trafficking – Techdirt (original) (raw)

Aylo’s Deferred Prosecution Agreement Will Make Pornhub A Much Safer Platform. Here’s Why.

from the corporate-responsibility dept

Aylo Holdings, the parent company of Pornhub and some of the largest free and premium porn sites in the world, agreed to a deferred prosecution agreement (DPA) to help resolve a Federal Bureau of Investigation probe into the platform’s conduct related to a sex trafficking scheme.

According to documents provided by the Department of Justice (DOJ), Aylo and its affiliates will be subject to an independent monitor for a total of three years. Aylo is also required to pay the U.S. government over $1.8 million in fines and must pay restitution and settle with the victims of the GirlsDoPorn sex trafficking scheme and any others.

After reviewing the 76-page deferred prosecution agreement, the compliance and independent monitoring provisions will augment the company’s already-overhauled trust and safety program that was implemented when ownership of Aylo changed hands to an ownership group of lawyers, former law enforcement executives, and criminal justice academics.

Consider the following, found throughout the deferred prosecution agreement:

The company (Aylo) represents that it has implemented and will continue to implement a compliance and ethics program throughout its operations, including those of its affiliates, agents and joint ventures, and those of its contractors and subcontractors. …

In order to address any deficiencies in its policies and procedures, the company represents that it has undertaken, and will continue to undertake in the future, in a manner consistent with all of its obligations under this agreement, a review of its existing policies and procedures regarding its compliance with federal criminal law relating to unlawful monetary transactions and other federal criminal offenses relating to content posted online. If necessary and appropriate, the company will adopt new or modify existing internal controls, policies, and procedures in order to ensure that the company maintains a system of internal controls and compliance codes, standards, and procedures designed to detect and deter violations of such laws.

The independent monitor must be approved by the Office of the Deputy Attorney General of the U.S. Department of Justice. Aylo has to retain the independent monitor for a period of three years from the execution of the deferred prosecution agreement. The company cannot be affiliated with the monitor or employ them for a period of two years after the DPA period ends. Basically, terms relating to the independent monitor are governed by regulations and guidance issued by the DOJ for companies and corporate entities charged with criminal activity, including unlawful financial enrichment. Aylo as an entity was charged with unlawful monetary transactions involving sex trafficking proceeds. The company admitted wrongdoing when it announced the DPA weeks ago.

Aylo published a press release on November 10 announcing the agreement between the company and U.S. federal prosecutors. Aylo explained, “We were troubled to learn that a production company used criminal means to produce its content and submitted consent documentation that we now know was obtained by fraud and coercion. … We are pleased that, after a thorough 30-month investigation, the government did not conclude that Aylo violated any federal criminal laws prohibiting sex trafficking. Aylo also did not engage in any illegal activities relating to material involving the sexual exploitation of minors or child pornography, and the government has not charged Aylo with doing so.” This is evidenced by the charge Aylo faces. However, the concept built into the DPA is meant to mitigate against the platform from intersecting with organized criminal activity in such a scope. In my own reporting on the GirlsDoPorn sex trafficking scheme, it was found GirlsDoPorn falsified records.

18 U.S. Code 2257 requires record-keeping for every single adult 18 years or older to be kept and maintained by studios through a custodian of records. Custodians of records are typically lawyers or experienced executives who’ve dealt with government compliance. It was revealed that the GirlsDoPorn sex trafficking scheme used fake identities for their custodians of records and retained records that were unlawfully amended or completely falsified. These actions carry significant criminal penalties.

Several years ago, Pornhub’s parent firm, known as MindGeek at the time, had what they call a content partnership with a now-defunct pornography studio called GirlsDoPorn and a network of premium related websites like GirlsDoToys and MomPOV. In 2019, it was revealed the company that owned these popular imprints was actually a front for an organized criminal enterprise that capitalized off of the heinous victimization and exploitation of dozens of women.

This revelation was a big deal in the industry, especially in the corners of the industry dealing with free and freemium content distribution. Michael Pratt, the ringleader of the GirlsDoPorn sex trafficking scheme, quickly fled and was placed on the FBI’s Most Wanted List. In 2022, he was arrested while hiding out in Spain and is awaiting extradition to the US.

Anti-pornography campaigners saw this as a systemic issue across the entirety of the industry. The vast majority of the adult industry wants to show industry outsiders – including critics who want to censor and completely outlaw content that is overwhelmingly legal, consensual, and protected by the First Amendment – that a few criminals don’t define the whole sector. Tube sites, such as Pornhub, are extremely controversial in the adult entertainment industry. Until recently (a few years ago), Pornhub and its sister tube sites (RedTube, YouPorn, and the defunct Keezmovies) were rife with content uploaded by unverified users, copyright infringers, and the sites were full of content that was exploitative, criminal, and downright horrendous to human eyes.

In December 2020, Nicholas Kristof of the New York Times published his “The Children of Pornhub” column. That Kristof column was used by many to justify claims that the entire industry was engaging in illegal behavior. The New Republic staff writer Melissa Gira Grant published a few days later a column entitled “Nick Kristof and the Holy War on Pornhub.”

Grant explained that Kritof’s column failed to differentiate between unlawful activity and lawful activity, referring to another anti-porn activist named Laila Mickelwait. Mickelwait “has said porn is a root cause of sex trafficking, which it isn’t. For years, porn performers have tried to draw attention to the exploitation at the heart of the tube site business model—YouTube clones, which now dominate an online porn ecosystem that, not long ago and like much of online media, once offered independent creators more control over their work,” Grant writes.

There is a clear distinction between legal and consensually produced pornographic materials and the illegal material that a criminal enterprise like GirlsDoPorn produced and profited from. It is a very ugly truth that Pornhub, under previous ownership, turned a blind eye to the activity of Pratt and his associates. However, there has been a significant change that these anti-pornography campaigners continue to overlook and dismiss.

Even though the criminal elements in this case were excised like a malignant tumor, Pornhub and its affiliated properties are now setup to prevent a repeat of that activity. In fact, this has been a key focus ever since the Kristof fallout. Shortly after Kristof’s column, they removed unverified uploads on the platform – millions of photos and images. They started reporting to the National Center for Missing and Exploited Children (NCMEC) and the organization’s CyberTipline. With Aylo’s porn platforms in the past few years, they started reporting voluntarily to CyberTipline. Aylo supports the NCMEC’s TakeItDown program, which allows minors and adults who are the victims of image-based sexual abuse to work with the center and law enforcement anonymously to remove the non-consensual material. The site is also a sponsor of StopNCII.org, which is a similar tool that caters to removing non-consensual intimate imagery (NCII). They also go as far as openly supporting sex workers’ rights and reform in porn.

Some evidence of Aylo’s reform efforts can be actually be seen in the filings of the New Mexico Attorney General Raúl Torrez. He recently sued Meta Platforms, the parent company of Facebook and Instagram, for widespread child sexual abuse material and exploitation. In a filing with a federal district court, Torrez says that Pornhub and OnlyFans do more to curtail child sexual abuse material than the most popular social networks in the world. Detractors of the online pornography industry will not recognize this, though, because they are still obsessed with censoring legal material that is, in fact, protected by the First Amendment. What troubles me most is the fact that anti-pornography campaigners simply target a singular brand. There are platforms that are much worse than Pornhub and lack the overhauled trust and safety program that Aylo has instilled.

Michael McGrady covers the legal and tech side of the online porn business, among other topics. He is the politics and legal contributing editor for AVN.com.

Filed Under: adult content, deferred prosecution agreement, doj, porn, trafficking
Companies: aylo, girlsdoporn, mindgeek, pornhub

Appeals Court Tosses Another Dumb FOSTA Lawsuit Against Twitter

from the not-today-fosta dept

Over the last few years we’ve covered a number of different very, very questionable civil lawsuits brought against internet companies under FOSTA. We had predicted that there would be these vexatious lawsuits, looking to hold companies liable in a sort of cash grab, where people would just go after the companies with the deeper pockets, rather than whoever was actually responsible for whatever bad thing had happened.

In the most egregious version of this, such cases took the form of the lawsuits against sites like Salesforce.com and Mailchimp because Backpage had used those services. However, there were also a series of cases that involved at least some (often very tragic) examples of actual victims of trafficking, in which the trafficker themselves appeared to use an internet service as part of their trafficking effort. Notable cases on this front were filed against Reddit, Twitter, and Craigslist, among others.

These lawsuits actually do a really good job of demonstrating why Section 230 is so important in the first place, and why FOSTA is so problematic. Because, as we’ve explained over and and over and over again, all Section 230 really does is help get vexatious, mistargeted lawsuits kicked out an earlier stage. Even without 230, any such lawsuit would be required, under the 1st Amendment, to show that the services in question had actual knowledge of the illegal activity. And that is not happening. So, the removal of 230 only serves to extend the time and cost of these lawsuits.

But, of course, because there’s a “new” law, and that new law created a “new” exemption from Section 230, courts still needed to figure all this out, and there was a very legitimate concern that the courts would mess this up.

Last year, we wrote about how the 9th Circuit had rejected the case against Reddit, noting again, that just because someone used the site, apparently as part of a trafficking effort, without any evidence that Reddit was actively involved in the trafficking, there could be no sustainable claim against the company. Specifically, the court (correctly!) recognized that you have knowingly participate in a sex trafficking venture.

The separate case against Twitter actually drew a lot more (often somewhat unhinged) attention, with people (falsely) insisting that it showed that Twitter was ignoring trafficking happening on its platforms, for which there remains little evidence (though, that may have changed under new management).

In the case against Twitter, the district court threw out most of the claims, noting that Twitter did not actually participate in the trafficking of the John Doe plaintiffs, and also that Section 230 did protect Twitter against claims that Twitter hosted child sexual abuse material (CSAM) involving the plaintiffs. However, it did say that, under FOSTA, claim 2 in the complaint, regarding “facilitating” trafficking, which was carved out of Section 230 by FOSTA, could continue to move forward — which is what Twitter was appealing to the 9th Circuit. The lower court noted that, because of FOSTA, Twitter could potentially (not definitely) be held liable.

When FOSTA was being debated, we spent a fair bit of time talking about how broad the language of “facilitating” was and how it would lead to frivolous lawsuits like this.

Anyway, the 9th Circuit has now affirmed the counts that the lower court tossed out and reversed the lower court keeping alive claim 2, saying that based on its ruling in the Reddit case, nothing was presented in the case suggesting that Twitter was an active, knowing participant in the trafficking activity. Therefore, the FOSTA claim fails.

With respect to Count 2, the legal standard applicable to that issue has now been decided by Jane Does 1–6 v. Reddit, Inc., 51 F.4th 1137 (9th Cir. 2022), petition for cert. filed, — U.S.L.W. — (U.S. Jan. 25, 2023) (No. 22-695). Reddit answered the first certified question in the affirmative: “[F]or a plaintiff to invoke FOSTA’s immunity exception, she must plausibly allege that the website’s own conduct violated section 1591.” 51 F.4th at 1141. Reddit answered the second question in the negative: “In a sex trafficking beneficiary suit against a defendant-website, the most important component is the defendant website’s own conduct—its ‘participation in the venture.’” Id. at 1142. “A complaint against a website that merely alleges trafficking by the website’s users—without the participation of the website—would not survive.” Id. The term “‘[p]articipation in a venture,’ in turn, is defined as ‘knowingly assisting, supporting, or facilitating’ sex trafficking activities. [18 U.S.C.] § 1591(e)(4). Accordingly, establishing criminal liability requires that a defendant knowingly benefit from knowingly participating in child sex trafficking.” Id. at 1145. Reddit therefore requires a more active degree of “participation in the venture” than a “continuous business relationship” between a platform and its users. Because these questions certified for interlocutory appeal are controlled by Reddit, the district court’s contrary holding is reversed.

In other words, no, the 9th Circuit isn’t going to allow frivolous FOSTA cases that try to hold websites liable just because a website was used in the course of trafficking, without the active knowledge of the platform.

Of course, because of FOSTA, these cases still have to go on much longer and cost more than if Section 230 just protected the websites in the first place.

That said, the 9th Circuit notes that with the Supreme Court examining Section 230 for the first time, all of this is subject to change.

But, still, this case similarly demonstrates why the Supreme Court changing 230 could make things much, much worse, as it would likely lead to a lot more of these frivolous lawsuits, of tangential connections to actual trafficking, rather than going after the actual traffickers, all in the hopes of cashing in from a company with deeper pockets.

As for the other claims that the lower court had already rejected? Again, the 9th Circuit rejects them as well. You can’t just magically blame a website for trafficking when they had nothing to do with the actual trafficking. That’s not how any of this works:

Regarding Count 1, the district court correctly ruled that Plaintiffs failed to state a claim for direct sex trafficking liability under the TVPRA, 18 U.S.C. §§ 1591(a)(1) and 1595(a). Section 1591(a)(1) creates a direct liability claim for “[w]hoever knowingly … recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person.” 18 U.S.C. § 1591(a)(1) (emphasis added).1 Because Plaintiffs nowhere allege in their complaint that Twitter “provided,” “obtained,” or “maintained” a person, the district court correctly concluded that Twitter’s alleged conduct relates only to CSAM depicting Plaintiffs, not to their persons (as required to implicate a direct violation of the TVPRA).

Finally, as to Count 4, the district court correctly ruled that section 230 precluded Plaintiffs from stating a viable claim for possession and distribution of child pornography under 18 U.S.C. §§ 2252A and 2255. Because the complaint targets “activity that can be boiled down to deciding whether to exclude material that third parties seek to post online,” such activity “is perforce immune under section 230.” Roommates.Com, 521 F.3d at 1170–71. And although section 230(e)(1) exempts from immunity the enforcement of criminal laws under Chapter 110 of Title 18 (which contains sections 2252A and 2255), our court has “consistently held that § 230(e)(1)’s limitation on § 230 immunity extends only to criminal prosecutions, and not to civil actions based on criminal statutes.” Gonzalez v. Google, LLC, 2 F.4th 871, 890 (9th Cir. 2021), cert. granted, 143 S. Ct. 80–81 (Mem) (U.S. Oct 3, 2022) (Nos. 21-1333, 21-1496)

I know how much people want to blame websites for bad people using them, but, as always, you should focus your anger on the actual people to blame: the bad people who broke the law, not the websites they may have used to do so.

Filed Under: fosta, section 230, trafficking
Companies: twitter

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

from the seems-odd dept

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

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

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

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

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

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

And then there’s this:

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

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

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

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

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

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

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

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

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

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

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

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

Law Enforcement, Social Media Users Turn An Act Of Kindness Into A Human Trafficking Investigation

from the some-people-are-just-the-worst dept

With enough self-delusion, any act of humanity can be considered a criminal act. It works for cops. It also works for the general public. When you’re a suspicious busybody with an overactive imagination and too much time on your hands, you can waste everyone’s tax dollars by panicking.

A Walmart employ, who is apparently convinced human trafficking is as common as the common cold, decided to get law enforcement involved, resulting in this message from the Coshocton (OH) County Sheriff’s Office:

On 2/15/2021 the Sheriff’s Office received a call from the Walmart Security Department in regards to suspicious activity in their parking lot involving a vehicle and two, what appear to be, males looking into vehicles and placing a single red rose under the windshield wipers of those vehicles. While reviewing the Walmart Surveillance Cameras, the two unknown males are seen exiting from, what appears to be, a newer style dark gray Ford Explorer, or similar looking vehicle, with chrome rims and side mirrors and placing a single red rose on it. This same sequence occurs multiple times on several vehicles that are parked on the outskirts of the parking lot. The males then get back into the vehicle and leave the area. Although there have been several Facebook posts of similar instances that have happened in Ohio regarding Human Trafficking related techniques, it is unclear at this time if this incident is related to such type of crime.

Pay attention to the last sentence and mourn with me over the state of online discourse. “Several Facebook posts of similar instances… regarding Human Trafficking related techniques.” Oh wow. Maybe Facebook shouldn’t be considered a trustworthy source of information about “Human Trafficking related techniques.” Perhaps Google might provide a more, better informed perspective on the red rose=human trafficking assumption.

Here’s a 2019 Snopes post detailing (and debunking) another stupid panic originating from Kentucky. A photo of a long-stemmed red rose slid into a car’s door handle was accompanied by something even writers for Law & Order: SVU would find too far-fetched:

“There have been recent incidents in Northern Kentucky about sex traffickers leaving roses on victim’s [sic] cars. The roses have a chemical on them to make you pass out, so they can grab you. One incident happened in the Walmart parking lot in Florence, KY! Please be careful, ladies!”

The photo used by this Facebook user dates back to 2014. And the original post containing it said nothing about human trafficking. Instead, it was captioned with nothing more than a bunch of words some people might have mistakenly believed were insightful or original.

“Growth is Not Pretty”

This was local law enforcement’s response to Snopes’ queries:

“This is completely unfounded and has been floating around for quite a long time. There have been zero incidents anywhere in Florence, or anywhere else that I have heard, of anything remotely related to this.”

But maybe the Kentucky cops were wrong. Let’s scroll through a few more search results…

Here’s another fact check from September 2020, roughly a year after the Snopes debunking, deflating yet another social media panic attack dealing with roses on cars. In this case, the roses were placed under the windshield wiper.

The viral copy and paste warning is the latest in a never ending stream of baseless, alarmist, and panicked posts that claims to describe the latest and trending method used by kidnappers or sex traffickers to kidnap vulnerable females.

The warning joins a countless number of other equally spurious warnings including the plastic bottle in the wheelwell warning, the zip tie on side mirror warning, the drug laced business card warning, the paper or $100 bill on the windshield warning and the baby car seat on the side of the road warning.

Anything that looks a little strange — but is otherwise explainable without having to conjure up waking nightmares involving swarthy men and helpless (presumably white) minors — tends to turn into a OMG SEX TRAFFICKING when handed over to excitable social media users.

Hey, falsely reporting a crime is [wait for it] a crime. And yet, these people never seem to get charged with anything, no matter how many law enforcement resources are wasted. If there are no consequences, there’s no deterrent.

One more time for the people in back who are still insisting on getting their news from internet randos:

“My mom just informed me that a new human trafficking thing that is being done is putting zip ties on girls’ [mirrors on their car doors] when they see that they are alone so when the girl comes back to her car [she is] distracted trying to take it off then they come up behind [her] and take [her],” TikTok user @ohokaygirl said in a video now deleted from the platform. “If you see one of these on your car door, please get in your car, lock your doors, roll up your windows and drive away immediately.”

Following the spread of a similar social media post last year, the San Angelo Police Department in Texas made a statement dispelling the rumor, assuring area residents that neither it nor the Angelo State University Police Department had received any reports of zip ties on cars, lamp posts, houses, apartments or fences.

Here’s another law enforcement response to a similar bout of hysteria:

Michigan State Police are warning about misinformation on social media. You may have seen the viral post warning about a zip tie sex trafficking trap.

It all started with a photo of a car on Facebook with a zip tie around the side mirror.

“It’s essentially like an urban legend or a scare-lore. The whole idea of the intent is just to scare people,” said Lt. Brian Oleksyk.

Oleksyk says sex traffickers are not leaving zip ties on cars.

“There’ve been other hoaxes that have been proven false like a flannel shirt on a windshield of a car or a specific parking lot of a shopping mall is grounds for sex-trafficking,” said Oleksyk.

Oleksyk says sex traffickers aren’t warning victims at all.

Everything is cyclical, including panics based on nothing more than someone seeing something unusual and deciding it must be something nefarious.

Here are the facts behind the Ohio human trafficking panic — one unfortunately obliged by local law enforcement. But before we get to the details, let’s examine the rest of the Sheriff’s statement:

After contacting surrounding Law Enforcement Agencies, this type of incident involving flowers being left on vehicles has not been reported to their Agencies.

This is the law enforcement version of Google. And I would normally applaud doing due diligence, but…

This incident is being treated as suspicious at this time.

Well, neverfuckingmind.

Here’s what really happened:

Brittaney Strupe had a fantastic Valentine’s Day weekend.

She got engaged and had plenty of leftover red roses to show for it.

“I think (my fiancé) ended up saying that he spent over $300 in just roses,” Strupe said. “He was just going to throw them outside or in the trash, so I told him, instead of wasting, we should pass it on.”

So Strupe enlisted the help of her sister and daughter, and the trio headed out to spread some love, by placing roses on vehicles.

Strupe’s daughter, Kiara, had the idea of going to a place where the group could find a lot of vehicles.

“We should just go to Walmart, thinking like, oh yeah, this will be a good idea, people are going to come out and think it’s awesome, and that didn’t happen,” Kiara Strupe said.

It certainly did not. And the initial report from Walmart — one involving its surveillance cameras — said something about two males when it was actually two females. This detail, that eluded the sharp eyes of Walmart employees, might have ended this before it began. But it didn’t. And we’re left with this unfortunate chain of events.

Welcome to the law enforcement version of America: no good deed goes uninvestigated, if not actually unpunished. An investigation was opened as calls “started coming in,” according to Deputy Chris Johnson, who participated in the needless investigation. But it turned out to be nothing, which is where it started several hours and several hundred tax dollars earlier.

Here’s the update from the Sheriff’s Department:

After investigation of the Walmart rose incident and as a result of getting this information out to the fine citizens of Coshocton County, we are pleased to announce that the case has been solved and is in no way related to Human Trafficking in our county. A resident of the county called to inform us that they were the ones responsible for the incident and only had good, harmless intentions in mind. They had received the flowers as a Valentine’s Day gift and instead of throwing them way after beginning to wilt, they decided to pass on the love by leaving them for someone else to enjoy. They never meant to alarm anyone or cause any panic in our community.

This sounds great, but the Sheriff’s Department genuinely wants people to remain alarmed/panicked.

Deputy Johnson also agreed that the community should keep up the good deeds. But he added that it is very important for everyone to be vigilant and aware of their surroundings. He advises people to follow their guts and to not hesitate to call law enforcement about something suspicious.

[heavy sigh] Look, we do need vigilance to keep people safe. But we also need some cooler heads — especially heads being paid with tax dollars — to stop encouraging people to engage in fantastical conspiracy theories just because they saw something they hadn’t seen before. This may have resolved itself quickly and mostly quietly, but adding law enforcement to wild-ass suppositions is just a good way to get people hurt, killed, or at least temporarily robbed of several freedoms.

And, if you’d like some irony sprinkled on top of this social media/Sheriff’s Department shit sandwich, there’s this:

Every Friday night, volunteers with Out of Darkness drive the streets. They offer roses to the women for sale in our city. It’s free of charge. It’s a way out.

“I need to take care of my business and get myself together,” one woman told them.

“Don’t feel like you need to get everything together, because none of us have it all together,” a volunteer responded.

The rose comes with a hotline number — (404) 941-6024 — and a promise: if they call, someone will pick them up any time, day or night.

The program has rescued more than 500 women from forced prostitution in the past nine years. While some of them go back, 60% of the women move on to a meaningful life outside of sex trafficking. That’s double the national average for programs that do the same thing around the country.

LOL

So — using the same logic that determined this to be a sex trafficking operation — this spreading of roses could have been an anti-sex trafficking operation.

In the end, I’m glad no one was harmed. But it easily could have gone another way. The Sheriff Department’s decision to feed an echo chamber a statement that erred on the side of uninformed statements rather than caution didn’t help anything. People do need to be aware of things that are happening around them. But they shouldn’t end that awareness once they’ve reached a conclusion that isn’t supported by information only a few clicks away.

Filed Under: cars, ohio, overreacting, panic, police, roses, trafficking

Court Tosses Surreptitious Video Recordings Holding Together Sketchy 'Human Trafficking' Investigation

from the ringing-up-investigators-on-solicitation-charges-for-fucking-themselves dept

In early 2019, law enforcement in Florida wrapped up a supposed “human trafficking” sting centering on Florida spas and massage parlors. By the time prosecutors and cops were done congratulating themselves for helping purge Florida of human trafficking, they appeared to have little more than about 150 bog-standard solicitation and prostitution arrests.

But they did land a big fish. Robert Kraft — the owner of the New England Patriots — was one of the spa customers caught up in the sting. That was the biggest news. Evidence of actual trafficking never appeared, leaving law enforcement with a big name, a bunch of low-level arrests, and little else.

What little law enforcement and prosecutors did have is now gone as well. Upholding a lower court’s decision on video evidence captured by hidden cameras, a Florida state appeals court says everything captured on the government’s secret cameras was illegally obtained. (via FourthAmendment.com)

This conclusion was reached even though investigators obtained warrants for the cameras. Here’s the backstory on the video recordings, taken from the decision [PDF]:

The Jupiter detective then applied for a warrant to install secret, non-audio video cameras in the spa and to monitor and record the video. A magistrate issued a warrant allowing police to install hidden cameras at the spa in places where prostitution was believed to be occurring and in the lobby. The warrant prohibited cameras in areas where prostitution was not suspected, such as the kitchen, bathroom, and personal bedrooms.

The warrant allowed non-audio video recording for no more than five days to obtain evidence of prostitution and the felony offense of deriving support from the proceeds of prostitution. The warrant did not discuss or otherwise direct any police conduct related to “minimization,” and the detectives were not given any type of formal written instructions about how to minimize.

Using a phony bomb threat to clear the building, police installed hidden cameras in four of the spa’s massage rooms and in the lobby. Three detectives monitored and recorded video from the hidden cameras over five days. The cameras recorded video continuously, but Jupiter detectives monitored the video feeds only during business hours.

The detectives toggled between the video feeds when they displayed or when they thought they might soon display criminal conduct. They focused on the end of the massages because the sexual conduct typically occurred at the end. In all, police recorded 25 spa customers pay for sexual services. Ten more customers were suspected to have paid for sex, but the offenses could not be confirmed due to dim lighting. Four customers, including two women, were recorded who did not engage in illegal activity.

The same thing happened in other locations. Cameras were surreptitiously installed and monitored by other law enforcement agencies. Technical limitations and hardware glitches resulted in some legal massages being recorded along with those involving sexual acts. In total, multiple spas were surveilled for more than 60 days. While some effort was made to minimize the recording of legal acts or activities not related to possible prostitution and solicitation, this didn’t appear to be much of a concern to investigators.

That led to the lower court throwing out the evidence because officers and investigators did not make enough of an effort to minimize intrusion or avoid recording activities outside of the scope of the warrants. The state appealed, claiming three things:

First, it said none of the defendants had any expectation of privacy in their activities at the massage parlors. It also claimed the Fourth Amendment does not contain a “minimization” requirement. Finally, the state argued even if it was wrong about its two previous arguments, investigators should be awarded “good faith” for not knowing any better.

Wrong, says the court. Of course the defendants have standing. The expectation of privacy doesn’t disappear just because they’ve stepped out of their own homes and into a massage parlor.

The spa-client defendants in all of these cases had a subjective and objectively reasonable expectation of privacy in the massage parlor rooms. The surveillance took place in a professional private setting where clients are expected to partially or fully disrobe. The spa owners and their employees also had a reasonable right to expect that the interactions with nude or partially nude clients in the massage rooms would not be exposed to the public. As soon as the door to the massage room was closed, they had a reasonable expectation of privacy.

The court also dispenses with one of the state’s more ridiculous arguments: that the people caught on tape engaging in criminal activities had no expectation of privacy because they were engaging in criminal activity.

The state also argues that the spas were primarily used as a brothel, as most of the customers who were recorded and monitored engaged in unlawful activity, and thus, the state asserts, the defendants cannot rely on the Fourth Amendment rights of third parties who had their innocent conduct recorded. However, as case law shows us, Fourth Amendment rights are nearly always safeguarded by those who are criminally prosecuted. […] Consequently, the state’s circular argument that the defendants lacked a privacy interest because they were engaging in criminal behavior is uncompelling.

The state’s assertion that the Fourth Amendment contains no minimization requirements is correct as far as the plain text is concerned. But jurisprudence has developed quite a bit since 1789, when video surveillance was nonexistent and unimaginable.

[T]he Tenth Circuit adopted “five requirements for video surveillance that define more specifically the probable cause and particularity requirements of the fourth amendment,” and which requirements expressly include the minimization requirement: An order permitting video surveillance shall not be issued unless: (1) there has been a showing that probable cause exists that a particular person is committing, has committed, or is about to commit a crime; (2) the order particularly describes the place to be searched and the things to be seized in accordance with the fourth amendment; (3) the order is sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation…

The warrants obtained in this investigation are faulty because they ignored this crucial prerequisite for video surveillance of private places.

The warrants at issue did not set forth any specific written parameters to minimize the recording of innocent massage seekers, and law enforcement did not actually employ sufficient minimization techniques when monitoring the video or deciding what to record. In all the investigations, some innocent spa goers were video recorded and monitored undressed. There was no suggestion or probable cause to believe that female spa clients were receiving sexual services, yet law enforcement largely failed to take the most reasonable, basic, and obvious minimization technique, which was simply to not monitor or record female spa clients.

This is exceptionally careless given the technology involved.

The most egregious example is the investigation by the Vero Beach Police Department in the Freels case where the cameras recorded continuously for 60 days. Thirty days’ worth of unmonitored recordings remain in the police department’s possession in that case. Other innocent spa clients may have been recorded nude – or partially undressed – on those days. Those innocent clients potentially live with the knowledge that nude videos of themselves are preserved on a server somewhere with unknown accessibility. In our ever increasingly digital world filled with hackers and the like, such awareness renders the surveillance a particularly severe infringement on privacy.

There’s no good faith here either. Video surveillance has been around for decades. Investigators can’t just ignore long-standing policies and court precedent and expect their “errors” to be treated as inadvertent.

We cannot conclude here that the law enforcement agencies acted in good faith with respect to minimization due to the lack of Florida law on point. The warrant applications themselves cited the decades-old federal law (such as Mesa-Rincon) setting out the requirements for obtaining a warrant to conduct secret video surveillance in private locations, including the need to minimize the recording of innocent conduct. These citations negate a finding of ignorance of minimization requirements.

Your ignorance, stupidity, and haste is your own fault, the court says to the state. Everything you had is gone because law enforcement decided to ignore years of well developed jurisprudence to engage in a human trafficking investigation that has yet to uncover any human traffickers.

The federal case law cited herein pertaining to silent video surveillance is well reasoned and widely accepted. Consequently, we must hold—as every federal circuit court and state court to consider the question has— that this type of intrusive, covert video surveillance is subject to heightened standards and procedures designed to implement Fourth Amendment protections, particularly in the face of the constantly expanding use of electronic surveillance techniques by law enforcement. And where the government fails to faithfully follow these standards and procedures, it will be held to account by the exclusion of the evidence obtained. The Fourth Amendment demands no less under these circumstances.

The Fourth Amendment makes demands of law enforcement. This isn’t a new thing. It’s been there since these two entities began their uneasy coexistence. But far too often, law enforcement is unwilling to uphold its end of the bargain. And let’s not lose sight of what actually happened here, which goes beyond the multiple rights violations: cops deployed the video equivalent of wiretaps to catch sex workers and their customers. This sort of intrusion is supposed to be reserved for only the most serious of crimes and the most dangerous of criminals, as the concurrence points out:

The authorization of electronic or video surveillance for petty crimes as a steppingstone in an effort to investigate more serious offenses would make a mockery of the designated crime requirement. Such a subterfuge would violate the princip[le] that continuous invasions of privacy must be reserved for occasions when the need to do so was critical. . . . Florida law provides no basis for seeking a warrant for electronic eavesdropping of conversations in a misdemeanor prostitution case, and there is no reason to believe that either the legislature or judiciary would want to permit such warrants when intrusive video surveillance is at issue.

And this is yet another reason why the surveillance in this case was unlawful: there’s no Florida law that permits it.

Neither the Florida statutes, nor case law authorize covert audio surveillance to investigate prostitution-related offenses. It follows that the more intrusive video surveillance is also prohibited, providing yet another basis for affirmance.

All the state has now is a bunch of petty charges it may not be able to make stick without these surreptitious recordings. If cops were really trying to break up a trafficking ring, they have failed miserably and put potential victims right back into harm’s way. If investigators and cops were just looking to hassle some minorities and get a few handjobs on the clock, well, then this operation was still a success.

Filed Under: 4th amendment, evidence, florida, massage parlor, robert kraft, 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

Could The DOJ Be Violating SESTA/FOSTA?

from the quite-possible dept

Last week, Gizmodo’s Dell Cameron has a great report on how the DOJ’s Amber Alert site was configured so stupidly that it could be used to redirect people to any website (this was also true of weather.gov and the National Oceanic and Atmospheric Administration). And it was being used. To redirect people to hardcore porn. Basically, the sites were designed such that just by knowing the right URL and adding a new URL to the end, it would redirect to those sites. Porn sites used this for a couple of reasons: first, since they’d now be getting referrals from high ranking sites, it can help their Google ranking. Second, because the primary URL would come from a trusted source again, it would help their Google ranking. And, finally, the links may look much more legit to people doing searches (though that would be more true of scam sites than porn sites).

Redirect scripts like this used to be fairly common, but they died off long ago. Except in the federal government. From Cameron’s article:

?This is like the 1990s called and wants its vulnerable redirect script back,? said Adriel Desautels, founder of the penetration testing firm Netragard.

But, here’s the thing: does this mean that the DOJ (and the NOAA) could be violating SESTA/FOSTA? It’s possible! And that just goes to show how poorly drafted the law is. Remember, under the law, it is now illegal to “participate in a venture” that “knowingly” is “assisting, supporting, or facilitating” a violation of sex trafficking laws. So, if someone were to create a DOJ Amber Alert redirect to a sex trafficking website (or just an escort site, since people keep insisting those serve little purpose other than sex trafficking) would the DOJ be in violation?

The obvious response is that the DOJ isn’t “knowingly” doing this. But… is that true? As Cameron’s article notes, every time you hit one of those Amber Alert redirects, the DOJ gives you a nice little parting message:

Is that enough to “knowingly” participate? Maybe. I would bet that if non-governmental websites popped up similar messages, SESTA/FOSTA supporters would argue it’s proof of knowledge. After all, Rep. Cathy McMorris Rodgers claimied that merely “turning a blind eye” was enough to prove “knowledge.” And here, clearly, the DOJ must be logging those exit pages. Is it ignoring them? Is that turning a blind eye? Does that count as knowledge?

Maybe it’s a stretch, but the fact that the language of the bill even makes this a possibility just demonstrates how poorly drafted the bill is, and shame on all the politicians who refused to step up and fix it.

Filed Under: doj, fosta, intermediary liability, porn, prostitution, redirects, sesta, trafficking, unintended consequences

The Senate Is Close To Undermining The Internet By Pretending To 'Protect' The Children

from the 230-matters dept

Protecting children from harm is a laudable goal. But, as we’ve noted for many years, grandstanding politicians have a fairly long history of doing a lot of really dangerous stuff by insisting it needs to be done “for the children.” That doesn’t mean that all “for the children” laws are bad, but they do deserve scrutiny, especially when they appear to be reactive to news events, and rushed out with little understanding or discussion. And that’s a big part of our concern with SESTA — the Stop Enabling Sex Traffickers Act — a “for the children” bill. With a name like that, it’s difficult to oppose, because we’re all in favor of stopping sex trafficking. But if you actually look at the bill with any understanding of how the internet works, you quickly realize that it will be tremendously counterproductive and would likely do a lot more to harm trafficking victims by making it much more risky for internet services to moderate their own sites, and to cooperate with law enforcement in nabbing sex traffickers using their platforms.

There’s a hearing tomorrow morning about SESTA, and the bill is quickly moving forward, with very few Senators expressing any real concern about the impact it might have on free speech or the internet — despite the fact that a ton of tech companies and free speech advocates have spoken out about their concerns. Instead, over and over again, we’re hearing false claims about how it’s just Google that’s concerned. Last month, we’d put up a page on our Copia site about the bill with a letter to Congress signed by a few dozen tech companies. Today we’re offiically announcing a standalone site, 230Matters.com, that explains why CDA 230 is so important, highlighting the many different parties concerned with the bill, from the ACLU and EFF to tech companies to think tanks and more. The site also hosts the letter that we sent to Congress with our concerns about the bill, put together with the group Engine Advocacy and signed by over 40 companies including Kickstarter, Reddit, Tucows, NVCA, Github, Automattic, Cloudflare, Rackspace, Medium and more.

That’s not “just Backpage” or “just Google”. The letter was signed by internet companies big and small that know just how damaging SESTA will be — not just to their ability to operate online, but to their own efforts to proactively moderate their own sites, or even to work with law enforcement to help stop trafficking online. In other words, this bill is a double whammy: (1) it will greatly harm innovation and free speech online and (2) do so in a way that is likely to make trafficking worse. Unfortunately, supporters of the bill are falsely claiming that being against this bill is the equivalent of supporting sex trafficking. That’s dangerous and leaves no room for actual discussion about why the bill will be so counterproductive.

The letter is still open for more signatures — so if you represent a company that is concerned about this bill, please consider signing on.

With Congress paying attention to SESTA this week, you can expect more posts from us exploring the problems with the bill and with the arguments in its favor. We already had one post earlier today debunking the attacks on EFF and CDT, and more are forthcoming…

Filed Under: 230 matters, cda 230, for the children, free speech, intermediary liability, section 230, sesta, trafficking

How Congress' Attempt To Break CDA230 Could Kill Airbnb

from the liability-liability-liability dept

Earlier this week, we wrote about a dangerous bill to punch a giant hole in Section 230 of the CDA. We spent a lot of time in that post detailing how problematic the bill is and how it would actually be counterproductive to the stated goal of stopping human trafficking. But, beyond just being counterproductive to the stated goal, the bill would likely create fairly massive negative consequences for tons of internet companies. If anyone used any part of that company’s products and services for trafficking, it would open up companies not just to liability, but to costly legal action, even if they’re eventually vindicated.

And I wanted to dig into one example: Airbnb. As we’ve discussed in the past, Airbnb relies heavily on CDA 230, because otherwise, any time anything went wrong with an Airbnb hosted place, Airbnb would face potentially crippling lawsuits. And I’m thinking about Airbnb specifically, because of a recent ruling that Eric Goldman pointed out, in which Airbnb’s largest competitor VRBO was saved by CDA 230. You can go over to Eric’s blog to read the details, but the really short version is that someone booked a “luxury resort” via VRBO for a ridiculous sum of money, and the rental units never happened. The victims targeted VRBO with the lawsuit, but the court has none of it.

The plaintiffs claimed VRBO qualified as a ?seller of travel services,? which would subject it to heightened regulation. The court disagrees: ?HomeAway merely provides a venue for others to sell or provide lodging, but does not provide the actual facility where people can ?lodge.’? See the uncited SF Housing Rights Committee v. Homeaway ruling. Further, if VRBO did constitute a seller of travel services, Section 230 would apply: ?To hold HomeAway liable for misleading or inaccurate material (e.g., images from another property listing appearing on a different HomeAway website being duplicated on the VBRO.com Jewels of Belize rental account) in the third party created Jewels of Belize listing contravenes Section 230 of the CDA.?

To get around Section 230, the plaintiffs invoked VRBO?s ?Basic Rental Guarantee,? which provides reimbursement for certain types of fraud (but doesn?t cover direct wire transfers like those at issue here). VRBO denied the reimbursement claim, concluding that the listing came from an authorized property owner and the property actually existed (but apparently had serious problems). The court says VRBO did what it promised to do in the ?guarantee.? The fact VRBO used the term ?guarantee? (a term I wouldn?t have chosen personally) didn?t convert the reimbursement promise into something more.

Now, there’s a somewhat reasonable argument to be made that it would be smart business strategy for VRBO to handle the situation better and to reimburse these people. But making the company legally liable is another story.

So, now let’s get back to SESTA, the bill that was released earlier this week. Surely, some of you are thinking, that’s not a big deal for Airbnb? After all, everyone’s just talking about how it’s designed to takedown Backpage (ignoring that Backpage already shut down its adult section, and current law already lets the DOJ go after Backpage if it violated federal trafficking laws). And Airbnb isn’t Backpage. But… there actually have been a whole bunch of stories this year claiming that prostitutes are now using Airbnb. And, with some folks trying to conflate prostitution with trafficking, is it any stretch of the imagination to think lawyers will start suing Airbnb, claiming it’s violating federal anti-trafficking laws?

As Eric Goldman asks in his post:

In light of that, how would Airbnb and VRBO change their behavior to reduce their potential liability for sex trafficking pursuant to the proposed bills? Heck if I know, and I doubt Congress knows either.

Put yourself in the shoes of Airbnb and tell me: how would you completely rule out that anyone could possibly abuse the Airbnb service for trafficking? It’s… not easy. This doesn’t mean Airbnb wants this activity to happen via it’s platform. I’m 100% sure that it does not. It would be thrilled if there were an easy to way to stop it. But… it’s not. Like, this is a basic impossibility. And yet, if it happens, then suddenly the companies themselves could be liable for criminal activity. Criminal activity that was done by others, that Airbnb would have no effective way to stop, short of shutting down the site or doing something ridiculous and drastic. That… seems like a pretty big overreaction. Yes, trafficking is a problem, but this bill is sending a wrecking ball through the internet as it seeks out one particular company.

And, yes, I get that some people don’t like Airbnb, so maybe they’re fine with this kind of collateral damage, but Airbnb is just one example here. Plenty of other sites that you probably do like will face similar problems. This is a bad bill that won’t even help with its stated goals, but will create serious problems for people around the globe.

Filed Under: cda 230, intermediary liability, liability, prostitution, section 230, trafficking, unintended consequences
Companies: airbnb, vrbo

Senate's Latest Attack On Backpage Will Be Massively Counterproductive, Create Tremendous Harm

from the this-is-a-bad-approach dept

It’s no secret that there are a bunch of folks in the Senate who really, really, really dislike the fact that the site Backpage has been abused by some users for sex trafficking. They should be happy that through a lot of public pressure, Backpage has shut down its adult section.

For reasons that are not entirely clear, many people seem to blame Section 230 of the CDA for the fact that sex traffickers have used Backpage.com. This is… weird and doesn’t make much sense. After all, Section 230 doesn’t apply to federal crimes around sex trafficking. So, if the platform itself is violating the law, the DOJ has the power and every right to go after the platform. Furthermore, as we’ve noted time and time again, these platforms have actually been tremendously helpful in allowing law enforcement to track down those responsible for trafficking and to help victims of trafficking. Still, because of this misplaced focus on CDA 230, earlier today, a bunch of Senators released a counterproductive and dangerous bill that would blow a massive hole through CDA 230, and it’s clearly written 100% to focus on Backpage. Nearly all of the quotes about the bill from the Senate co-sponsors mention Backpage.

And that’s… odd. Because just two years ago, Congress passed, and President Obama signed, another anti-trafficking bill that had provisions that were similarly designed solely to target Backpage. So why aren’t those actually being used if Backpage is such a problem (and, again, the DOJ could easily go after Backpage for violating trafficking laws if it actually did so). It’s especially odd that none of the supporters of this new bill even mention the fact that they passed a similar “kill Backpage” bill just two years ago and no one’s tried to use it.

And even worse, the approach in this new bill, dubbed the Stop Enabling Sex Traffickers Act, will be massively counterproductive to the goal of stopping sex trafficking. While the bill’s supporters claim it is “narrowly focused,” it is anything but that. It opens up a giant hole in CDA 230 — the law that protects internet platforms from being blamed for the actions of their users — saying that if federal sex trafficking violations (which, again, are already NOT covered by CDA 230) are involved, state Attorneys General and private individuals can now sue platforms — especially if the platforms have “knowledge” of how they’re being used for trafficking.

Law professor Eric Goldman has a thorough description of the problems with the bill.

* what online services will be regulated other than Backpage? The press release accompanying the Senate bill draft references Backpage a half-dozen times. Is this law only about making sure a single company, Backpage, is dead dead dead? Or will the bill reach other online services? If so, who? The most likely answer is that this law potentially implicates every online service that deals with user-generated content, which would make this an unusually wide-ranging bill. * what about the SAVE Act, the law (sponsored by Rep. Wagner) that Congress passed in 2015 to kill Backpage? The bill?s press release doesn?t mention the SAVE Act once, even though it was designed to accomplish the same policy goals. Why not? Did Congress misjudge the policy efficacy of that law? Or perhaps it?s too early to judge the SAVE Act?s efficacy? A federal grand jury in Phoenix is considering indicting Backpage or its executives, and the odds are that the SAVE Act would be key ground for such an indictment. So perhaps Congress has already enacted all of the legislation it needs to kill Backpage?? If so, a new and major exclusion to Section 230 would not add any new policy benefits but would come with substantial policy costs. * does the elimination of a centralized online prostitution ad venue actually improve the situation for victims of sex trafficking? This is the fundamental policy objective of the bill, but I have yet to see any good evidence demonstrating this outcome. Maybe it?s so intuitive (shut down Backpage, victims are better) that members of Congress don?t expect to see any proof, but this is hardly intuitive to me. We?ve seen over and over again that anti-prostitution regulations redirect the demand for prostitution elsewhere. If this bill accomplishes its goal, where will that demand get redirected, and how will that affect victims? We?ve also seen many successful victim protection efforts by law enforcement using the public ads as leads/evidence. What will happen to those enforcement efforts, and what does that mean for the overall protection of victims? * what existing laws will be newly excluded from Section 230, and how will plaintiffs use those laws? I am extremely confident that none of the bill co-sponsors have comprehensively inventoried the existing state laws that will have tenable causes of action against online intermediaries once Section 230?s immunity is lifted. It could be zero laws (unlikely); it could be hundreds or thousands of new laws. Shouldn?t we model these effects before unleashing those laws?

I’d argue there are even bigger problems with the bill as well, focused on this: the end result will almost certainly be seriously counterproductive to the goal of ending trafficking. CDA 230 has two provisions that work together in unison: one that protects platforms from liability for actions of their users and a second one that is equally important (but often forgotten) that says that if a platform does moderate content, that moderation does not introduce new liability. The combination of these two provisions actually encourages platforms to monitor and police themselves, without adding a risk of new liability.

However, this new law completely undermines that. It includes a provision that says “knowing conduct” makes you liable for assisting, supporting or facilitating trafficking. And how might one “know” of such conduct? If you know how your platform is being used. Thus, the end result of this bill would be the exact opposite of what its sponsors are seeking. It will encourage platforms to turn a blind eye to what’s happening on their platform, out of fear that reviewng or moderating content might be used as evidence of “knowledge.” Yikes!

Even worse, this will undermine a bunch of ongoing projects that the tech industry has put together to help stop trafficking already. If you look at what programs are actually effective, they tend to involve tech companies actively working on solutions and information sharing. But, now, if a tech company works on one of those programs, that could be used as evidence by grandstanding state Attorneys General or trial lawyers as “evidence” of “knowledge” of their platforms facilitating trafficking! Why would any tech company continue working on these effective programs when the “thanks” they’ll end up getting are a bunch of lawsuits?

And, we’ve already seen years of state AGs grandstanding on issues by blaming tech companies for things their users do, as well as hundreds, if not thousands, of frivolous lawsuits where private individuals and companies sue platforms over actions of their users, all trying to find holes in CDA 230. And this bill opens up a wide one. Just make some halfway credible claim that someone somehow engaged in trafficking uses the platform and voila. The liability for platforms is going to be amazing, and the end result is… what? Backpage has already shut down its adult section, and sex trafficking has just moved elsewhere. The bill doesn’t target the actual perpetrators at all. It will just make them harder to find.

Tech companies who currently help catch traffickers will now be told not to do that out of a fear of liability. Platforms that already cut off traffickers from using the platform will now have the incentive to turn a blind eye (and certainly not to help law enforcement). And a ton of frivolous lawsuits will likely be filed. And it’s all to “stop” Backpage — a company that has already decided to stop accepting such ads.

Sex trafficking is a real and serious problem. But this weird sledge hammer approach directed at one particular company — Backpage — is misguided on so many levels. It doesn’t provide the DOJ with any more tools than it already had to go after Backpage, if the company violated the law. It only provides more tools to state AGs and trial lawyers to bring frivolous lawsuits and fishing expeditions against tons of other companies, many of whom have actively helped to attack the problem of trafficking. And, the bill is designed in a way that encourages them to stop helping.

And make no mistake, those who speak up against this bill will be unfairly attacked with a broad brush, with claims that they’re “supporting” trafficking by opposing this bill. But the opposite is true. This bill will not help stop trafficking. In all likelihood it will make the problem worse.

Filed Under: bob portman, cda 230, claire mccaskill, good samaritan, richard blumenthal, section 230, sex trafficking, trafficking
Companies: backpage