 of the CDA be abolished with the need for “standards and practices be decided by law”

And, in late March, she actually prevailed. In a somewhat terrible decision, federal judge Andrew Hanen refused to grant Salesforce's motion to dismiss, and said that Salesforce's use of 230 here did not let it off the hook with a bizarre ruling that goes against pretty much all 230 precedent on the books:

... the Court cannot hold as a matter of law that CDA 230's protections apply to Salesforce. In particular, the Court is not persuaded that Salesforce is a provider of "an interactive computer service" entitled to protection.

WHAT?!? I mean, every other court has recognized that any website is considered an interactive computer service. I'm honestly having trouble recalling another cases where this definition is even an issue at all.

Moreover, it is unclear to the Court whether CDA 230 is even relevant, because Plaintiff has alleged that Salesforce directly and "knowingly benefitted" from providing services to facilitate sex trafficking. That allegation, if true, would elevate Salesforce's role beyond that of a mere publisher, which is the touchstone of CDA 230(c)(1).

This is also... just wrong. Having knowledge does not, in any way, elevate a website's role "beyond that of a mere publisher." There are multiple cases that say so, and nothing in the law says that knowledge changes anything. The whole thing is bizarre.

For what it's worth, the court did reject a bunch of McAdams' other claims regarding negligence and civil conspiracy, recognizing that it's a stretch to argue that providing the CRM tool to a service that provided tools to other third parties, some of whom used it for trafficking, somehow makes them liable. But, without the 230 immunity, the case still has to go on concerning Texas' anti-sex trafficking law.

Now, Salesforce is in the position of trying to ask the 5th Circuit appeals court to fix this awful ruling. Its first move is just to get the district court to let it pause the case at this point to get the 5th Circuit to take a look. And it's leaning hard on Section 230, the same law its CEO says should be abolished.

Both sides would benefit from resolving sooner rather than later the threshold, potentially dispositive issue whether section 230 of the Communications Decency Act applies to Salesforce and bars this lawsuit in its entirety.

In laying out the argument for why the 5th Circuit should get to review the case at this stage, Salesforce lawyers point out that if this is not allowed, it completely destroys the whole reason that 230 immunity exists in the first place -- to make one immune to these kinds of mistargeted lawsuits:

The section 230 issue presents a controlling question of law—particularly given that the Fifth Circuit considers section 230(c)(1) an “immunity provision[]” and regards its applicability as a threshold legal issue to resolve at the outset of litigation. MySpace, 528 F.3d at 418; accord Diez v. Google, Inc., 831 F. App’x 723, 724 (5th Cir. 2020) (per curiam). That necessity is driven “not because of the expense of litigation but because of the irretrievable loss of immunity from suit.” McSurely v. McClellan, 697 F.2d 309, 317 n.13 (D.C. Cir. 1982) (per curiam). So courts “aim to resolve the question of [section] 230 immunity at the earliest possible stage of the case because that immunity protects [providers] not only from ultimate liability,” but also from litigation itself. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citation omitted).

As a result, an interlocutory appeal is warranted to ensure meaningful appellate review of whether section 230 bars plaintiffs’ suit against Salesforce. If the litigation continues, even though Salesforce may eventually be protected “from ultimate liability,” it will have lost—irretrievably—section 230’s protection against being sued in the first place and “having to fight costly and protracted legal battles.” Nemet Chevrolet, 591 F.3d at 255 (citation omitted). Thus, as “resolution on appeal . . . would impact the course of litigation and could terminate the suit in this Court,” La. State Conf. of NAACP v. Louisiana, --- F. Supp. 3d. ---, No. 19-479-JWD-SDJ, 2020 WL 6130747, at *9 (M.D. La. Oct. 19, 2020), the section 230 issue is a controlling question of law that warrants immediate review.

As Salesforce points out, Judge Hanen's claim that Salesforce might not even be an "interactive computer service" goes against lots of other courts, even those who have reviewed whether or not Salesforce itself qualifies:

The Court’s initial hesitation as to whether Salesforce is an interactive computer service provider covered by section 230 is contrary to at least two other courts that have decided that issue as to Salesforce specifically. And decisions from courts across the country magnify the substantial ground for disagreement on when an interactive computer service provider is “treated” as a “publisher” under section 230.

To start, two other courts have very recently held that Salesforce meets section 230’s definition of an interactive computer service provider in cases involving virtually identical allegations. A California state court determined that “[t]he term ‘interactive computer service’ . . . applies to software providers such as [Salesforce].” Does #1 through #90 v. Salesforce.com, Inc., No. CGC-19-574770, slip op. at 4 (S.F. Super. Oct. 3, 2019).

That court explained that Salesforce’s “customer relationship management . . . software” supplies “enabling tools” that users can access through the internet. Does #1 through #90, at 4 (quoting 47 U.S.C. § 230(f)(4)). Those software tools, the court concluded, put Salesforce well within the “broad statutory definition[]” of an “access software provider,” because Salesforce provides “software . . . or enabling tools” that “transmit,” “receive,” “cache,” “search,” and “organize” data. Id. at 4–5 (quoting 47 U.S.C. § 230(f)(4)). And because “multiple users” can “access” the “computer server” with those tools, 47 U.S.C. § 230(f)(2), Salesforce is a “provider . . . of an interactive computer service” under section 230(c)(1), see Does #1 through #90, at 4.

The court also ruled that the plaintiffs’ claims impermissibly “treat[ed] [Salesforce] as the publisher of [third-party] information.” Does #1 through #90, at 5. The court explained that the plaintiffs’ claims relied on third-party content to establish Salesforce’s liability. Simply put, Salesforce could “only be liable if . . . linked to the[ ] advertisements” that were used to traffic the plaintiffs. Id. Because the plaintiffs alleged that Salesforce was linked to the ads for the reason that “its ‘platform and CRM’ [software] enabled Backpage to publish and disseminate” them, the court determined that the plaintiffs’ claims necessarily implicated Salesforce “as a publisher.” Id. The court therefore concluded that the claims were barred by section 230(c)(1)....

A Texas state court has held the same—namely, that Salesforce falls within section 230’s definition of an interactive computer service and that materially identical claims were barred under section 230. In Re: Jane Doe Cases, Tex. MDL Cause, No. 2020-28545, slip op. at 1–2 (Aug. 28, 2020). Thus, whether Salesforce is entitled to section 230 immunity may depend on whether the parties are in state or federal court in Texas—creating a risk of forum shopping between Texas courts that heightens the need for interlocutory review.

Then they note that there are lots of other cases regarding non-Salesforce defendants showing how broad the definition of an ICS truly is.

Relying on the plain statutory text, courts have held that many different types of providers are covered under the statute’s capacious definitions of an “interactive computer service” and “access software provider.” 47 U.S.C. § 230(f)(2) & (4); see, e.g., Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1175–76 (9th Cir. 2009) (provider of anti-malware software); Davis v. Motiva Enterprises, L.L.C., No. 09-14-00434-CV, 2015 WL 1535694, at *1, *3–4 (Tex. App.—Beaumont Apr. 2, 2015) (employer whose employee used the company’s “technology and facilities”); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 758–59 (Tex. App.—Beaumont 2014) (website host).

Other courts might therefore conclude (and indeed have concluded) that Salesforce—a provider of software that “enables . . . access by multiple users to a computer server,” 47 U.S.C. § 230(f)(2), where those users can use various tools to “transmit,” “receive,” “cache,” “search,” and “organize” customer data, id. § 230(f)(4)— falls within these definitional provisions, too.

As such, they note that plenty of courts -- including the 5th Circuit in which this district court resides -- have held that 230 immunizes websites from all kinds of civil liability if that liability touches on 3rd party content.

Likewise, the Fifth Circuit and a host of other courts have held that the “plain text” of section 230 immunizes interactive computer service providers from “any cause of action” that treats them as a “publisher” by seeking to hold them “liable for information originating with a third-party user of the service.” Diez, 831 F. App’x at 724; accord MySpace, 528 F.3d at 418 (negligence claims); see O’Kroley v. Fastcase, Inc., 831 F.3d 352, 354 (6th Cir. 2016) (invasion of privacy and other tort claims); Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 19–20 (1st Cir. 2016) (human trafficking claims); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101–02 (9th Cir. 2009) (collecting citations).

Hopefully they succeed, and the 5th Circuit overturns the initial ruling.

However, the bigger question may be whether or not Benioff has learned his lesson and might actually understand why Section 230 is so important for the wider internet, including his company?

Filed Under: fosta, interactive computer service, liability, section 230, sex trafficking
Companies: backpage, salesforce

Federal Court Orders Destruction Of Illegally-Obtained Sex Trafficking Sting Recordings

from the no-sex-traffickers-were-harmed-during-the-course-of-this-investigation dept

The expiring breaths of a sensationalistic failure are emanating from a Florida sex trafficking investigation's soon-to-be corpse. A massive sting operation -- built on surreptitious recordings of massage parlor employees and their customers -- ended with nothing more than a bunch of solicitation charges. The alleged massive sex trafficking operation was actually just a bunch of consensual activity, with massage parlor employees free to come and go as they pleased.

It still made headlines, mainly because New England Patriots owner Robert Kraft was one of those caught on camera. But nearly every attempted prosecution has been thwarted by the actions of law enforcement officers, whose recordings illegally intruded into private spaces, violating the Fourth Amendment. The Appeals Court of Florida tossed the allegedly incriminating recordings, finding them unconstitutional.

For some reason, the agencies that made the surreptitious, illegal recordings are still holding onto them. The state attorney's office has allowed the retention of the videos, claiming they might be useful to plaintiffs suing law enforcement officers and agencies over violated rights.

On the face of it, this seems like a reasonable assertion. There is at least one federal lawsuit involving this sting operation underway. But the state attorney -- David Aronberg -- thinks immunity (qualified or absolute) will allow him and several law enforcement agencies to escape unscathed. Until that happens, Aronberg wants the recordings to remain intact until this litigation concludes, claiming his office can't "legally or ethically" order the destruction of potential evidence against him.

But his arguments aren't working. As Elizabeth Nolan Brown reports for Reason, a federal judge has ruled against the state attorney.

In his January 22 order, Ruiz granted John Doe's motion to compel destruction of the massage room video. Ruiz ruled that the defendants "shall destroy the videos unlawfully obtained through the surveillance of the Orchids of Asia Day Spa […] from January 18, 2019 to January 22, 2019, including any body camera footage obtained during associated traffic stops as well as any copies thereof."

The motion to compel destruction was unopposed, and Ruiz noted that the destruction is "pursuant to the terms of the parties' settlement agreement."

So, let's sort this all out. The state attorney claimed the footage needed to be retained because these plaintiffs might want to use it as evidence in their lawsuit. But the plaintiffs actually wanted the footage destroyed and had to get the court to order the destruction the state attorney claimed wasn't "legal or ethical."

Retaining the footage plaintiffs wanted destroyed was, at the very least, unethical. And this order makes any further retention illegal. It would have seemed apparent destruction was the right way to go unless the plaintiffs requested otherwise, given that the state appeals court ruled last year that the recordings were illegally obtained and could not be used as evidence in the state's prosecutions.

This about wraps up this sordid little law enforcement escapade. And another sex trafficking sting resulting in the arrest of zero sex traffickers is par for the course for law enforcement agencies which appear to be looking for any excuse to engage in titillating wastes of taxpayers' time and money.

Filed Under: florida, moral panic, sex trafficking, sex work

Federal Court Tosses Constitutional Challenge Of FOSTA Brought By The Only Person The Feds Have Used FOSTA Against

from the badly-written,-randomly-enforced dept

Another constitutional challenge to FOSTA has failed, at least for the time being. The bill no one in law enforcement thought would actually help combat sex trafficking became law in early 2018. Since then, it has had zero effect on sex trafficking. And the impetus for its creation -- the prosecution of Backpage execs -- proceeded right along without the law in place.

FOSTA's constitutionality has been challenged before. Last summer, the DC Court of Appeals revived a challenge after the plaintiffs were shot down at the district level. The Appeals Court said the law was littered with broad language that could be construed to target legal actions and behavior. It particularly had a problem with the terms "promote" and "facilitate" when used in conjunction with the law's sex trafficking language.

Andrews has established an Article III injury-in-fact because she has alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Her alleged conduct is “arguably affected with a constitutional interest,” because Andrews’ intended future conduct involves speech. Andrews operates a website that allows sex workers to share information. Her conduct is “arguably proscribed” by FOSTA because it is a crime to own, manage, or operate an “interactive computer service[]” with the intent to “promote or facilitate the prostitution of another person,” 18 U.S.C. § 2421A(a). FOSTA does not define “promote” or “facilitate,” nor does it specify what constitutes “prostitution,” a term undefined by federal law. Nor are these terms limited by a string of adjacent verbs (such as advertises, distributes, or solicits) that would convey “a transactional connotation” that might narrow the statute’s reach.

Not narrow enough, said the Appeals Court. Unfortunately, a federal court in Texas has come to the opposite conclusion about the same terms. (via Eric Goldman)

Its decision says the terms "promote" and "facilitate" are narrow enough to limit collateral damage to free speech and other protected activity. This challenge was filed by Wilhan Martono -- the operator of CityXGuide, someone the DOJ finally used FOSTA against more than two years after it was signed into law.

The Texas court says the language is narrow, targeting only the facilitation of the prostituting of someone else. It does not target prostitution in general. That being said, sex workers who moved to CityXGuide after the shutdown of Backpage were nonetheless collateral damage, even if the law is supposedly in place to punish sex trafficking, not consensual sex work.

Here's the court's rationale for its Constitutional call:

In this case, "promotes" and "facilitates" are not two terms of many in a list. However, these two terms do not stand alone and without context. FOSTA specifically criminalizes owning, managing, or operating a computer service with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person.

Most importantly, FOSTA connects both promotion and facilitation to the prostitution of another person. FOSTA does not obviously criminalize speech promoting prostitution generally. Instead, it prohibits an individual from committing certain acts with the intent to promote the prostitution of another person or the intent to facilitate the prostitution of another person. In this context the word "facilitates" is most clearly read as referring to conduct that aids or assists in the prostitution of another person. Thus, the use of the word "facilitates" in FOSTA does not appear substantially to restrict protected speech relative to the scope of the law's plainly legitimate application.

Then the court goes further, equating the hosting of ads for sex work with the act of pimping.

FOSTA explicitly prohibits individuals from performing certain acts with the intent to promote prostitution of another person. It does not prohibit promoting prostitution more generally. In this context, "promotes" can most reasonably be interpreted as "to pander" or "pimp" as the Government suggests.

Even the government didn't argue Martono was engaged in the act of pimping. There are no charges related to that. Instead, his prosecution rests on FOSTA and the "facilitate/promote" language that Martono (unsuccessfully) challenged.

On more logical footing, the court finds the terms "jurisdiction" and "prostitution" adequately defined. But it still says the broad terms that turn hosting into pimping don't threaten protected speech or other legal activities. And since Martono's indictment hinges on FOSTA, the indictment is also good and legal.

The Court holds here that FOSTA is neither unconstitutionally vague nor overbroad. Further, the Court determines that the indictment against Martono was sufficient. Because FOSTA is not unconstitutionally vague or overbroad and the indictment against Martono is sufficient, the Court denies Martono's motion to dismiss.

Martono is sure to appeal this. But he'll be doing it in a circuit that tends to sympathize with law enforcement and isn't exactly known as the bastion of free speech. If it's taken up by the Fifth Circuit, perhaps the Appeals Court will find the DC Appeals Court's reasoning persuasive. Until then, FOSTA is still technically Constitutional. And it will continue to never be used to round up actual sex traffickers.

Filed Under: doj, fosta, section 230, sex trafficking, sex work, wilhan martono
Companies: cityxguide

Actual Facts Undercut Media's Narrative That Law Enforcement Task Force Broke Up A Multi-State Sex Trafficking Operation

from the reality-is-way-less-lurid-than-headline-writers-would-like-it-to-be dept

If sex trafficking was actual traffic, people would rarely complain about congestion. It's not that it doesn't happen. It's that it doesn't happen with the frequency claimed by government officials in order to do things like dismantle Section 230 immunity or pursue baseless prosecutions against online ad services.

But it always sounds like an omnipresent threat thanks to far too many news organizations who are apparently unwilling to challenge claims made by officials, much less dig into the details of trafficking stings. Almost without exception, big human/sex trafficking busts end with little to show for them but some standard solicitation arrests and a handful of jailed sex workers of legal age who haven't been "trafficked."

There's a lot of blame to spread around for this turning from small-scale misguided hysteria into the focal point of legislation that harms the immunity granted to website and platform owners. But we can start with media, which hasn't met a sex trafficking story it isn't willing to hype, even when the facts don't jibe with the headlines. Michael Hobbes punches holes in the latest sex trafficking horror story covered nationwide -- one that contains very little horror and almost no sex trafficking.

This is how it landed on people's virtual doorsteps following the government's press release:

“U.S. Marshals Find 39 Missing Children in Georgia During ‘Operation Not Forgotten,’” proclaimed the government’s official press release. Federal agents and local law enforcement, it said, had rescued 26 children, “safely located” 13 more and arrested nine perpetrators, some of whom were charged with sex trafficking.

The facts of the operation weren’t clear (what does “safely located” mean, exactly?), but it didn’t stop media outlets from taking up the story. “Missing Children Rescued in Georgia Sex Trafficking Bust” wrote The Associated Press, a headline dutifully repeated in The New York Times. “39 Missing Children Located in Georgia Sex Trafficking Sting Operation” was People magazine’s version. Few media outlets contributed any original reporting; the vast majority of stories were little more than rewritten versions of the U.S. Marshals Service’s press release.

These credulous takes of the information offered by the US Marshals Service became even hotter once it hit Twitter, with people asking why finding 39 trafficked children wasn't a bigger story. But that's not even what the Marshals' press release said. It only said law enforcement has rescued 26 "endangered" children, found 13 other missing children in "safe" locations, and arrested only nine people. The release mentioned "crimes related to sex trafficking" but did not specify any of the nine had been charged with sex trafficking. It wasn't even a "sex trafficking sting." It was a joint task force operation to find missing children.

The details larger press outlets were unwilling to dig into have been uncovered by Michael Hobbes. Here's what the US Marshals had to say about the operation the media insisted was a sex trafficking sting.

“This was not a designated anti-trafficking operation,” Darby Kirby, a U.S. Marshals Service inspector involved with the operation, told HuffPost. Operation Not Forgotten, the name law enforcement gave the recovery effort, was a collaboration between state and federal authorities to locate 78 “critically missing” children.

The good news is the task force found 65 of the 78 "critically missing" children. Thirty-nine were "recovered," which means they weren't necessarily in danger, but possibly just not living with the custodial parent. The other 26 cases were closed, possibly because the child had already been located by Child Protective Services or had returned home prior to the operation.

As for the sex trafficking that was the focal point of national news stories, it's almost a footnote.

The operation netted only one new charge of sex trafficking against a perpetrator. Of the seven men and two women arrested, three were charged with probation violations, one was charged with unlawful possession of a firearm and two were accused of violating custody arrangements. One person was arrested on a warrant for a previous sex trafficking charge, and two more were arrested on warrants for sex crimes in other states.  

And it wasn't just a rescue operation. Law enforcement was also looking for underage criminal suspects.

It’s also worth noting that the operation was also set up to arrest children, not just rescue them. Katie Byrd, the communications director for the Georgia attorney general’s office, noted that two of the missing kids were suspects in homicide cases, and one was a person of interest in another.  

Plus, 11 of the kids had, in Byrd’s words, “some kind of gang affiliation.” Byrd did not specify how many juveniles were arrested in connection with the operation, but, according to numbers her office provided, it appears that up to seven warrants were issued for underage offenders.

Reporting like this can't really be called "reporting." It should be called "stenography." And when officials were actually asked for comment, they just made things worse. The director of the US Marshals Service -- Donald Washington -- claimed 300 underage girls were lured into trafficking every month… and that's just in the Atlanta area. But the stats from operations like this just don't bear that claim out. In this operation, officials claimed just six of the sixty-five children rescued were considered "trafficked." Keep in mind that a minor that performs sex work on their own is considered "trafficked," even if there's no sex trafficker involved. That's the statutory definition. If Atlanta alone is responsible for 3,600 trafficked minors a year, you'd think an operation that took place in Georgia would have found a lot more trafficking victims.

It's not that minors are never forced into sex work by traffickers. It's that it happens far less frequently than irresponsible headlines (and irresponsible statements by law enforcement officials) would have you believe. The good news is missing children were located. But, sadly, that's not enough to interest people when there's an entire internet full of bad faith arguments, overblown rhetoric, and grandstanding officials.

Filed Under: georgia, hype, media, sex trafficking