Topic: Legal

Legal side of Reputation Management

Hyperlinking to Sources Can Help Defeat Defamation Claims–Adelson v. Harris 0

An activist group posted an online petition urging then-Presidential candidate Mitt Romney to reject Nevada billionaire Sheldon Adelson’s campaign contribution. The petition linked to an AP story, which in turn linked to a court filing alleging that Adelson OKed his hotel empire chasing prostitution revenues. Adelson claims the petition defamed him. The defense won in the district court (my prior blog post) based in part on the fair reporting privilege to defamation, which gives extra protection from defamation for reporting on court filings.

On appeal to the Second Circuit, the court certified two questions to the Nevada Supreme Court, including:

Does a hyperlink to source material about judicial proceedings in an online petition suffice to qualify as a report for purposes of applying the common law fair report privilege?

Because the petition linked to the AP story, not directly to the court filing, the Nevada Supreme Court rephrased the issue:

we must consider, as an issue of first impression, whether a hyperlink in an Internet publication that provides specific attribution to a document protected by the fair report privilege qualifies as a protected report for purposes of that privilege.

(Only a lawyer could write a sentence like that!)

In a sentence that could have been written at the turn of this century, the court starts by celebrating the virtues of a hyperlinked web:

Hyperlinks provide strong attribution because they allow direct access to underlying materials, are intuitively easy to use, and are extremely prevalent online. A reader can click on a hyperlink and immediately determine whether official proceedings are implicated.

But not everything is aces with hyperlinks:

However, there is a drawback to hyperlinks as attributions—an average reader must identify a hyperlink, understand its importance, and ultimately open the link. When a hyperlink is not found, understood, or opened by a reader, it has failed as a source of attribution.

So the court is interested in whether readers will sufficiently notice any hyperlink to the source materials, prompting the court to digress into the “clickwrap”/”browsewrap” online contract formation rabbit hole, with cites to Specht, Nguyen, Zappos, & Fteja. With little gained from the digression, the court considers whether the petition’s link to the AP story was sufficiently prominent to readers:

Although the AP hyperlink was in the second of four textual paragraphs in the petition, it is important to note that the hyperlink was placed in the same sentence as the content it purported to support. That is to say, the AP news article supported the proposition that a report existed stating that “Adelson ‘personally approved’ of prostitution.” Thus, although the hyperlink was not conspicuous in a general sense, when reading the specific sentence the hyperlink functioned like a footnote. For this reason, we conclude that the hyperlink was conspicuous in the context of supporting a specific claim.

Furthermore, the textual explanation accompanying the hyperlink notifies readers that the petition draws upon other sources. The sentence in which the hyperlink appears states: “But this week, reports surfaced that … Adelson ‘personally approved’ of prostitution in his Macau casinos.” The sentence includes the qualifier “reports” and provides the operative hyperlink over the text “personally approved,” which is quoted. The hyperlink also provides support for the text it covers (i.e., the AP report supports the proposition that Adelson personally approved of prostitution). Although there were other hyperlinks in the sentence, we conclude that the textual references help make apparent to an average reader that the petition draws information from another source. Also, because the AP hyperlink is contained within the same sentence, an average reader interested in what the “reports” stated would simply click on the AP hyperlink to learn more.

The AP hyperlink, as a specific, active, and accurate attribution, provides average readers notice that the petition draws from a summary of judicial proceedings because the petition’s text indicates it is based on “reports” and the hyperlink’s placement and function allows for it to operate like a footnote. Therefore, we conclude that the online petition, as it existed when Adelson’s complaint was filed, fell within the purview of Nevada’s fair report privilege

With this, the Nevada Supreme Court sends its answers about Nevada defamation law back to the Second Circuit, where it appears Adelson is likely to lose his case.


Hyperlinks as Citations. This opinion dealt with a niche-y defamation law issue (the fair reporting privilege), but I see it as part of a broader legal trend. When I first blogged this case in 2013, I wrote: “if you support your negative factual assertions with hyperlinked citations, you can reduce the risk of a successful defamation claim.” Other cases in this genre include Ayyadurai v. TechdirtRedmond v. Gawker, and Seldon v. Compass. Similar to what you learned in 7th grade math: if you’re treading into possible defamation litigation zones, SHOW YOUR WORK.

Related: linking to defamatory content isn’t defamation (e.g., Slozer v. Slattery, Life Designs Ranch v. Sommer) and is protected by Section 230 (e.g., Vazquez v. Buhl, Directory Assistants v. Supermedia).

Link Rot. In a troubling footnote, the court discusses the negative consequences of “link rot” (citing Prof. Jonathan Zittrain): “If a hyperlink fails to connect a user to its underlying source, it will not bring a document within the fair report privilege.” I don’t think the court thought this through. Read literally, it means the exact same material could be not defamatory on day 1, become defamatory on day 2, and possibly (if the linked URL gets restored) go back to being not defamatory on day 3–even though the content itself hasn’t changed at all, even though the author can’t control what happens on remote servers, even though the author may not know about the link rot, and even though the author may lack the technical and legal authority to fix a broken link (if, for example, a third party publisher isn’t able or willing to update the content). The “link rot” discussion was clearly dicta because the link hadn’t rotted in this case, so I hope any future court encountering the issue will think this issue through more carefully. Among other reasons why a future court might reach a different conclusion: the link might still work in Internet Archive; or a simple Google search might allow the reader to find the source despite the link rot.

[Jargon watch: this opinion, and the district court opinion from 2013, are the only two cases I found in the Westlaw database containing the phrase “link rot.”]

What Do Readers Expect? The opinion turns on whether an “average reader” would understand that the underlined phrase “personally approved” was a hyperlink with supporting information. Without any empirical evidence to bolster its views, the court treats Internet users circa 2017 as savvy enough to interpret underlining in web pages as signals of hyperlinks. While this conclusion seems unassailable, note that it depends on technological facts that weren’t before the court and that change over time (i.e., would courts have reached the same conclusion in 1997?). Thus, the court made the same kind of assumption that the Second Circuit made in the uncited Meyer v. Uber ruling on contract formation in the mobile environment, when it reached an almost identical conclusion that “a reasonably prudent smartphone user knows that text that is highlighted in blue and underlined is hyperlinked to another webpage where additional information will be found.” I think both courts reached the right conclusion, but I am troubled by the inherent precariousness of appellate judges making assumptions about what average or reasonable online consumers would expect.

Billionaires and Defamation. What’s the deal with billionaires losing defamation suits (a topic I’ve blogged many times)? Is it that they are targets for harsher criticism than the rest of us? That they have thinner skins? That they can afford defamation lawsuits? (It is, after all, a sport of kings). That they are used to winning? That they expect to drive defendants into submission through expensive litigation, regardless of legal merits? I don’t fully understand the dynamics.

I do know that unsuccessful billionaire defamation lawsuits are one of the best reasons to support anti-SLAPP laws, because the laws change the economic calculus for defendants (though the risk of a fee shift won’t deter billionaires) and speeds up resolution of unmeritorious lawsuits. Nevada recently upgraded its anti-SLAPP law and successfully thwarted a different billionaire’s (Steve Wynn) efforts to undermine it. That’s the good news, but too many Americans still lack anti-SLAPP protection and are reluctant to discuss billionaires candidly due to the risk of being sued, meritoriously or not. So I see this lawsuit as another good reason to support a federal anti-SLAPP law to level the playing field for all of us.

Case citation: Adelson v. Harris2017 WL 4294562 (Nev. Sept. 27, 2017).

Source: Eric Goldman Legal

Bitcoin Foundation: Dear Congress, Early Regulation Kills Innovation 0

bitcoin foundation regulations warning legalThe Bitcoin Foundation wants to establish a “more open and diverse dialogue with the U.S. Congress” because it worries that federal legislation will “stifle the adoption and use of so-called ‘virtual currencies’ such as Bitcoin.”

The advocacy group, which envisions “economic participation without a bank account or credit history,” may have reason for concern. Over the past 24 months, several states have implemented cryptocurrency licensing requirements; the SEC issued an ICO alert and Canada responded in kind; China flat out banned initial coin offerings.

Bitcoin Foundation Worried About Excessive and Early Regulations

In response to officials’ regulatory knee-jerks, the Bitcoin Foundation partnered with a law firm to “fight against increasing federal and state regulation in the U.S.”

Below are excerpts from the Bitcoin Foundation’s announcement, plus comments by Llew Claasen — one of the foundation’s principals — about why over-burdening the burgeoning blockchain industry is bad news.

On Over-regulating Crypto and Fintech Startups: “The increased regulatory push by federal and state authorities, if it continues, is sure to threaten the existence of the fintech industry nationwide.”

On New York’s Bitlicense Law: “Just as the fintech industry’s use of cryptocurrency was stifled in New York by the adoption of the so-called Bitlicence, it is highly likely that increased regulatory and legislative burdens [placed upon Bitcoin] will have a similar negative impact.”

On Industry Uncertainty: “[The Bitcoin Foundation’s] view is that it is not yet clear what bitcoin and cryptocurrencies are. But by regulating the technology prematurely, you put it into a box it might not fit into later on. It’s not that we don’t believe there’s a time and place to regulate Bitcoin, we’re just saying that it’s too early and that regulation will just do harm to very innovative businesses and technologies.”

On Criminals Using Cryptocurrencies: “Reports by the European commission in June specifically found that there is very little of that activity, particularly there is very little terrorist funding and money laundering. Bitcoin is too hard for criminals to use at the moment. It’s easier for a criminal to use the United States dollar.”

On Bitcoin’s Usefulness: “Bitcoin has the potential to be a store of value that’s outside the control of central banks. In the future, we would like to see more adoption of Bitcoin. It’s not going to be the only currency, and it won’t replace the current system, but among other options it’s a useful case for the future.”

On Bitcoin’s Current Limitations: “It’s immature technology. There is a perception that it allows unlimited transfer of value, but it can only do three or four transfers a second. The network cannot handle larger transactions. “

On Delaying Cryptocurrency Regulations: “I understand that regulators need to protect the currency and people from risk. [In the future] regulators will probably regulate at the end points of the cryptocurrency network. I get that, it’s inevitable. Around the world the view is the same. But governments and financial services are already struggling, as in Venezuela, and people need an alternative way.”

Connect With A Bitcoin Lawyer

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For news and information regarding cryptocurrencies, head to the blockchain section of our law blog.

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Article Sources

Nixon, M. (2017, August 30). Bitcoin Foundation seeks legal protection from US currency regulation. Retrieved September 28, 2017, from

The post Bitcoin Foundation: Dear Congress, Early Regulation Kills Innovation appeared first on Kelly / Warner Law | Defamation Law, Internet Law, Business Law.

Source: Kelly Warner Law

App Listening For Audio Beacons May Be Illegal Wiretapping–Rackemann v. Colts 0

Screen Shot 2017-10-03 at 7.11.51 AMThis is a lawsuit against the Colts and app developers, alleging that the Colts’ app activates a device’s microphone and temporarily records portions of audio, for advertising purposes. The app monitors the audio for “beacon tones” which are then used to deploy advertisements. The app is able to listen on command and while running in the background. The app’s terms of service allegedly does not disclose the use of beacon technology or that it activates the microphone for the purposes of “listening in”. It’s unclear from the order precisely when the listening feature was activated.

Plaintiff alleged that he downloaded the app from the Google Play store and used it to follow the Colts and as a result, the app listened in on his “private conversations”. He sued on his own behalf and on behalf of a putative class. The various defendants (the Colts, app developers) moved to dismiss. The court denies the motions.

Standing: The court first says that plaintiff has standing. Citing to Spokeo, the court says this is an example of a privacy right recognized by Congress and in the common law, and also one where damages are difficult to prove. In other words, it’s the classic statutory violation that can satisfy Article III standing even without a showing of damages (“the Court concludes that Congress exercised its judgment to codify a substantive right . . . long recognized in American jurisprudence”).

The Interception Claim: The court also says plaintiff adequately states an interception claim. Plaintiff adequately alleges that his “private” conversations were intercepted. He need not satisfy some sort of Rule 9-type standard with respect to these allegations. He also adequately alleges that his communications were “acquired”. The court says the definition of “acquired” is broad and includes where a communication is “captured or redirected in any way”. That definition is easily satisfied here based on the allegations. Finally, the court also says that the “contents” (the substance or purport) of the communications were captured.

Derivative Liability: The court also evaluates the claims by the Colts and upstream developers and providers that, while there may be primary liability under the statute, they are not liable because they did not actually engage in the interception. (The fact that everyone raised this argument is somewhat self-defeating.) Ultimately the court says it need not address the issue of aider and abettor liability, as these particular defendants are alleged to control the “listening rules” for the apps. The court also notes that the Colts’ argument is specious given that the app “belonged to” the Colts and was programmed by the Colts. The court similarly dismisses the argument of the technology provider on the basis that factual questions exist regarding the true nature of the interceptions. The court does say that, with respect to one of the defendants (the developer), the issue is somewhat more difficult as the plaintiff’s allegations regarding its “role in the operation of the App are fewer are less developed.” Nevertheless, the court says factual issues exist even as to this defendant and, in the process, cites to several derivative liability cases in the context of interception claims.

[Finally, the court does agree that plaintiff’s allegations regarding “use” of the communications are lacking and it dismisses these claims (with leave to amend).]


This is a super interesting case. You often hear chatter on social media about apps (including the big ones, such as Twitter) “listening,” but to my knowledge this is one of the first lawsuits brought against apps for this type of conduct. One wonders how prevalent in the industry this practice is and how many chickens will come home to roost. (The Warriors beat back a similar lawsuit earlier this year, although it is still ongoing: “Judge Sides With Warriors In Battle Over ‘Eavesdropping’ App“.)

This ruling is a good illustration of where Spokeo can help plaintiffs with respect to standing. There are not a ton of federal statutes out there that are intended to protect privacy and vindicate harms protected traditionally under the common law, but the Wiretap Act appears to be one of them.

The failure to seek permission from the user seems like UX malpractice, if not legal malpractice. Users informed about privacy complain about the granularity of permission, but not seeking permission at all seems like a gaffe at best. I’m curious to see the underlying app development agreement and indemnification provisions.

As Eric notes below it does not appear that any human ever listened to the conversations or that they were stored, so where’s the real harm? On the other hand, judges don’t appear very receptive to this argument, whether it comes to browsing habits, emails, or as in this case, conversations.

Eric’s Comments:

* Judges vary on just how rigorously they’ll screen a complaint on a motion to dismiss. This judge seemed substantially more permissive to the plaintiffs’ pleadings than I’d expect other judges to be.

* This case reminded me a lot of the Pharmatrak case from 2003, which I still teach in Internet Law. That case dealt with web beacons rather than audio beacons, but the cases share the same basic technological and legal issues. In Pharmatrak, trying to “listen” to the web beacons unintentionally ensnared personally identifiable information from healthcare patients; in this case, listening to the audio beacons led to the unwanted ensnarement of private conversations. And both cases involved finer points of the ECPA. So what’s old is new again. Surprisingly, despite its obvious relevance, the Pharmatrak case wasn’t cited in the opinion.

* Apps engaging in undisclosed surreptitious recordings are not OK. I hope and expect that they are illegal. What lawyer thinks LISNR’s business model is a good one? Cf. the Pharmatrak case again, where Pharmatrak went bankrupt after the disclosure of its unwanted capturing of PII.

* Having said that, let me ask a question based on the following 2 assumptions (that may or may not be true): (1) no human ever listened to any recordings of the app users’ private (or, for that matter, public) conversations, and (2) any recordings were flushed soon enough that they never posed a serious risk of being obtained by criminal hackers (or were encrypted sufficiently strongly that no third party could ever listen to them even if stolen). If these 2 assumptions are true, then what harm did the plaintiffs suffer, really? Wouldn’t this just be another variation of a tree that falls in the forest that no one is around to hear?

Case citation: Rackemann v. LISNR, Inc., 1:17-cv-00624-TWP-MJD (S.D. Ind. Sept. 29, 2017)

Related posts:

Keylogger Software Company Not Liable for Eavesdropping by Ex-spouse — Hayes v. SpectorSoft

Ex-Employees Awarded $4,000 for Email Snooping by Employer — Pure Power Boot Camp v. Warrior Fitness Boot Camp

Court: Husband’s Access of Wife’s Email to Obtain Information for Divorce Proceeding is not Outrageous

Minnesota Appeals Court Says Tracking Statute Excludes Use of GPS to Track Jointly Owned Vehicle — State v. Hormann

NJ Appeals Court: No Privacy Violation When Spouse Uses GPS to Track Vehicle — Villanova v. Innovative Investigations, Inc.

Ex-Spouse Hit With 20K in Damages for Email Eavesdropping – Klumb v. Goan

Source: Eric Goldman Legal

Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post) 0

by guest blogger Cary Glynn

[Eric’s intro: in the SESTA debates, occasionally there has been some confusion about how Section 230 interacts with state criminal laws. This issue is addressed by Section 230(e)(3), and Harvard Law 3L Cary Glynn is back to help us navigate how courts have interpreted that provision.]

Not many Section 230 opinions focus on § 230(e)(3). The subsection speaks to the relationship between Section 230 and state law. It reads as follows:

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

So what have courts said these sentences mean? A few plaintiffs have argued that Section 230 permits inconsistent state criminal law claims. Those arguments have failed. See People v. Gourlay, No. 278214, 2009 WL 529216, at *3 (Mich. Ct. App. Mar. 3, 2009) (“[T]he phrase ‘any State or local law’ includes civil and criminal laws.”); Voicenet Commc’ns, Inc. v. Corbett, No. 04-1318, 2006 WL 2506318, at *3 (E.D. Pa. Aug. 30, 2006) (“[S]ub-subsection (e)(3) gives interactive computer service providers immunity from state criminal laws that are inconsistent with the CDA.”);, LLC v. Cooper, 939 F. Supp. 2d 805, 823 (M.D. Tenn. 2013).

Of course, subsections (c) and (e) do not limit federal criminal prosecutions. See § 230(e)(1). In fact, subsection (e)(1) demonstrates that Congress knows how to exclude criminal law: “Nothing in this section shall be construed to impair the enforcement of . . . any . . . Federal criminal statute.” (emphasis added). If Congress meant to exclude state criminal law from Section 230’s reach, it would have included a similar provision. And, when Congress said “any State or local law,” it did not mean “any State or local law that is not a criminal law.” (emphasis added).

In addition to Section 230’s applicability to state criminal law, courts have relied on subsection (e)(3) to support the following propositions, each explored below:

(1) Section 230 preempts inconsistent state law.
(2) Subsection (e)(3) is a source of the immunity provided by Section 230.
(3) Section 230 is not limited to tort claims.
(4) Section 230 provides immunity against many forms of relief.

[Note: Before Congress amended Section 230 in 1998, the text of subsection (e)(3) was subsection (d)(3).]

(1) Section 230, a federal law, preempts “inconsistent” state law.

Recently, a federal district court judge explained that the second sentence of (e)(3) is an “express preemption clause.” Airbnb, Inc. v. City & Cty. of San Francisco, 217 F. Supp. 3d 1066, 1072 (N.D. Cal. 2016). Many courts have reached this conclusion. See, e.g., Jane Doe No. 1 v., LLC, 817 F.3d 12, 22 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017); Ricci v. Teamsters Union Local 456, 781 F.3d 25, 27 (2d Cir. 2015); Zeran v. Am. Online, Inc., 129 F.3d 327, 334 (4th Cir. 1997); Doe v. Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016); Klayman v. Zuckerberg, 753 F.3d 1354, 1356 (D.C. Cir. 2014). The text is very clear: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” § 230(e)(3).

However, the first sentence of § 230(e)(3), and the limited nature of its second sentence, do not suggest field preemption, which might mean that Section 230 would preempt all state law in the “field”—perhaps no state causes of action could be brought even against the authors of defamatory content on websites. In Cisneros v. Sanchez, a federal district court judge wrote that: “the CDA is clearly not intended to completely preempt state law in any given area because § 230(e)(3) is narrowly tailored to allow state and local laws within the same field, so long as they are consistent.” 403 F. Supp. 2d 588, 592 (S.D. Tex. 2005). Therefore, a “libel cause of action asserted by Plaintiff is consistent with the CDA as Plaintiff only seeks to hold Defendant liable for statements he actually authored, not for the statements of others.” Id.

Still, Section 230(e)(3) has quite broad consequences. If a state law seeks to impose liability (criminal, civil or otherwise) on a defendant based on third party content, Section 230 preempts it.

(2) A substantial percentage of citations to (e)(3) are brief acknowledgements of the second sentence’s literal force.

Courts often cite (e)(3) after citing (c)(1), which generally prohibits treating a website as a publisher of information posted by a third party, in order to make clear that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” See, e.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007). This point may be obvious, but it relates to a potential doctrinal pitfall: (e)(3) is not the sole source of immunity under Section 230 or necessary for carrying (c) into effect. For example, (c) covers claims arising from federal law, unlike the second sentence of (e)(3). The Ninth Circuit has made clear that (c)(1) independently prohibits certain types of publisher liability. Fair Hous. Council of San Fernando Valley v., LLC, 521 F.3d 1157, 1179 (9th Cir. 2008).

(3) Section 230 is not limited to tort claims.

One state court cited (e)(3) to show that Section 230 provided potential immunity against contract claims: “§ 230 does not limit its grant of immunity to tort claims: ‘No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.’” Schneider v., Inc., 31 P.3d 37, 41–42 (Wash. Ct. App. 2001).

(4) Some courts have held that subsection (e)(3) shows that Section 230 precludes a variety of forms of relief, not just damages for tort claims.

At least two state courts have held that subsection (e)(3)’s prohibition on inconsistent causes of action and liability reaches declaratory and injunctive relief. In Kathleen R. v. City of Livermore, a California state court held that “even if for purposes of section 230 ‘liability’ means only an award of damages, the statute by its terms also precludes other causes of action for other forms of relief. . . . Taxpayer actions and claims for declaratory and injunctive relief are no less causes of action than tort claims for damages, and thus fall squarely within the section 230(e)(3) prohibition.” 104 Cal. Rptr. 2d 772, 781 (Cal. Ct. App. 2001) (citation omitted); see also Medytox Sols., Inc. v., Inc., 152 So. 3d 727, 731 (Fla. Dist. Ct. App. 2014).

However, in Hassell v. Bird, a California state court recently held that Section 230 did not immunize Yelp from a court order to remove an allegedly defamatory review. 203 Cal. Rptr. 3d 203, 208 (Cal. Ct. App. 2016). This ruling is problematic for many reasons, and it is currently on appeal to the California Supreme Court. While the court cited Kathleen R. and Medytox, it did not engage in substantial interpretation of subsection (e)(3).

Conclusion. SESTA and the Wagner bill would change Section 230(e)(3) by excluding sex trafficking-related state crimes and civil claims from its preemptive effect. The links below explain why that’s a bad idea.

More SESTA-Related Posts:

* Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
* The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
My Senate Testimony on SESTA + SESTA Hearing Linkwrap
Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (guest blog post)
Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunity

Source: Eric Goldman Legal

An Overview of Congress’ Pending Legislation on Sex Trafficking (Guest Blog Post) 0

By guest blogger Cary Glynn

[Eric’s introduction: Harvard Law 3L Cary Glynn is back to provide a comprehensive picture of all of Congress’ current anti-sex trafficking efforts, of which SESTA is just one piece. Given this high level of activity, it’s clear that it’s not SESTA-or-nothing when it comes to combating sex trafficking. Also, one typical suggestion as an alternative to SESTA is to provide more funding to prosecutors; bills are already pending in Congress to do that. All of the bills referenced below were identified via a keyword search for “sex trafficking,” though in some cases the bills primarily address other issues, including human trafficking. Because of the limitations of keyword searches, it’s likely Congress is considering additional bills not listed below that would also help combat sex trafficking.]

Congress is considering a variety of bills targeting sex trafficking beyond the Stop Enabling Sex Traffickers Act of 2017 (SESTA), S. 1693, and the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865. Even if Congress does not enact SESTA, it retains many options for addressing sex trafficking.

These bills span various policy areas: victim support, targeting traffickers, information gathering, government programs, and targeting purchasers. In addition to SESTA and the Wagner bill, the following bills are pending in Congress:

Victim Support

* The Trafficking Survivors Relief Act of 2017, introduced in the House on January 11, 2017, would allow trafficking victims to file a motion to vacate convictions and expunge arrests related to offenses resulting from having been a trafficking victim.
* The Abolish Human Trafficking Act of 2017, introduced in the House on June 7, 2017 and passed by the Senate on September 11, 2017, would provide a variety of resources to victims, including restitution, witness assistance, and training for government agencies on assisting victims.

Targeting Traffickers

* The Global Child Protection Act of 2017, passed by the House, would expand the definition of “illicit sexual conduct” under 18 U.S.C. § 2423 and expand the definition of a Federal sex offense.
* The Targeted Rewards for the Global Eradication of Human Trafficking Act, passed by the House, amends the State Department Basic Authorities Act to allow the offering of awards for individuals who provide information leading to the apprehension of human traffickers.
* The Building America’s Trust Act, introduced in the Senate on August 3, 2017, would increase the penalties for human trafficking under 8 U.S.C. § 1324.
* The Shame Act of 2017, introduced in the House on January 11, 2017, would allow sentencing judges to order the publishing of the name and photograph of convicted child sex traffickers.

Information Gathering

* The Public-Private Partnership Advisory Council to End Human Trafficking Act, introduced in the Senate on June 21, 2017, would established an advisory council composed of representatives of NGOs and nonprofits with anti-human trafficking expertise. The council would advise the Senior Policy Operating Group established by the Trafficking Victims Protection Act and the President’s Interagency Task Force to Monitor and Combat Trafficking. The council would prepare a report on human trafficking.
* The Put Trafficking Victims First Act of 2017, passed by the House, calls for a study by the Director of the Office for Victims of Crime to study human trafficking. It calls for a working group designed to identify methodologies for collecting data on the prevalence of trafficking. It calls for a report by the Attorney General on prosecutors seeking restitution for trafficking victims. Finally, the bill announces that Congress encourages the States to enact a “survivor-centered approach.”
* The End Banking for Human Traffickers Act of 2017, introduced in the House on April 27, 2017, adds the Treasury Secretary to the President’s Interagency Task Force to Monitor and Combat Trafficking and requires the Task Force to report to Congress on money laundering and human trafficking. It also calls on the Department of State to submit a report on money laundering and human trafficking.

Government Programs

* The Enhancing Detection of Human Trafficking Act, passed by the House, directs the Department of Labor to train its personnel on how to detect human trafficking and assist law enforcement.
* The Human Trafficking Accountability Act, introduced in the House on July 19, 2017, requires the Attorney General to designate “Human Trafficking Coordinators” in each Federal judicial district. These Assistant United States Attorneys would help to coordinate national human trafficking policy.
* The Department of State, Foreign Operations, and Related Programs Appropriations Act, introduced in the Senate on September 7, 2017, would allow $1 million to be allocated for targeting human trafficking in Central America and Mexico through the use of DNA.
* The Empowering Law Enforcement to Fight Sex Trafficking Demand Act, passed by the House, allows the provision of grants for combating human trafficking to state and local law enforcement under the Byrne JAG grant program.
* The Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2017, passed by the House, authorizes over one hundred million dollars of funding to prevent human trafficking, prosecute traffickers, and aid victims. This bill encompasses a wide variety of policies aimed at sex trafficking.
* The Trafficking Victims Protection Act of 2017, passed by the Senate on September 11, 2017, seeks to prevent human trafficking through programs to train school personnel, extends funding originally authorized by the earlier Trafficking Victims Protection Act, and would promote federal coordination. It also encompasses many other programs to reduce sex trafficking.
* The CATCH Traffickers Act of 2017, introduced in the House on January 3, 2017, requires the Secretary of Homeland Security to create a national database for human trafficking investigations.
* The Empowering Educators to Prevent Trafficking Act, introduced in the House on May 1, 2017, allows the awarding of grants to educational agencies for programs that train educators to detect sex trafficking and provide children with safety information.

Targeting Purchasers

* The Reducing the Demand for Human Trafficking Act of 2017, introduced in the House on July 27, 2017, encourages the use of funds for reducing demand for human trafficking by investigating individuals who purchase commercial sex.

More SESTA-Related Posts:

The DOJ’s Busts of MyRedbook & Rentboy Show How Backpage Might Be Prosecuted (Guest Blog Post)
Problems With SESTA’s Retroactivity Provision (Guest Blog Post)
My Senate Testimony on SESTA + SESTA Hearing Linkwrap
Debunking Some Myths About Section 230 and Sex Trafficking (Guest Blog Post)
Congress Is About To Ruin Its Online Free Speech Masterpiece (Cross-Post)
Backpage Executives Must Face Money Laundering Charges Despite Section 230–People v. Ferrer
How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them)
Sen. Portman Says SESTA Doesn’t Affect the Good Samaritan Defense. He’s Wrong
Senate’s “Stop Enabling Sex Traffickers Act of 2017”–and Section 230’s Imminent Evisceration
The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230
WARNING: Draft “No Immunity for Sex Traffickers Online Act” Bill Poses Major Threat to Section 230
The Implications of Excluding State Crimes from 47 U.S.C. § 230’s Immunit


Source: Eric Goldman Legal