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Jim Larkin, Backpage Exec, Dies By Suicide A Week Before His Trial

from the tragic-end dept

Some unfortunate news. AZ Central reported yesterday that James Larkin, who was a free speech pioneer who built an alt-weekly newspaper empire, and then spun out the controversial classifieds ads site Backpage, died by suicide, one week before his latest trial.

While there’s been plenty of discussion about Backpage, related to questions around Section 230, sex trafficking, and a variety of other things, much of the public perception about it is completely misleading. The actual details suggest that the media, prosecutors, and some politicians basically concocted an astoundingly misleading narrative about Larkin (and his partner Michael Lacey) and what they did at Backpage.

Larkin, going back to his days running the alt weekly New Times (which eventually took over the famed Village Voice) always believed in fighting strongly for his free speech rights, including getting arrested a decade and a half ago for going public about a bullshit subpoena they had received from then-sheriff Joe Arpaio.

As some actual reporting details regarding Backpage, contrary to the public story about how Backpage was actively encouraging and enabling sex trafficking, the company worked closely with law enforcement to help them track down and arrest those responsible for sex trafficking. They literally hired a former federal prosecutor who was on the board of NCMEC to help them stop anyone from using Backpage for trafficking. In an internal note by the DOJ (which the DOJ tried to hide from the trial), it was noted:

“unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations.”

However, where they drew the line was when law enforcement started demanding similar help in tracking down non-trafficking consensual sex work. Larkin (and Lacey) found that to go too far. From an excellent and thorough breakdown of the situation from Wired magazine (written by a former DOJ assistant US attorney):

Lacey and Larkin say they were more than willing to help crack down on child abuse. But the demands being made of them seemed increasingly unreasonable. Sex trafficking, defined as commercial sex involving coerced adults or anyone under 18, was one thing. Consensual sex work was quite another—and it wasn’t even illegal under federal law.

In March 2011, Lacey and Larkin flew to Virginia to meet with Allen. “To say that the meeting did not go well is an understatement,” Allen wrote later that day. After a full hour, he and Lacey “were still screaming at each other.” Allen demanded that Backpage do more to combat prostitution. Larkin said the site would enforce a “news­paper standard,” but Lacey added, “We are not Craigslist, and we aren’t going to succumb to pressure.” A Justice Department memo continues the story: “Allen responded that ‘At least you know what business you are in.’ ”

In short, contrary to the public narrative you may have heard, Backpage worked closely with federal law enforcement to actually stop sex trafficking (and not just take it down, but to track down the perpetrators). But they refused to do the same for consensual sex work and that is why the feds eventually came down on them like a ton of bricks, all while telling the media and politicians that it was for sex trafficking. But that was all bullshit.

And the bullshit extended to the process of the federal case against Larkin and Lacey, including when the defendants discovered an internal DOJ memo stating flat out that Backpage was helpful, rather than harmful, in the fight against sex trafficking. The DOJ successfully got the court to say that they couldn’t use that in their defense. Yes, this exonerating evidence was barred from use during the trial:

In 2012, Crisham and Swaminathan seemed impressed by how cooperative Backpage was with police and other members of law enforcement. Backpage data offer “a goldmine of information for investigators,” they noted. In general, staff would respond to subpoenas within the same day; “with respect to any child exploitation investigation, Backpage often provides records within the hour.” Staff regularly provided “live testimony at trial to authenticate the evidence against defendants who have utilized Backpage,” and the company held seminars for law enforcement on how to best work with Backpage staff and records.

“Witnesses have consistently testified that Backpage was making substantial efforts to prevent criminal conduct on its site, that it was coordinating efforts with law enforcement agencies and NCMEC [the National Center for Missing and Exploited Children], and that it was conducting its businesses in accordance with legal advice,” wrote Swaminathan and McNeil in 2013. Furthermore, they noted, their investigation failed “to uncover compelling evidence of criminal intent or a pattern or reckless conduct regarding minors.” In fact, it “revealed a strong economic incentive for Backpage to rid its site of juvenile prostitution.”

Ultimately, it was their assessment that “Backpage genuinely wanted to get child prostitution off of its site.”

Indeed, as the initial trial of Larkin and Lacey began, the judge actually had to order a mistrial, as the DOJ kept referring to child sex trafficking, even though nothing in the charges was about sex trafficking at all, let along child sex trafficking.

The new trial was set to begin next week, but for whatever reason Larkin chose to end his life rather than continue to be railroaded in this manner. I spoke with Larkin once a few years ago, and he seemed utterly perplexed by the awful situation he was in, noting that all he wanted to do was protect basic free speech principles, and couldn’t understand why he was being held up as a “sex trafficker” after everything he’d done to help law enforcement track down sex traffickers (going above and beyond basically every other site out there according to the DOJ themselves).

This is a sad and unfortunate end to his story.

I’ve always taken the stance that you can’t blame any third party for someone’s decision to take their own life, as we can never know all of the factors involved. But I do hope that some of the people who literally built up their own profiles by demonizing Backpage and Section 230 at least take a moment to reflect on whether or not they got so caught up in the narrative they wanted that they missed what was actually happening.

Filed Under: doj, free speech, james larkin, michael lacey, section 230, sex trafficking, sex work, suicide
Companies: backpage

DC Circuit Says FOSTA Is Perfectly Constitutional, Nothing To See Here

from the well-that's-bad dept

Back in January there was some hope that the panel of judges hearing the latest version of the challenge to FOSTA’s constitutionality had recognized the problems with the law. That’s because during oral arguments they seemed to express skepticism about its constitutionality, noting that it appeared to criminalize any efforts to legalize prostitution.

But as we’ve said many, many times, never get too worked up by how oral arguments go, because by the time the actual decision comes down, it may not reflect what was argued live. And that appears to be the case here, where on Friday, the DC Circuit appeals court said that FOSTA appears perfectly constitutional and there’s nothing wrong with the law.

We affirm. Neither Section 2421A of FOSTA nor FOSTA’s amendments to the Trafficking Act are overbroad or unconstitutionally vague. FOSTA’s clarification that Section 230 withholds immunity for violations of federal sex trafficking laws comports with the First Amendment. And the district court correctly dismissed the challenge to Section 230(e)(5)’s retroactive application.

This is a frustrating ruling in all sorts of ways, not the least for handwaving away the very real and very obvious harms to speech that FOSTA has already created, especially among sex workers, and beyond them as well. I mean, the court knows this and even admits that speech was stifled:

In response to FOSTA’s enactment, several online platforms removed content and deleted entire sections of their websites. Woodhull II, 948 F.3d at 368–369. For example, two days after Congress passed the Act, Craigslist eliminated all personal ads, including those in non-sexual categories, and named FOSTA as the reason for doing so. Other websites followed suit, and many blamed the Act’s broad criminal prohibitions and severe penalties. See COYOTE-RI, et al., Amicus Br. A. 15 (“FOSTA changes [liability] in a way that makes sites operated by small organizations * * * much riskier to operate. [The Act] essentially says that if we facilitate the prostitution of another person we’re liable. * * * [T]he problem is that ‘or facilitate’ is ill-defined.”).

The plaintiffs in this case similarly allege that FOSTA has chilled or halted their constitutionally protected speech. Plaintiff Woodhull Freedom Foundation is an advocacy organization that supports the health, safety, and protection of sex workers. Because of the Act, Woodhull has censored its publication of information that might, in its view, be considered to promote or facilitate sex work.

First up, the court looks at whether or not FOSTA’s change to the Trafficking Act, broadening the definition of “participating” in a traffickng venture, is too broad. This was part of what we kept calling out when FOSTA was being debated in Congress. By saying that “assisting” and “facilitating” can violate the law, you’re likely to sweep up all sorts of Constitutionally-protected speech.

You don’t have to go far to see examples of this. Sex workers have found that under FOSTA it’s much more difficult to find a site that will allow them to share information that keeps them safe — as it may be deemed assisting under the law. Sex workers helping keep each other safe by sharing tips and information should pretty clearly be Constitutionally protected.

Yet the panel of judges here says that everyone’s overreacting, because the law doesn’t actually criminalize this:

In sum, reading Section 1591(e)(4)’s definition of “participation in a venture” in light of its context and placement in the statutory scheme, the definition permissibly prohibits aiding and abetting a venture that one knows to be engaged in sex trafficking while knowingly benefiting from that venture. We thus hold that the provision does not have the expansive scope that Woodhull fears, but instead, proscribes only speech that falls within the traditional bounds of aiding-and-abetting liability, which is not a form of speech protected by the First Amendment…

Which is great in theory, but in reality it means that tons of companies refuse to host such speech so as to avoid the risk of a lawsuit (and we’ve seen plenty of frivolous lawsuits using FOSTA already).

The same is true regarding the part of FOSTA that talks about “promote or facilitate.” Again, the court insists there’s nothing to worry about here because, in context, they’re sure that the law means “aid and abet,” which would have much higher knowledge required. Of course, if Congress meant “promote or facilitate” to mean “aid and abet” they, you know, could have written that? But the court insists that’s really what Congress meant:

So when read within its traditional criminal law context, Section 2421A(a)’s prohibition on promoting the prostitution of another person proscribes owning, managing, or operating an online platform with the intent to recruit, solicit, or find a place of business for a sex worker—that is, to aid and abet prostitution…

There’s a lot of this kind of nitpicking, with the court insisting that Congress didn’t actually intend the language to mean what basically every company online has interpreted it to say.

And that seems like a problem.

I mean, in one sense, you could argue that the ruling is actually good for speech, because it’s basically saying “all the things companies are now afraid of because of this law aren’t actually violating the law.” So if companies agree with that and feel safer hosting this kind of speech again, that would be a good result. But… it’s also unlikely to actually play out that way. Because you have to believe that this DC Circuit ruling would be recognized by (1) tort lawyers who have been filing frivolous cases using FOSTA and (2) other circuits.

So, language like this is great… in a vacuum disconnected from reality:

We therefore hold that Section 2421A(a)’s mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse. Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution. Instead, it reaches a person’s intent to aid or abet the prostitution of another person. That reading also makes sense in a statute that targets prostitution alongside sex trafficking, and seeks to eradicate the use of online platforms when they contribute to sex work that is compelled by “force, fraud, and coercion[.]”

Will that language make companies comfortable hosting any of that speech? I somehow doubt it.

In many ways this whole ruling is strange like that. It’s basically saying that the very real chilling effects, which the court admits have occurred, were a mistake. But, you know, that’s the whole reason we had a broad Section 230 in the first place, so that websites don’t have to do this mental calculus of “if we host this kind of content, will we have to face a huge lawsuit over it?” And FOSTA directly ruins that for a broad category of speech.

And the court’s response is, effectively, “eh, well, it shouldn’t create any chilling effects, so just stop being afraid.”

Cold comfort.

Those parts above were about the modifications FOSTA made to trafficking law. What about the modifications to Section 230 directly? The panel of judges isn’t at all persuaded that’s a problem, using similar reasoning as above:

Woodhull argues that selective withdrawal of Section 230 immunity only for those who speak on disfavored subjects like the promotion of prostitution and sex trafficking violates the First Amendment. Once again, Woodhull’s argument fails.

To start, FOSTA does not criminalize promoting prostitution broadly. It only punishes aiding or abetting the “prostitution of another person,” which has a much narrower reach…

Then the court says (falsely) that the changes to 230 were only a clarification. Section 230 has always exempted federal criminal law, and the court says that here it’s just making it clear that also includes federal sex trafficking law:

Congress was explicit in FOSTA that Section 230’s immunity provision “was never intended to provide legal protection” to websites that unlawfully promote prostitution or assist traffickers, and accordingly determined that “clarification * * * [wa]s warranted to ensure that such section does not provide such protection to such websites.” 47 U.S.C. § 230 note. Congress amended Section 230 in response to the many court decisions immunizing websites hosting unlawful speech in a manner that was deemed to be contrary to Congress’s original design. See Woodhull II, 948 F.3d at 367– 368 (explaining that courts frequently held that Section 230 prevented liability for violations of federal law). So all FOSTA does is clarify and reinforce the prior exclusion of immunity within the specific context of sex trafficking, and explain that the limit on immunity extends to civil liability as well.

But… that’s wrong. 230 exempts federal criminal law. But not civil law. The examples given of “many court decisions immunizing websites hosting unlawful speech” are civil cases. And that’s important for a variety of reasons, including the different standards involved. And, again, we know this because we’re now seeing these frivolous civil cases being brought under FOSTA.

Anyway, this is an unfortunate result. It’s possible Woodhull will ask the Supreme Court to weigh in, and honestly under SCOTUS’ recent 303 Creative ruling, it seems pretty clear that Woodhull should win. But, the risk with that is that the Conservative wing of the Court seems a lot less likely to care about the 1st Amendment rights of sex workers as compared to a religious Christian woman pretending to want to start a business making wedding websites.

But, of course, the whole point of the 1st Amendment is that it’s supposed to protect everyone, not just the people Supreme Court Justices like.

Filed Under: 1st amendment, aiding and abeting, assisting, facilitating, fosta, section 230, sex trafficking, sex work, vagueness
Companies: woodhull foundation

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

Fri, Jan 27th 2023 10:48am - Karl Bode

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

John Oliver Explains How FOSTA (And Lots Of Other Policies To ‘Help’ Sex Work) Has Backfired Badly

from the john-oliver-the-resident-techdirt-tv-host dept

For not the first time, John Oliver is taking on topics we often cover at Techdirt, and doing a fantastic job of it. His latest show went deep on just how screwed up laws and law enforcement about sex work are, including a specific look at FOSTA.

The whole video is worth watching, and discusses how politicians, law enforcement, and sketchy “advocacy” groups repeatedly falsely try to conflate all sex work with sex trafficking. But, more importantly, it discusses how nearly all of the laws written about sex work and sex trafficking are done without talking to actual sex workers, and because of that it creates laws, such as FOSTA, that actually do a lot more harm than good, and often focus on punishing sex workers while pretending to “help” them.

The part on FOSTA doesn’t go that deep, but does make the key point (as we and others have been making for years) that (1) after insisting that FOSTA was “needed” the government basically never used it, and (2) that it actually has made it much, much, much more difficult for law enforcement to track down and arrest actual sex traffickers. In a clip I hadn’t seen before, Oliver shows a law enforcement official noting that Backpage used to work with law enforcement, but after it was shut down, overseas sites rushed in to fill the void, and none of them are willing to work with law enforcement at all.

Indeed, the episode provides even more support to leaked DOJ documents that showed that Backpage was actually a very helpful partner to law enforcement in helping to track down actual sex trafficking, but balked at… extending that to consensual sex work. In other words, the very point that Oliver tried to raise in this episode.

And, of course, as we see all of this, Congress still refuses to recognize how much harm that FOSTA has done and is, instead, still focused on passing a new law, the EARN IT Act, that is in many ways even worse than FOSTA.

Filed Under: earn it, fosta, john oliver, law enforcement, section 230, sex trafficking, sex work, sex workers

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

Mastercard Lays Down New Rules For Streaming Sites That Require Them To Review Content Before Publication

from the war-on-porn-continues dept

Mastercard is in the process of killing off another way for sex workers to make money. Its updated policy on “illegal adult content” takes aim at a bunch of adult content that isn’t actually illegal. What the new policy does is make it impossible for streaming platforms to comply with the new rules. Since they’re not able to prescreen streamed content, they’re just going to start blocking anything that seems like it might lead to Mastercard pulling the plug.

This will hit sites like OnlyFans and MyFreeCams the hardest, as sex worker/advocate Mary Moody points out. But it will also cause collateral damage at streaming sites that aren’t able to comply with Mastercard’s new demands and may start banning accounts and blocking streams if they suspect (without verifying) “adult content” might be offered.

Here’s what Mastercard is requiring from sites hosting content:

• Documented age and identity verification for all people depicted and those uploading the content
• Content review process prior to publication
• Complaint resolution process that addresses illegal or nonconsensual content within seven business days
• Appeals process allowing for any person depicted to request their content be removed

Some of these are steps that platforms should be taking already. But the second bullet point poses significant challenges. This “for the children” effort will harm adults who produce adult content — many who have never produced any content considered “illegal” under the First Amendment. Mastercard cites its partnership with several law enforcement agencies (as well as child porn clearinghouses like NCMEC) but doesn’t say why it feels all adult content should be subject to rules meant to prevent the streaming of illegal content.

In the absence of any meaningful efforts on Mastercard’s part (this puts the onus on everyone else but the credit card company), a statement like this is meaningless:

We’re committed to doing everything in our power to ensure only lawful activity takes place on our network.

But Mastercard isn’t actually doing anything. It’s handing out more requirements for platforms that accept Mastercard payments, but that’s not actually doing something. That’s making a bunch of other people jump through impossible hoops under the threat of defunding. And it will cause damage to plenty of lawful activity.

Mastercard is free to choose who it does business with. But if it just wants to dump cam sites used by sex workers, it could at least come out and say that, rather than hide behind “for the children” platitudes as it makes it impossible for sites like this to host actually legal content. This is just more anti-porn crusading that willfully lumps child porn and revenge porn in with legal content created by adults. Then Mastercard makes it impossible for platforms to comply without cutting off a majority of their user base.

Filed Under: infrastructure, payments, sex work, streaming sites
Companies: mastercard, onlyfans

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

Sex Workers Set Up Their Own Social Network In Response To FOSTA/SESTA; And Now It's Been Shut Down Due To FOSTA/SESTA

from the censorship-at-work dept

Just a few weeks ago we wrote about how a group of sex workers, in response to the passing of FOSTA/SESTA, had set up their own social network, called Switter, which was a Mastodon instance. As we noted in our post, doing so was unlikely to solve any of the problems of FOSTA/SESTA, because it’s perhaps even more likely that Switter itself would become a target of FOSTA/SESTA (remember, with FOSTA, the targeting goes beyond “sex trafficking” to all prostitution).

And, indeed, it appears I was not the only one to think so. The organization that created Switter, Assembly Four, put up a note saying that Cloudflare had shut down Switter claiming the site was in violation of its terms of service.

Cloudflare has been made aware that your site is in violation of our published Terms of Service. Pursuant to our published policy, Cloudflare will terminate service to your website.

Cloudflare will terminate your service for switter{.}at by disabling our authoritative DNS.

Assembly Four asked Cloudflare to clarify just what term it had violated and the company has now come out and noted that it reluctantly pulled the plug on Switter out of a fear that it would create criminal liability for Cloudflare under FOSTA/SESTA. Cloudflare was among the companies who lobbied against the bill, and they note that they disagree with the way the bill was drafted — but given the nature of the law, the company feels compelled to take this action:

?[Terminating service to Switter] is related to our attempts to understand FOSTA, which is a very bad law and a very dangerous precedent,? he told me in a phone conversation. ?We have been traditionally very open about what we do and our roles as an internet infrastructure company, and the steps we take to both comply with the law and our legal obligations?but also provide security and protection, let the internet flourish and support our goals of building a better internet.?

Remember, this was a site for sex workers to communicate with each other. It was purely a platform for speech. And it’s being shut down because of fears from the vague and poorly drafted FOSTA/SESTA bill. In other words, yet more confirmation that just as free speech experts predicted, FOSTA/SESTA would lead to outright suppression of speech.

I’ve seen some complaints on Twitter that Cloudflare should have stood up for Switter and not done this. I don’t think that’s reasonable. The penalties under FOSTA/SESTA are not just fines. It’s a criminal statute. It’s one thing to take a stand when you’re facing monetary damages or something of that nature. It’s something altogether different when you’re asking a company to stand up to criminal charges based on a law that is incredibly vague and broad, and for which there is no caselaw. Yes, it would be nice to have some companies push back and potentially help to invalidate the law as unconstitutional, but you can’t demand that of every company.

I am curious, though, how supporters of FOSTA/SESTA react to this. Do they not care that sex workers want to be able to communicate? Do they not care that social networks are being shut down over this? Do they not care about speech being suppressed?

Filed Under: cdn, censorship, fosta, sesta, sex work, social network, speech, switter
Companies: cloudflare, switter