sesta – Techdirt (original) (raw)

New Dumb Attack Against Gigi Sohn Tries To Shame Her For Being On The EFF’s Board

from the this-is-what-corruption-looks-like dept

We’ve explained how telecom and media giants have pulled out all the stops trying to block Gigi Sohn from being seated at the FCC. That has involved a sleazy smear campaign, seeded in the press by non-profits linked to companies like News Corporation, AT&T, and Comcast, falsely accusing Sohn of being a radical extremist who hates Hispanics, rural Americans, cops, puppies, and freedom.

With Sohn freshly re-nominated by the Biden administration, a new bizarre smear campaign popped up in press outlets favorable to industry. It began yesterday with this piece in the Daily Mail by Jen Smith (which I won’t link to) which accuses Sohn of having links to a purportedly scandalous nonprofit and a (gasp) dominatrix:

The nonprofit in question is the widely respected Electronic Frontier Foundation. The attack attempts to frighten rubes by making the EFF’s widely well-regarded policy advocacy on SESTA/FOSTA sound sleazy and scary. The EFF of course opposed SESTA/FOSTA because the law was an unconstitutional mess that harmed free speech and made sex workers and victims of human trafficking dramatically less safe.

Sohn joined the EFF’s board in 2018, so there’s no actual news here. The only goal of the report by the Daily Mail’s Jen Smith is to associate Sohn’s name in headlines with something scandalous. It’s gross, it’s homophobic, and it’s pretty typical of the attacks Sohn has faced for the better part of the last year as the first openly LGBTQ commission nominee in history.

The story was simultaneously run over at Fox News, which used a slightly less feral headline but still tried to falsely suggest Sohn opposes fighting human trafficking:

The goal of these attacks is to keep the FCC without a voting majority necessary to do anything popular with consumers, like holding telecom monopolies accountable, restoring net neutrality rules, restoring the FCC’s gutted consumer protection authority, or bringing back media consolidation restrictions. Its purpose is also to scare Senators on the fence away from voting to confirm Sohn.

This is how this game usually works. Some seedy right wing K Street public affairs firm hired by telecom or media (usually AT&T, Comcast, or News Corporation) will approach industry-friendly journalists asking them if they’d like a “scoop.” Said non-scoop is then run unquestioningly by said journalists, who wind up acting more like propagandist marionettes than anything resembling a reporter.

Then in a few months or weeks, when Sohn faces down a new confirmation hearing, you’ll see Republican Senators cite these reports verbatim as evidence Sohn shouldn’t be seated. It’s all a very dumb game designed to provide the illusion that these are genuine concerns based on genuine journalism, when the whole thing is just a big performance being orchestrated by some dodgy public affairs firm.

The entirety of the GOP opposes Sohn because that’s what they’ve been told to do by telecom and media giants if they want campaign contributions. Said giants have also targeted Democratic Senators Mark Kelly of Arizona, Catherine Cortez Mastro of Nevada and Joe Manchin of West Virginia to prevent Sohn from getting the basic Senate majority needed to move her nomination forward.

Recall that Trump’s FCC nominee, Nathan Simington, was named and confirmed to the FCC in under 30 days despite having virtually no telecom experience. In contrast Sohn, a hugely popular reformer with experience both in and out of government, is headed well into her second year of contentious hearings.

It’s still very likely Sohn gets confirmed, barring some epic and corrupt stupidity on the part of Democrats (an ever-present possibility). Telecom and media giants just want the process to take as long as humanly possible, so by the time she’s seated the FCC will only have enough time to handle a handful of issues before the next Presidential election risks undoing all of it.

It’s fairly telling that there’s so little in Sohn’s record to actually criticize that industry waterboys have been forced to resort to trying to make a scandal out of Sohn’s membership of a widely respected tech policy organization. Still, it’s another example of how grotesquely corrupt the U.S. is, how actual reformers are held to a comically higher standard than anyone else, how our press is fundamentally broken, and why, as they say, we can’t have nice things.

Filed Under: broadband, fcc, fosta, gigi sohn, human trafficking, lobbying, monopolies, net neutrality, sesta, sex work, smear campaign, telecom
Companies: eff

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

Why Does Richard Blumenthal Always Feel The Need To Lie About Section 230?

from the it's-a-bad-trait dept

Richard Blumenthal has spent years trying to undermine Section 230 of the CDA. Unlike some Senators who have only just jumped onto the silly, counterproductive bandwagon, Blumenthal has been mad about 230 since long before he was even a Senator. Back in 2008, when he was Connecticut’s ambitious grandstanding Attorney General, he attacked Craigslist because people had found some ads for sex work on the site. Again, this was protected by Section 230, so Blumenthal just kept threatening Craigslist until it finally made a change: rather than allowing its adult ads to be placed for free (as it had in the past), it required payment with a credit card, which Craigslist (quite reasonably) said would likely discourage more sketchy ads, and would leave a paper trail for law enforcement for any illegal activity. Blumenthal initially celebrated this victory… before turning around and grandstanding again two years later… that Craigslist was now “profiting” off of sex work because it was charging for those ads (ignoring that it only did so because he pressured them, even though he knew he was limited by 230).

Since getting elected to the Senate, Blumenthal has kept up this weird infatuation with hating the internet. He was also the lead Democratic sponsor on SESTA (which became FOSTA), the bill to chip away at Section 230, which has now been seen to make it more difficult for law enforcement to track down sex traffickers, and has put many women at risk.

Indeed, in the run-up to that bill passing, perhaps the most frustrating thing was that Blumenthal has a weird penchant to simply lie about Section 230 and what it did and how it worked. And then after the bill was passed, he flat out lied about what his own bill actually did. In a normal society, you might think that maybe journalists should call him on that.

Now, with his dangerous EARN IT Act being voted out of committee, Blumenthal is back to his old tricks. As reported by Newsweek, during last week’s markup, Blumenthal made some statements about Section 230 that are simply untrue. Indeed, they’re part of my omnibus post on wrong things people say about Section 230:

Blumenthal stood by the Act’s design, saying: “There is no reason for these platforms to have blanket immunity, a shield against any accountability that is not enjoyed by any other industry in the same way.”

Pretty much all of that is wrong. They do not have “blanket immunity.” They have a narrowly limited immunity for (1) content they didn’t create, and (2) for moderation choices they make — not including any violations of federal law (which is what the EARN IT Act covers) or intellectual property. In other words, whatever immunity Section 230 does cover, it doesn’t even cover the very thing that the Act Blumenthal is praising is focused on.

Second, the line about 230 being a shield “that is not enjoyed by any other industry in the same way” is also nonsense. Section 230 applies to every website. And these days, pretty much every industry is online and everyone has a website. Section 230 protects them all. It is not a special protection for one industry. And, since most of Section 230 is really just a procedural out for bogus litigation that would be barred under the 1st Amendment, I might want to remind Senator Blumenthal that everyone is also protected by the 1st Amendment.

But it really does raise the question: why does Blumenthal always need to misrepresent Section 230. I get that it helped him jump up from Attorney General to Senator by falsely attacking a website that was protected by 230 and lying about it, but dude, leave well enough alone. You’ve done enough damage already.

Filed Under: blanket immunity, csam, earn it, fosta, immunity, richard blumenthal, section 230, sesta

Lindsey Graham's Sneak Attack On Section 230 And Encryption: A Backdoor To A Backdoor?

from the if-it-aint-broke dept

Both Republicans and Democrats have been talking about amending Section 230, the law that made today’s Internet possible. Most politicians are foggy on the details, complaining generally about “Big Tech” being biased against them (Republicans), “not doing enough” about harmful content (Democrats, usually), or just being too powerful (populists on both sides). Some have promised legislation to amend, while others hope to revoke Section 230 entirely. And more bills will doubtless follow.

Rather than get mired in the specifics about how tinkering with Section 230 could backfire, Sen. Lindsey Graham is circulating a draft bill called the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2019” — the “EARN IT Act of 2019,” leaked by Bloomberg yesterday. Democratic Sen. Richard Blumenthal has apparently been involved in drafting.

At first blush, the bill may seem uncontroversial: it would create a presidential commission of experts to “develop recommended best practices for providers of interactive computer services regarding the prevention of online child exploitation conduct.” Who could argue with that? Indeed, given how little lawmakers understand online content moderation, getting analysis and recommendations from real experts about Section 230 is probably the only way out of the increasingly intractable, empty debate over the law.

But what Graham’s bill would actually do is give the Attorney General a blank check to bypass Congress in cracking down on Internet services in ways that may have little to do with child sexual abuse material (CSAM). Specifically, the bill would:

  1. Amend Criminal Law & Section 230: Section 230 has never shielded operators of websites and Internet services from federal criminal prosecution for CSAM. But the Graham bill would create broad new legal risks by lowering the (actual) knowledge requirement from “knowingly” to “recklessly” (which would include an after-the-fact assessment of what the company “should have known”) and amending Section 230 to authorize both criminal prosecution and civil suits under state law. For the first time, operators could be sued by plaintiff’s lawyers in class-action suits for “reckless” decisions in designing or operating their sites/services.
  2. Condition Section 230 Immunity: The commission’s (a) recommended “best practices” would quickly become (b) conditions for invoking Section 230 immunity against greatly expanded liability for CSAM — immunity so vital to the operation of many online services that (c) the conditions would be tantamount to legal mandates.

As drafted, Graham’s bill entails a shocking abandonment of the most basic principles of how administrative agencies make rules — based on the fiction that the “best practices” wouldn’t be effectively mandatory — by allowing the AG to bypass Congress on other controversial issues like mandatory age verification or even encryption. As I told Bloomberg: “The absolute worst-case scenario could easily become reality: DOJ could effectively ban end-to-end encryption.” Signal, Telegram and Whatsapp all could no longer exist in their current form. All would be required to build in backdoors for law enforcement because all could be accused of “recklessly” designing their products to make it impossible for the operators or law enforcement to stop CSAM sharing. The same could happen for age verification mechanisms. It’s the worst kind of indirect regulation. And because of the crazy way it’s done, it could be hard to challenge in court.

The rhetorical premise of the “EARN IT” Act — that Section 230 was a special favor that tech companies must continually “earn” — is false. Republicans have repeatedly made this claim in arguing that only “neutral” platforms “deserve” Section 230’s protections, and Democrats likewise argue that website operators should lose Section 230’s protections if they don’t “do more” to combat disinformation or other forms of problematic speech by users.

Congress has never conditioned Section 230 in the way Graham’s bill would do. Section 230, far from being a special favor or subsidy to tech companies, was crafted because, without its protections, website operators would have been discouraged from taking active measures to moderate user content — or from hosting user-generated content altogether, often referred to as the “moderator’s dilemma.”

Here’s how Graham’s monstrous, Rube-Goldberg-esque legal contraption would work in practice. To understand which services will be affected and why they’d feel compelled to do whatever DOJ commands to retain their Section 230 immunity, we’ll unpack the changes to criminal law first.

Step #1: Expanding Legal Liability

Graham’s bill would amend existing law in a variety of ways, mostly paralleling SESTA-FOSTA: while the 2018 law expanded the federal prostitution law (18 U.S.C. § 1591, 2421A), the Graham bill focuses on “child exploitation” imagery (child porn). (Note: To help prosecutors prosecute sex trafficking, without the need for any amendment to Section 230, TechFreedom supported toughening 18 U.S.C. § 1591, 2421A to cover trafficking of minors when FOSTA was a stand-alone bill — but opposed marrying FOSTA with SESTA, the Senate bill, which unwisely amended Section 230.) Specifically, the Graham bill would:

  1. Create a new civil remedy under 18 U.S.C. § 2255 that extends to suits brought against an “interactive computer service” for reckless § 2252 violations;
  2. Amend Section 230(e) to exclude immunity for state criminal prosecution for crimes coextensive with § 2252; and
  3. Amend Section 230(e) to exclude immunity for civil causes of action against an “interactive computer service” pursuant to other state laws if the underlying claim constitutes a violation of § 2252 (or by operation of § 2255(a)(1)). Most notably, this would open the door to states to authorize class-action lawsuits brought by entrepreneurial trial lawyers — which may even be a greater threat than criminal prosecution since the burden of proof would be lower (even though, in principle, a civil plaintiff would have to establish that a violation of criminal law had occurred under Section 2252).

The Graham bill goes further than SESTA-FOSTA in two key respects:

  1. It would lower the mens rea (knowledge) requirement from “knowingly” to “recklessly,” making it considerably easier to prosecute or sue operators; and
  2. Allow for state criminal and civil prosecution for hosting child exploitation imagery that could violate § 2252).

In a ploy to make their bill seem less draconian, SESTA-FOSTA’s sponsors loudly proclaimed that they preserved “core” parts of Section 230’s immunity. Graham will no doubt do the same thing. Both bills leave untouched Section 230(c)(2)(A)’s immunity for “good faith” content removal decisions. But this protection is essentially useless against prosecutions for either sex trafficking or CSAM. In either case, the relevant immunity would be Section 230(c)(1), which ensures that ICS operators are not held responsible as “publishers” for user content. The overwhelming majority of cases turn on that provision — and that is the provision that Graham’s bill conditions on compliance with the AG’s “best practices.”

Step #2: How a “Recommendation” Becomes a Condition to 230

The bill seems to provide an important procedural safeguard by requiring consensus — at least 10 of the 15 commissioners — for each recommended “best practice.” But the chairman (the FTC chairman or his proxy) could issue his own “alternative best practices” with no minimum level of support. The criteria for membership ensure that he’d be able to command at least a majority of the commission, with the FTC, DOJ and Department of Homeland Security each getting one seat, law enforcement getting two, prosecutors getting two more — that’s seven just for government actors — plus two more for those with “experience in providing victims services for victims of child exploitation” — which makes nine reliable votes for “getting tough.” The remaining six Commissioners would include two technical experts (who could turn out to be just as hawkish) plus two commissioners with “experience in child safety” at a big company and two more from small companies. So the “alternative” recommendations would almost certainly command a majority anyway.

More importantly, it doesn’t really matter what the Commissioners recommend: the Attorney General (AG) could issue a radically different set of “best practices” — without public comment. He need only explain why he modified the Commission’s recommendations.

What the AG ultimately issues would not just be recommendations. No, Graham’s bill would empower the AG to enact requirements for enjoying Section 230’s protections against a range of new civil lawsuits and from criminal prosecutions related to “child exploitation” or “child abuse” — two terms that the bill never defines.

Step #3: How Conditioning 230 Eligibility Amounts to a Mandate

Most websites and services, especially the smallest ones, but even the largest ones, simply couldn’t exist if their operators could be held civilly liable for what their users do and say — or if they could be prosecuted under an endless array of state laws. But it’s important to stress at the outset that Section 230 immunity isn’t anywhere near as “absolute” or “sweeping” as its critics claim. Despite the panic over online sex trafficking that finally led Congress, in 2018, to pass SESTA-FOSTA, Section 230 never hindered federal criminal prosecutions. In fact, the CEO of Backpage.com — the company at the center of the controversy over Section 230 — pled guilty to facilitating prostitution (and money laundering) the day after SESTA-FOSTA became law in April 2018. Prosecutors didn’t need a new law, as we stressed at the time.

Just as SESTA-FOSTA created considerable new legal liability for websites for sex trafficking, Graham’s bill does so for CSAM (discussed below) — which makes Section 230 an even more critical legal shield and, in turn, makes companies more willing to follow whatever requirements might be attached to that legal shield.

How Broad Could the Bill’s Effects Be?

Understanding the bill’s real-world effects depends on three separate questions:

  1. What counts as “child exploitation” and “child abuse?”
  2. Which companies would really need Section 230 protection against new, expanded liability for CSAM?
  3. What could be the scope of the AG’s conditions to 230 liability? Must they be related to conduct covered by Section 230?

What Do We Mean by “Child Exploitation” and “Child Abuse?”

The bill’s title focuses on “child exploitation” but the bill also repeatedly talks about “child abuse” — without defining either term. The former comes from the title of 18 U.S.C. § 2252, which governs the “visual depiction involves the use of a minor engaging in sexually explicit conduct” (CSAM). The bill directly invokes that bedrock law, so one might assume that’s what Graham had in mind. There is a federal child abuse law but it’s never mentioned in the bill.

This lack of clarity becomes a significant problem because, as discussed below, the bill is so broadly drafted that the AG could mandate just about anything as a condition of Section 230 immunity.

Which Websites & Services Are We Talking About?

Today, every website and Internet service operator faces some legal risk for CSAM. At greatest risk are those services that allow users to communicate with each other in private messaging or groups, or to share images or videos, because this is how CSAM is most likely to be exchanged. Those who traffic in CSAM are known to be highly creative in finding unexpected places to interact online — just as terrorist groups may use chat rooms in video games to hold staff meetings.

It’s hard to anticipate all the services that might be affected by the Graham bill, but it’s safe to bet that any messaging, photo-sharing, video-hosting or file-sharing tool would consider the bill a real threat. At greatest risk would be services that cannot see what their users do because they offer end-to-end encryption. They risk being accused of making a “reckless” design decision if it turns out that their users share CSAM with each other.

What De Facto Requirements Are We Talking About?

Again, Graham’s bill claims a narrow scope: “The purpose of the Commission is to develop recommended best practices for providers of interactive computer services regarding the prevention of online child exploitation conduct.”

The former term (ICS) is the term Section 230 uses to refer to covered operators: a service, system or software that “provides or enables computer access by multiple users to a computer server.” You might think the Graham bill’s use of this term means the bill couldn’t be used to force Apple to change how it puts E2EE on iPhones — because the iPhone, unlike iMessage, is not an ICS. You might also think that the bill couldn’t be used to regulate things that seem unrelated to CSAM — like requiring “fairness” or “neutrality” in content moderation practices, as Sen. Hawley has proposed and Graham has mentioned repeatedly.

But the bill won’t actually stop the AG from using this bill to do either. The reason is the same in both cases: this is not how legislation normally works. In a normal bill, Congress might authorize the Federal Communications Commission to do something — say, require accessibility features for disabled users of communications services. The FCC could then issue regulations that would have to be reasonably related to that purpose and within its jurisdiction over “communications.” As we know from the 2005 American Library decision, the FCC can’t regulate after the process of “communications” has ended — and thus had no authority to require television manufacturers to build in “broadcast flag” technology on their devices to ensure that, once the device received a broadcast signal, it could not make copies of the device unless authorized by the copyright holder.

But that’s not how Graham’s bill would work. A company that only makes devices, or installs firmware or operating system on them, may not feel compelled to follow the AG’s “best practices” because it does not operate an ICS, and, as such, could not claim Section 230 content (and is highly unlikely to be sued for what its users do anyway). But Apple or Google, in addition to doing these things, also operate multiple ICSes. Nothing in the Graham bill would stop the AG from saying that Apple would lose its Section 230 immunity for iMessage, iCloud or any ICS if it does not build in a backdoor on iPhones for law enforcement. Apple would likely comply. And even if Apple resists, smaller companies with fewer legal resources would likely cave under pressure.

In fact, the Graham bill specifically includes, among ten “matters addressed,” the “retention of evidence and attribution or user identification data relating to child exploitation or child sexual abuse, including such retention by subcontractors” — plus two other prongs relating to identifying such material. While these may appear to be limited to CSAM, the government has long argued that E2EE makes it impossible for operators either to identify or retain CSAM — and thus that law enforcement must have a backdoor and/or that operators must be able to see everything their users do (the opposite of E2EE).

Most of the “matters addressed” pertain to child exploitation (at least in theory) but one other stands out: “employing age limits and age verification systems.” Congress tried to mandate minimum age limits and age verification systems for adult materials back in the Child Online Protection Act (COPA) of 1998. Fortunately, that law was blocked in court in a protracted legal battle because adults have a right to access sensitive content without being subjected to age verification — which generally requires submitting a credit card, and thus necessarily entails identifying oneself. (The court also recognized publishers’ rights to reach privacy-sensitive users.)

Rep. Bart Stupak’s (D-MI) ‘‘Online Age Verification and Child Safety Act’’ of 2009 attempted to revive age verification mandates, but died amidst a howl of protest from civil libertarians. But, like banning E2EE, this is precisely the kind of thing the AG might try to mandate under Graham’s bill. And, critically, the government would argue that the bill does not present the same constitutional questions because it is not a mandate, but rather merely a condition of special immunity bestowed upon operators as a kind of subsidy. Courts should protect us from “unconstitutional conditions,” but given the state of the law and the difficulty of getting the right parties to sue, don’t count on it.

These “matters addressed” need not be the only things the Commission recommends. The bill merely says the “[t]he matters addressed by the recommended best practices developed and submitted by the Commission … shall include [the ten things outlined in the bill].” The Commission could “recommend” more — and the AG could create whatever conditions to Section 230 liability he felt he could get away with, politically. His sense of shame, even more than the courts or Congress, would determine how far the law could stretch.

It wouldn’t be hard to imagine this AG (or AGs of, sadly, either party) using the bill to reshape moderation practices more generally. Republicans increasingly argue that social media are “public fora” to which people like Alex Jones or pseudo-journalistic outlets like Gateway Pundit have First Amendment rights of access. Under the same crazy pseudo-logic, the AG might argue that, the more involved the government becomes in content moderation through whatever conditions he imposes on Section 230 immunity, the more essential it is that website operators “respect the free speech rights” of users. Ultimately, the Commission would operate as a censorship board, with murky but enormous powers — and the AG would be the ultimate censor.

If this sounds like a crazy way to make law, it is! It’s free-form lawmaking — not “we tell what you must do” (and you can raise constitutional objections in court) but rather “we’re not gonna tell you what to do, but if you don’t want to be sued or prosecuted under vague new sex trafficking laws, you’d better do what we tell you.” Once the Commission or the AG strays from “best practice” recommendations that strictly related to CSAM, then the floodgates are open to politically motivated back-door rulemaking that leave platforms with no input and virtually no avenue for appeal. And even if the best practices are related to CSAM, the way the Commission makes what amounts to law will still be unprecedented, secretive, arbitrary and difficult to challenge in court.

Other Key Aspects of How the Bill Would Work

The bill would operate as follows:

The bill also grants DOJ broad subpoena power to determine whether operators are, in fact, living up to their certification of compliance with the AG’s “best practices.” Expect this power to be used aggressively to turn tech companies inside out.

Conclusion

In the end, one must ask: what problem is the Graham bill trying to solve? Section 230 has never prevented federal criminal prosecution of those who traffic in CSAM — as more than 36,000 individuals were between 2004 and 2017. Website operators themselves already have enormous legal liability for CSAM — and can be prosecuted by the Department of Justice for failing to cooperate with law enforcement, just as Backpage executives were prosecuted under Federal sex trafficking before SESTA-FOSTA (and plead guilty).

The Graham bill seems to be designed for one overarching purpose: to make services that offer end-to-end encryption effectively illegal, and ensure that law enforcement (and the intelligence agencies) has a backdoor into every major communications platform.

That would be outrageous enough if it were done through a direct mandate, but doing it in the roundabout way Graham’s bill proposes is effectively a backdoor to a backdoor. Unfortunately, that doesn’t mean the bill might not suddenly move quickly through Congress, just as SESTA did. Be ready: the “Cryptowars” may finally turn very, very hot.

Filed Under: encryption, fosta, lindsey graham, privacy, section 230, sesta

Having Learned Absolutely Nothing From The Failures Of FOSTA, Senators Graham & Blumenthal Prep FOSTA 2.0

from the guys,-seriously? dept

Just as some in Congress are finally realizing that perhaps all of the moralizing around the need for FOSTA missed the fact that it actually put more people at risk, Senators Richard Blumenthal (an original sponsor of what became FOSTA) and Lindsey Graham are preparing for FOSTA 2.0 instead. This is coming a few months after Graham’s big grandstanding “but think of the children online” hearing that was basically a few hours of clueless moral panic about things that insecure adults were absolutely positive the kids were getting up to on their phones.

The latest reporting on the planned “let’s break Section 230 a bit more” bill from Graham and Blumenthal is that they’ll create a new FOSTA-like exemption from Section 230 protections for any internet company found to have hosted “child sex abuse material” (the industry’s new favorite acronym: CSAM). From what I’ve heard in talking to people on the Hill, a “commission” would be formed that would set forth “best practices” for preventing CSAM on their platforms, and if an internet company wanted to “earn” its CDA 230 protections, it would need to show that it complied with the commission’s recommendations. Also, “certifying” that you comply, but not actually complying, could lead to criminal charges.

Of course, what this misses is that basically all major internet companies already have systems in place to deal with this stuff — mostly in working with NCMEC, the National Center for Missing and Exploited Children. But, Congress loves nothing better than an issue it doesn’t understand but can grandstand over. A few months back, the NY Times ran a highly misleading article about CSAM, using the data around all of the vast amount of reporting that internet platforms did to NCMEC about the CSAM they found and dealt with… and using that to suggest the platforms themselves were to blame for the issue.

Child sexual abuse is a very real and very serious issue. But, as with “sex trafficking” and FOSTA last year, blaming the tech companies for it seems really misguided. That NY Times article did exactly that — using the numbers reported to NCMEC as evidence that the problem was growing (rather than as evidence that tech companies were doing a better job finding, blocking and reporting this stuff). Indeed, if you actually read down into the details, what the article is really demonstrating is the failure of the federal government and the Justice Department in tackling the very real criminal issues related to CSAM.

But what good Senator can grandstand about their own failures to fund the DOJ’s efforts, when it’s much more fun and headline-grabbing to send letters to 36 major internet companies demanding to know what they do to stop CSAM, which is now being used as the basis for this new law.

Again, these Senators could be funding the DOJ to tackle the problem. They could be helping NCMEC better deal with its own issues. But, instead, they’re going to attack the group of companies who have been overwhelmingly proactive in helping to fight CSAM. And, in the process, they’re going to end up poking another bunch of holes in Section 230, which (if FOSTA is any evidence) is likely to have the exact opposite impact of what the Senators insist will actually happen.

Filed Under: cda 230, csam, fosta, lindsey graham, richard blumenthal, section 230, sesta

New Bill Introduced To Study Impact Of SESTA/FOSTA On Sex Workers

from the good-to-see dept

A few months back, we were pleasantly surprised to see Rep. Ro Khanna announce plans to introduce a bill that would study the impact of FOSTA on sex workers. Earlier this week, he came through, introducing the SAFE SEX Workers Study Act, which he’s introducing with Rep. Barbara Lee in the House. On the Senate side, Senators Elizabeth Warren and Ron Wyden have introduced the companion bill. You can read the bill here. It would task Health & Human Services with studying the impact of FOSTA on sex workers, in coordination with the Centers for Disease Control and the National Institute of Health.

The bill is quite clear in laying out the concerns these elected officials have about the overall impact of FOSTA:

?There has been a host of anecdotal reporting from sex workers and community health organizations that following the enactment of SESTA/FOSTA, sex workers have faced greater threats of physical and sexual violence, as they are increasingly pushed off on-line platforms and onto the streets to seek clients. Despite these reports, no national study has been conducted to assess the impacts of SESTA/FOSTA on sex workers,? said Rep. Ro Khanna. ?Sex workers have relied on such internet platforms to screen clients and negotiate boundaries for consensual, transactional sex services, including condom use and other harm reduction strategies. While SESTA/FOSTA was intended to curb online sex trafficking, by banning the ?promotion of prostitution,? a host of internet platforms relied on by sex workers have shut down. My bill would mandate the first national study investigating how the shutdown of websites in connection with SESTA/FOSTA impact the health and safety of people who rely on consensual, transactional sex. I?m proud to partner with Rep. Lee, Senator Warren and the many advocates on this critical issue.?

?For far too long, SESTA/FOSTA has demonized and harmed sex workers,? said Rep. Lee. ?Instead of preventing sex trafficking, SESTA/FOSTA made it harder for sex workers to access critical health and safety resources. We need the full picture ? that?s why I?m proud to work with Rep. Khanna and Senators Warren and Wyden on this legislation to study the full effects of SESTA/FOSTA. It?s imperative we ensure that everyone has the full picture when making reproductive health decisions.?

?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,? said Senator Warren. ?I?m glad to be working with Representatives Khanna and Lee, and Senator Wyden to do just that with the SAFE SEX Workers Study Act.?

?Last year I warned that forcing websites to take down any mention of sex work would remove agency from sex workers and put them at great risk of violence and abuse, all while making it harder to catch sex traffickers and aid victims of human trafficking. So far, initial reports from cities across the country show that violence against sex workers is rising dramatically and there?s little evidence that this law is helping victims. Representatives Khanna, Lee and Senator Warren are taking the common-sense position that HHS should study the impacts of SESTA-FOSTA on the most vulnerable members of society, so that Congress can make informed policy decisions, rather than chasing knee-jerk responses,? said Senator Wyden.

As some are noting, this study could be a first step to repealing FOSTA-SESTA (though the law is still being challenged in the courts as well).

The bill already has a bunch of co-sponsors — though I’ll note that there are no Republican cosponsors, so the bill at this point is not bipartisan. Also of note, one of the cosponsors (as far as I can tell, the only one where this is true), Rep. Bonnie Watson Coleman of New Jersey, was also a cosponsor of FOSTA. Still, Senator Warren did vote for SESTA in the Senate, so it’s good to see her appear to recognize that may have been a mistake. It’s still not clear if this bill will go anywhere, but just the fact that some in Congress are recognizing that FOSTA may have put more people in danger (even as it was pitched as a way of “protecting” victims) is at least a good start.

Filed Under: barbara lee, elizabeth warren, fosta, health, ro khanna, ron wyden, sesta, sex workers, study

District Court Misses The Forest For The Trees In Dismissing Constitutional Challenge To FOSTA

from the stop-hitting-yourself dept

It’s like the scene in the Naked Gun, where Leslie Nielsen stands outside the exploding fireworks factory telling everyone, “Nothing to see here. Please disperse.” Such is the decision by the district court dismissing the EFF’s lawsuit challenging the constitutionality of FOSTA.

Since FOSTA’s passage, many have largely been reacting in terror at its vague, yet broad, language threatening civil and even criminal liability. It has led to the censorship of enormous swathes of legitimate speech as platforms seek to reduce this new risk. But in a decision Monday dismissing the case for lack of standing the district court basically declared that it couldn’t understand what everyone was so worked up over.

Standing has to do with who is entitled to file a lawsuit. Ordinarily you have to have suffered an actual injury, although in certain situations, such as constitutional challenges, parties can have standing if it is likely that they will suffer an injury. After all, we wouldn’t want people to have to expend resources needlessly in the effort to comply with an unconstitutional law, or have to risk prosecution in order to have its constitutionality tested before the courts. But the injury risk still needs to be reasonably likely.

Imminence, the element most relevant here, is concededly a somewhat elastic concept. Nevertheless, imminence “cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes ? that the injury is certainly impending.” [?] The concept of imminence has been particularly important in the context of pre-enforcement challenges. The Supreme Court has held that plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. A credible threat of prosecution exists when the challenged law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution. Thus, fear of prosecution cannot be “imaginary or wholly speculative,” and allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. [p. 15-16]

Yet here the court decided it was not.

It would be great if it were right, and no one had anything to fear. But while the court essentially declared the fears contorting the availability of online speech to be much ado about nothing, it didn’t do so in a way that would effectively allay those fears.

As the court ran through its analysis of the standing of each plaintiff, it struggled to see how what they proposed to do, and how what they feared would be chilled by the law, was targeted by the law.

[P]laintiffs say, FOSTA criminalizes “anything that promotes or facilitates prostitution, and not a specific crime.” This is particularly problematic because prostitution is an area where there has been significant advocacy, both by government entities and by private citizens. As plaintiffs see it, that advocacy places them in crosshairs. In pressing this argument, however, plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic of prostitution or sex work. [p. 22]

The above is some of what the court had to say about the lead plaintiff Woodhull Freedom Foundation. It concluded similarly for plaintiff Human Rights Watch. For plaintiff Jesse Maley a/k/a Alex Andrews, the creator and operator of an actual platform, ratethatrescue.org, it similarly minimized her concerns.

Under Maley’s reasoning, because providing housing or childcare services to sex workers “make[s] sex work easier,” Rate That Rescue could be said to promote or facilitate prostitution. For this reason, Maley fears that amendments to Section 230 – which clarify that immunity does not extend to conduct made unlawful by Section 2421A – could expose her to prosecution for the speech of third parties on Rate That Rescue. [?] Her concerns, however, are unwarranted. Put simply, Maley has failed to show that Section 230 amendments expose her to a credible threat of prosecution. That is so because Maley, on the current record, lacks the mens rea to violate any of the provisions specified in Section 230(c)(5). [?] In managing Rate That Rescue, Maley cannot possibly be said to act “with the intent to promote or facilitate the prostitution of another person” in violation of Section 2421A. Maley’s declaration concedes as much, repeatedly expressing concern that law enforcement could determine that “the user-generated content on Rate That Rescue promotes or facilitates prostitution.” But those formulations lack the critical mens rea element of the Section 2421A offense. Indeed, Maley herself does not even assert that law enforcement could credibly contend that, in managing Rate That Rescue, she acts “with the intent to promote or facilitate” the prostitution of another person. Of course, the mere promotion or facilitation of prostitution is not enough: Maley must intend that her conduct produce the specific result. [p. 25-26]

It’s a statutory parsing that would be a lot more assuring if it didn’t ignore another perfectly plausible read of the statute. Of course it’s ridiculous to say that Maley intended to promote prostitution. But that’s not what the statute forbids. In a subsequent passage the court dismisses the argument that FOSTA’s amendments to 18 U.S.C. Sec. 1591 create any additional legal risk for platforms. But the amendments expand the prohibition against the “participation in a venture” to engage in sex trafficking to include “knowingly assisting, supporting, or facilitating” such a venture. This language suggests that liability does not require knowledge of a specific act of sex trafficking. Instead, merely providing services to sex traffickers ? even ones unsuccessful in their sex trafficking venture ? would seem to trigger liability. In other words, knowledge seems to hinge not on knowledge of a sex trafficking act but on knowledge of a sex trafficking venture (including one that may even be victimless), yet both the statute and the court are silent as to how much, or how little, a platform would need to actually know in order to have “knowledge” for purposes of the statute. This vagueness is what is so chilling to them, because it forces them to guess conservatively. But the court provides little relief, and in dismissing the case denies the opportunity to even attempt to gain any.

Also, while these plaintiffs were suing because they feared prospective injury, plaintiff Eric Koszyk has already experienced a tangible injury directly traceable to the changes in the law wrought by FOSTA. He was a massage therapist who relied on Craigslist to advertise his services. In the wake of FOSTA, Craigslist shut down its Therapeutic Services section, thus limiting his ability to find customers. Without FOSTA (which would result if it were declared unconstitutional) it would seem that the shutdown decision could be reversed. But to the court this result would be too speculative:

Unfortunately for Koszyk, he cannot establish redressability under the relevant precedents. That is so because Koszyk has not established that a victory “will likely alleviate the particularized injury alleged.” It is well established that a plaintiff lacks standing when the “redress for its injury depends entirely on the occurrence of some other, future event made no more likely by its victory in court.” When, as here, a third party can exercise “broad and legitimate discretion the courts cannot presume either to control or to predict,” a court is generally unable to redress the alleged injury and, accordingly, standing is found wanting. [p. 27-28]

This is insanity. Of course the court can’t force Craigslist to re-open its Therapeutic Services section. But it can eliminate the reason for its closure and at least make the decision to re-open it possible. As long as FOSTA remains on the books it eliminates that possibility, and that’s an injury.

It didn’t go any better for the Internet Archive’s standing as a plaintiff. As a platform that handles a massive amount of third party created content, for which review would be impossible, it worried it could nonetheless be caught in FOSTA’s net. Don’t worry about it, said the court.

Although the Internet Archive represents that it does not intend to promote sex trafficking or prostitution, it believes that the Section 230 amendments 2 and the ambiguity of their scope may expose it to liability. Once again, however, there are no facts in the record supporting an inference of the mens rea standard necessary to peel back Section 230’s protections. The Internet Archive’s practice of sweeping up vast amounts of content from the web for indefinite storage, and its attested practical inability to review the legality of that third-party content, mean that that entity simply cannot meet the stringent mans rea standard required for liability under Sections 2421A, 1591, or 1595. [p. 28]

In a way, that sounds great. Don’t know what’s in all that user content? No problem. But the problem is, inevitably platforms are going to have some knowledge of what’s in all the user content. In fact, if Section 230 is going to work as intended to encourage platform moderation of content they are going to have to know. And, thanks to this decision, this knowledge remains a terrifying prospect for all.

It is likely that EFF will continue to press forward with this case, so it is not the final word on FOSTA’s constitutionality, but it is an unfortunate start.

Filed Under: constitutionality, eric koszyk, fosta, jesse maley, mens rea, sesta, standing
Companies: eff, internet archive, woodhull foundation

SESTA, FOSTA, And How To Make Sense Of The Acronym Soup

from the You-say-potato,-I-say-we-should-have-called-the-whole-thing-off dept

Here at Techdirt we’ve been slow to switch: so dug in were we for so long against the legislative scourge known as SESTA that we’ve been reluctant to call it anything else. Even after its ghastly provisions became law ? in some ways, because its ghastly provisions became law ? we’ve been reluctant to change what we called this vehicle of censoring doom. After all, we said for months that SESTA would be awful, and now here it is, being awful. If we called it something else people might be confused about what we had been complaining about.

The problem is, it’s not technically correct to continue to call this legislative outrage SESTA, and doing so threatens to create its own confusion. SESTA didn’t become law; FOSTA did. When we react to those legislative changes, and cite to their source, we are citing to the bill called FOSTA, not the bill called SESTA. SESTA itself no longer exists in legislative form ? FOSTA’s enactment mooted it ? and it’s confusing to complain about a law that isn’t actually one, or ever going to be one, because even if you can convince someone that it’s terrible, they’ll never be able to find in any law book what it is they should be upset about.

It’s FOSTA that now haunts us from the U.S. Code. But what’s confusing is that while FOSTA is the enacted legislation now hurting us, SESTA was the proposed bill we had warned would. All the legislative history is with SESTA (well, most of it anyway), but all the legislative power is with FOSTA.

So what happened? What’s up with the two names? Why the shift? Basically this:

SESTA was a terrible bill proposing to gut Section 230 that had been rumbling around the Senate for a while. There were some hearings and proposed amendments, but by and large it remained a bill full of terrible, Internet-ruining proposals. Eventually, when it looked like it might be picking up enough steam to pass, an alternate bill got floated in the House: FOSTA. It still played SESTA’s game, but it did so with different language that presumably would have resulted in something less Internet-ruining.

For what it’s worth, not everyone thought this was a great strategy. Some thought that it would be better to do nothing but try to nip the whole idea behind SESTA in the bud, but others thought it might be better to go with a “devil you know” strategy if passage of something seemed inevitable, because then hopefully it could at least be something a little less awful.

FOSTA was still pretty bad, although it had some hearings and amendments to try to make it less so. But then, all of a sudden, the legislative sausage-making machine went berserk and spit out something even worse. The result was a Frankenstein monster of a bill, still called FOSTA, which combined the worst of its own proposals with the worst of the SESTA bill percolating in the Senate. This new FOSTA bill soon passed the House, and shortly thereafter it’s the bill that passed the Senate. Notably it was not the original SESTA bill that the Senate voted on, because if the Senate had tried to pass anything different from what the House had passed the reconciliation process between the two bills might have delayed the ultimate passage of either. Perhaps that delay would have spared us this horror, but such a fate was not something the law’s Internet-undermining champions wanted to risk.

So here we are, stuck with this garbage on the books, legislation so awful it can’t even be labeled coherently. But giving name to something always makes it easier to fight. So from here on out, we’ll be calling it FOSTA.

Filed Under: fosta, laws, names, sesta

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

A FOSTA Of One's Own: UK Parliament Members Looking To Punish Websites, Push Traffickers Underground

from the FOSTA-Home-Secretary-is-not-a-position-that-needs-to-exist dept

Our government decided to make the internet worse, endanger the lives of sex workers, and make it harder for law enforcement to hunt down sex traffickers. And it was all done in the name of fighting sex trafficking. SESTA/FOSTA’s passage immediately contributed to all three problems upon passage, throwing sex workers under the bus along with Section 230 immunity. The upside for the government was obvious: it could now target websites and site owners, rather than sex traffickers, for grandstanding prosecutions.

Violet Blue reports for Engadget that the UK government — no stranger to terrible laws targeting the internet — is thinking about copy-pasting FOSTA for its own use. It would also like to do all the things listed above, only without the minimal restraint of the First Amendment.

A self-appointed group of MPs (the “All-Party Parliamentary Group on Prostitution and the Global Sex Trade”) fronted by Ms. Champion made a call to ban “prostitution websites” during a Wednesday House of Commons debate. Conflating sex work with trafficking just like their American counterparts, they claim websites where workers advertise and screen clients “directly and knowingly” profit from sex trafficking.

Watching British politicians advance something as broken and harmful as FOSTA-SESTA is like watching an animal try to chew its leg off to escape a trap — while we’re all standing outside the glass enclosure shouting “that’s the wrong leg!” Champion is apparently OK about the fact that they’re parroting Trump and FOSTA-SESTA; she’s even joked that it’s a special kind of irony. Indeed.

It’s not that sex trafficking doesn’t exist or shouldn’t be addressed. It’s that this “solution” does nothing to solve the problem. It only makes it worse. It drives traffickers underground, making law enforcement’s job that much more difficult. And it impairs the ability of sex workers — those who have chosen this line of work freely — to earn a living. It increases the dangers they face, especially when paired with increased criminalization of those purchasing sex.

The adoption of FOSTA as a blueprint for sex trafficking legislation also ignores the ugly truth about its support stateside. It’s not about sex trafficking. It’s about punishing those who are easiest to reach: websites and customers. That sex trafficking will hum along under the radar uninterrupted doesn’t phase supporters of this law. It’s enough that the government will publicly hang a few website owners for content posted by third parties.

It will be worse in the UK where a challenge along civil liberties lines is more likely to fail. UK speech laws are a mess and it’s unlikely opponents of the proposed law will find judicial relief from UK FOSTA knockoff. The lives the law endangers are of zero concern to a majority of politicians and the platform the law is built on — ending sex trafficking — is something very few feel comfortable taking a stand against.

Filed Under: censorship, fosta, intermediary liability, prostitution, sarah champion, sesta, trafficking, uk