Topic: Legal

Legal side of Reputation Management

Would Shutting Down Backpage Reduce Violence Against Women? (Guest Blog Post) 0

by guest blogger Alex Levy

Many activists assert that the proliferation of online platforms that facilitate commercial sex has led to increased rates of exploitation and violence against women. This belief has motivated a slew of wide-ranging attacks against websites on which sexual commerce occurs, including legislation (such as the recently-introduced SESTA), civil lawsuits, and sidelong strikes.

However, sex workers have long argued that access to online marketplaces improves their safety and reduces their vulnerability to abuse. A new study linking online commercial sex markets with decreased murder rates brings empirical support to this claim, suggesting that shuttering websites like Backpage might actually do more harm than good.

In their article, entitled “Craigslist’s Effect on Violence Against Women,” economists Scott Cunningham and Gregory DeAngelo and systems expert John Tripp explore correlations between the availability of online marketplaces for sexual commerce and violent crime rates. Their analysis strongly suggests that destabilizing commercial sex markets may significantly harm sex workers. In other words, efforts to reduce commercial sex by regulating intermediaries may actually increase violence commonly associated with commercial sex.

In order to explore the broader effects of online commercial sex markets, the authors looked at several events following the introduction of an “erotic services” (ERS) section to Craigslist in various cities.

First, they examined changes to numbers and characteristics of posts on The Erotic Review, a review website for sex workers. In the first 10 months after ERS was introduced in a given city, the number of reviews went up by an average of 41%, and the number of unique sex work providers reviewed increased by nearly 30%. The simplest interpretation would be that ERS prompted the commercial sex market to grow, though of course the number of reviews is not a perfect proxy for the total number of commercial sexual transactions (and causation, in any event, cannot be proved). Another change indicated by these reviews related to working conditions: after 10 months, far fewer sex workers were working through intermediaries such as pimps (12% more were operating on their own). This suggests that robust online marketplaces may reduce sex workers’ dependency on third parties, who can be violent. It may also indicate a drop in the proportion of sex trafficking victims, since human trafficking victims are almost always controlled by third parties (i.e. don’t operate independently). [asterisk: the one exception is that a minor may be a trafficking victim despite not being controlled by a pimp, since a buyer may be prosecuted as a trafficker. This is rare, at least as Federal prosecutions go.]

Next, the authors looked at cities’ female murder rates in the aftermath of the introduction of ERS. They found that ERS correlated with a roughly 17% decrease in female murders — a drop that was reflected in neither male murder rates nor in rates of females killed by acquaintances in the same period. Notably, the introduction of Craigslist without an ERS section did not predict a similar decline in murder rate. (The authors also examined rape offenses, and found a slight reduction of questionable statistical significance.) If this correlation is actually based on causation, this result suggests that the availability of ERS saved nearly 270 lives saved per year. The authors estimate that it would cost roughly $20 billion to achieve similar results through increased policing.

There are several possible explanations offered for these results. The presence of ERS may allow people who would otherwise engage in street-based sex work to move their operations to more secure locations. Online transactions create a “digital fingerprint” that decreases people’s likelihood of getting away with violent crimes. But ultimately, the greatest defense against abuse may simply be giving more options and greater security to sellers.

The article leaves important questions unanswered, among them whether the availability of ERS has any impact on sex trafficking. (As discussed above, the fact that a greater proportion of sex workers work autonomously when ERS is available may point to a decline in sex trafficking, but this is speculative.) Despite its limitations, the study should be an important wake-up call to legislators who broadly assume — without evidence — that online platforms make the world a more dangerous place. This study suggests that policies like SESTA could unintentionally cause great harm. At the very least, legislators need to take a closer look. Thousands of women’s lives may be at stake.


Source: Eric Goldman Legal

Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill 0

drudge sirenOn Friday, a Manager’s Amendment to SESTA was announced. The good news is that its revised language slightly improved the bill. The bad news is that SESTA remains bad policy. The worse news is that SESTA is now well-positioned to pass the Senate Commerce Committee and then the full Senate, and any remaining opposition efforts will not stop it. The key remaining open question is whether the SESTA language will propagate to the House’s Wagner bill, or if the more pernicious terms of the Wagner bill could still become law.

What SESTA Does

SESTA amends Section 230 in three ways:

1) It would enable sex trafficking victims to bring civil lawsuits against online services for publishing sex trafficking promotions from third parties.

2) It would enable state attorneys’ general to bring enforcement actions against online services for publishing sex trafficking promotions from third parties.

3) It would expand the scope of the federal sex trafficking crime, exposing online services to greater risk of prosecution for publishing sex trafficking promotions from third parties.

Other SESTA provisions include a policy statement that courts should interpret Section 230 to enable vigorous enforcement of anti-sex trafficking laws and a retroactivity provision extending post-SESTA rules to pre-SESTA activity.

See the Manager’s Amendment redlined against the existing statutes.

What Changed in the Manager’s Amendment

None of these structural elements changed in the Manager’s Amendment. Here are the main changes between SESTA’s initial draft and the Manager’s Amendment:

Clearer linkage of state criminal prosecutions and civil claims to federal law. SESTA’s initial draft authorized state criminal prosecutions “targeting conduct that violates a Federal criminal [anti-sex trafficking] law.” It also authorized unrestricted civil enforcement of the federal sex trafficking cause of action. The Manager’s Amendment clarify that both civil lawsuits and state criminal prosecutions for sex trafficking must prove that the defendant violated the federal anti-sex trafficking crime. This revision has several benefits. It incorporates the federal crime’s high scienter standards into the civil and state law actions, and it imposes the uniformity of a single federal standard on both types of claims.

Note that civil plaintiffs will need to prove the predicate federal criminal violation only by “a preponderance of the evidence” (the typical civil burden of proof), rather than “beyond a reasonable doubt” (the typical criminal burden of proof). I still can’t quite figure out the implications of that. At the same time, civil plaintiffs will need to prove the federal crime violation without the robust discovery tools available to law enforcement.

Authorization of civil AG actions in federal court. SESTA would newly enable state AGs to bring civil suits in federal court:

In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by any person who violates section 1591, may bring a civil action against such person on behalf of the residents of the State in an appropriate district court of the United States to obtain appropriate relief.

I don’t understand this provision and why it’s needed, given that SESTA separately loosens the constraints on state AG enforcement of their state crimes. The scope of civil enforcement is still tied to the federal crime, which is good, but giving state AGs a second option to enforce the law is puzzling. I know the bill proponents feel like much of the sex trafficking enforcement work is done at the state and local level, so unleashing the state AGs from Section 230 will put more “cops on the beat.” However, why do they also need a civil action to do that work?

Section 230(c)(2)(A) remains as a defense. In both public and private comments, the proponents kept saying that SESTA preserved Section 230’s Good Samaritan standards even though SESTA restricted both Section 230(c)(1) and Section 230(c)(2). The Manager’s Amendment now expressly indicates that Section 230(c)(2)(A) remains as a defense to any civil lawsuits and state prosecutions newly enabled by SESTA. This is good news, but as I’ll explain in more detail in a separate post, the carveout fundamentally misunderstands the nature of Section 230’s Good Samaritan mechanisms. The short story: Section 230(c)(2) only protects removal decisions, while SESTA enables new lawsuits that will be based on content publication instead of removals, so Section 230(c)(2) doesn’t really apply to the source of SESTA’s new liability. I expect defendants in SESTA-enabled cases will stretch Section 230(c)(2) as far as they can, but the existing caselaw has so severely hampered Section 230(c)(2) that I don’t expect it will help much. A drafting quirk: there’s no clear reason why Section 230(c)(2)(B) doesn’t also apply to SESTA-enabled claims, but the Manager’s Amendment only preserves Section 230(c)(2)(A).

The Senate Commerce Committee report on SESTA might include some additional beneficial language about the value of Good Samaritan protections, but I don’t put much stock in committee reports because they help only when a court finds statutory language sufficiently inscrutable.

Narrowed scope of the federal crime expansion. The initial SESTA draft expanded what constitutes criminal “participation in the [sex trafficking] venture” to include “knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation.” The bill sponsors kept insisting that “knowing conduct” was a high scienter requirement; the opponents kept howling that “knowing conduct” is a nonexistent scienter standard because online services always “know” their conduct.

The Manager’s Amendment revises the language to read “knowingly assisting, supporting, or facilitating a violation.” I hope this change will lead courts to interpret “knowingly” as a high scienter requirement, i.e., the defendant must know that its assistance, support or facilitation constituted a violation. If that’s what happens, this is a helpful change. However, it would have been better if the statute had been even more explicit that “knowing” applied to the legal violation.

Even so, the scope of a new crime of “knowingly facilitating” sex trafficking, and how that would apply to online services publishing third party content, isn’t clear. I’m not sure what steps, if any, online services will take to uniquely mitigate this risk.

How will online services respond to SESTA? 

Now that SESTA’s new liability are all correlated with the federal crime, I expect many online services will not materially change their behavior if SESTA passes. After all, most online services never get close to sex trafficking promotions, and they can deal with stray sex trafficking promotions when they get “knowledge.” (This probably leads to a notice-and-takedown scheme, with all of its downsides, but most services probably already follow that practice for sex trafficking promotions). Or, if an online service finds that users are regularly bringing in unwanted sex trafficking promotions, it can build a more robust content moderation process then.

The bigger services likely already have deployed significant efforts to prevent sex trafficking promotions, and they may double-down on those efforts post-SESTA. The bigger services have legitimate reasons to fear how the state AGs might misuse SESTA’s provisions (recall Mississippi AG Jim Hood’s lawless investigation of Google, done with the encouragement of the entertainment industry), and it’s also possible they will face civil lawsuits from individual victims over stray content they somehow missed. These risks will increase their costs of doing business, but maybe the bigger services can afford those.

SESTA will almost certainly materially change the behavior of smaller online services that sex traffickers could use to promote victims. This could include online classified ad sites, online dating sites, and many others. Those sites will almost certainly feel like they face an existential risk from litigation, and they may (perhaps legitimately) fear their criminal exposure. Thus, I would expect those sites to build new and aggressive content moderation practices, or if it’s too costly to do so (or they fear the risks remain too high), to exit the industry.

SESTA will further encourage litigation against Backpage and perhaps other venues for online prostitution ads. There probably is no saving Backpage at this point anyway.

In a post-SESTA world, online services will more aggressively use automated filters to remove all sex trafficking promotions and anything that might resemble such promotions. In light of the high stakes for making mistakes, I expect we’ll see significant over-filtering of legitimate content. Combined with other ways that online services will feel compelled or coerced to adopt broad filtering, over time we should expect that the machines will munch a wide range of legal and socially beneficial content–all done automatically, with no due process, and with no recourse on the part of filtered speakers.

Why SESTA remains bad policy

If most online services don’t change their behavior post-SESTA, perhaps the Manager’s Amendment to SESTA reduces the bill’s existential threat to the Internet. However, SESTA remains bad policy on many fronts. This post has already mentioned a number of problems with the Manager’s Amendment draft. Let me summarize other objections we’ve raised in prior posts that still apply to the Manager’s Amendment:

* SESTA’s real target is Backpage, and federal criminal law (both the SAVE Act and other existing crimes) already covers Backpage without any changes to Section 230. The DOJ is already conducting a grand jury investigation of Backpage in Phoenix, presumably based on those existing laws. Furthermore, pending civil cases against Backpage may have greater success based on the evidence revealed in the Senate investigation report of Backpage; and California’s pending criminal prosecution against Backpage’s executives shows that Section 230 does not create an impenetrable shield against state prosecutions. All told, it seems quite likely that existing law restricts Backpage despite Section 230, so Congress’ most prudent course would be to let those developments play out before making major changes to one of its greatest legislative success stories of the past quarter-century.

* If the concern is the DOJ’s slow enforcement of existing laws, additional modifications to Section 230 aren’t needed. If it’s a resource constraint problem, that can be fixed with money, not statutory amendments.

* The Manager’s Amendment blunts the Moderator’s Dilemma because it correlates defendant knowledge with the knowledge required for a federal crime that isn’t covered by Section 230 anyway. Still, the knowledge-based standards in the federal crime, combined with the crime’s expansion, do heighten the risks of a Moderator’s Dilemma. Thus, it would not be surprising to see some smaller and less-brand-conscious services dial down their moderation efforts, which could counterproductively lead to an increase in net sex trafficking promotions.

* After SESTA’s changes to Section 230, it’s likely other victim advocacy groups will queue up before Congress wanting similar treatment. Given Congress’ prevailing hostility to Internet companies, it’s possible SESTA will break open the regulatory floodgates and Congress will turn Section 230 into Swiss cheese where every victim advocacy group gets their “justice.”

* Most importantly, we have no reason to believe that SESTA will actually improve the fate of sex trafficking victims, and we have several reasons to believe it will actually make their circumstances worse by making victims harder to rescue and perhaps exposing them to more dangerous physical conditions. There are many ways Congress can productively assist sex trafficking victims other than SESTA.

Some other concerns: the retroactivity provision probably is unconstitutional. Also, a point I haven’t blogged: a civil damages remedy for sex trafficking victims against online services creates a race among victims. The first successful plaintiffs might deplete the defendants’ funds available for other victims with subsequent legitimate claims, creating a more uneven system for compensating victims than the existing federal criminal provision for victim restitution.

Procedurally, what happens next?

On Friday, shortly following the announcement of the Manager’s Amendment, the Internet Association announced that it was now supporting, not opposing, SESTA. Some folks in the opponents’ community accused IA of selling out and expressed frustration with IA’s flip.

However, IA’s move was completely understandable. The Senate Commerce Committee scheduled a markup for Wednesday. SESTA was guaranteed to pass the Senate Commerce Committee in the markup with or without changes. As a result, once the markup got scheduled, the opponents lost most of their remaining leverage (not that they had much leverage in the face of 36 Senators co-sponsoring the bill). The IA presumably felt that the Manager’s Amendment had smoothed the roughest edges of SESTA and sufficiently protected its members’ interests, so it cut the best deal it could. At that point, flipping on the bill made sense. Publicly opposing SESTA had spurred many headlines and “think pieces” about how Internet companies enable sex traffickers and other bad guys. The IA and its members don’t regain any goodwill through the flip, but they do reduce further erosion of goodwill–a much-needed step as Congress has turbocharged its Silicon Valley bashing.

Meanwhile, based on the brokered deal, I expect additional new cosponsors to SESTA will be announced. This should put the number of cosponsors nearer to a majority of the Senate. With the removal of a primary industry opponent, all undecided Senators will view the brokered deal as having resolved the matter, so any remaining opposition is surely unlikely to slow down the bill in any meaningful way.

There is still a chance for helpful amendments at the markup, but the odds are low, and any further changes are likely to be minor. I am submitting a response to Questions for the Record (asked by Sen. Cortez Masto) that will propose a specific amendment to the Manager’s Amendment, although the chance of its adoption is de minimis. As indicated, a committee report might provide some additional helpful language of near-zero consequence.

The only remaining hitch is how Sen. McConnell handles Sen. Wyden’s objections to SESTA. If Sen. Wyden places a hold on the bill, the Senate can’t approve the bill by unanimous consent, and any Senate floor time used to overcome the hold will come at the expense of other Senate priorities. It’s possible (but unlikely) that Sen. Wyden will not place hold (or lift it). Otherwise, Sen. McConnell will have to decide when he’s ready to allocate floor time to this. There is so much work the Senate must get done, but I doubt Sen. McConnell will defer a floor vote for too long given the lengthy co-sponsor list.

Once SESTA passes the Senate, the main question will be what happens to the Wagner bill in the House? The Wagner bill is more pernicious than SESTA, and Rep. Wagner may be less receptive to compromises than the SESTA sponsors. The most likely options include:

* Rep. Wagner acquiesces to the Senate-approved SESTA, in which case the bill probably will pass the House rapidly.

* Rep. Wagner doubles down on her bill, which passes the House without conforming to SESTA. I’m not sure what happens then–if that will require a conference between the House and Senate or if other deals will be struck.

* Rep. Wagner doubles down on her bill but can’t make progress quickly enough, leaving the bill unpassed this session. Given that Rep. Wagner has 170 cosponsors in the House, this seems unlikely, but who knows.

If a bill is going to pass both chambers, SESTA is superior to the Wagner bill in its current form. So to me the biggest risk is the second option, where there remains a chance that the Wagner bill’s extra perniciousness ends up getting into the final draft.

More SESTA-Related Posts:

Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post)
Another SESTA Linkwrap (Week of October 30)
Recent SESTA Developments (A Linkwrap)
Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (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

US Court Protects Google From Canadian Court’s Delisting Order–Google v. Equustek 0

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]

Datalink allegedly misappropriated Equustek’s trade secrets to develop competitive products. Equustek sued Datalink in Canadian courts and obtained various court orders. The Datalink principal fled Canada and can’t be found.

Equustek requested that Google delist Datalink from its search results. Google said no, but after Equustek obtained a Canadian injunction against Datalink, Google removed 300 Datalink search results from Google.ca. However, Google did not delist Datalink in its other global search indexes. Equustek then obtained a Canadian court order requiring Google to globally delist Datalink. Google complied but appealed. The Canadian Supreme Court affirmed the global delisting order.

With no further moves to make in Canada, Google sued in the US for “a declaratory judgment that the Canadian court’s order cannot be enforced in the United States and an order enjoining that enforcement.” Equustek did not make a proper appearance in the case, leaving Google’s request uncontested. On Thursday, the district court granted Google’s injunction request.

Google raised First Amendment, Section 230, and international comity objections to the Canadian court order. The district court only discusses Section 230. The court treats this as an easy Section 230 case:

  • Google provides an interactive computer service. Cites to O’Kroley, Parker, Gonzalez.
  • Datalink is a third party “information content provider” to Google. The court says: “Google’s search engine helps users discover and access content on third-party websites, but it does not ‘provide’ that content within the meaning of Section 230.” Cite to O’Kroley.
  • The Canadian court order treats Google as the publisher of Datalink’s content. The court says: “a claim treats an intermediary as a publisher when it requires the intermediary to remove third-party content.” Cite to Barnes. Thus, the “Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.”

Having found that Section 230 means Google is likely to prevail on the legal merits, the court grants Google’s requests because:

Google is harmed because the Canadian order restricts activity that Section 230 protects. In addition, the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law….

An injunction would also serve the public interest. Congress recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting user-generated content….

The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites. By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet

HONK

 

What’s Next?

The district court ruling is not surprising because it’s basically a default judgment. The real question is what, if anything, this court’s ruling means. The short answer is: I don’t know.

The most likely scenario is that Google will proffer this court ruling to the Canadian courts to demonstrate how the Canadian court order establishes a conflicts with the law of other countries. What happens after that isn’t clear to me. Equustek can raise challenges to Section 230 (which it didn’t do in the US court) in a renewed Canadian court proceeding, so the entire US law question could be relitigated there. Perhaps the US ruling will prompt Canadian courts to recognize the error of their prior rulings. Or perhaps Canadian courts to shrug their shoulders about what a US court says.

If the Canadian courts don’t loosen their injunctions against Google, Google probably won’t ignore the Canadian court order and rely on the US court order. After all, the Canadian courts can still punish Google in Canada, unlike a smaller start-up that might lack assets or people in Canada. So long as the Canadian court order remains in effect and Google has a physical footprint in Canada, a US court order purporting to protect Google probably  won’t protect it.

An unlikely scenario is that Equustek appeals this ruling to the Ninth Circuit. After all, they didn’t properly challenge the case yet, so why would they show up now?

In all of these circumstances, it’s unlikely that this US court ruling will be the final word in the matter.

Implications

This case implicates one of the most venerable and crucial questions in Internet law: because Internet companies operate across many geographic jurisdictions with different legal rules, can every single one of those geographic jurisdictions dictate the content standards for the rest of the globe?

Perhaps you aren’t sympathetic to Google because of the trade secret angle. Perhaps Equustek could win a trade secret misappropriation case under the laws of other geographic jurisdictions. However, assume for a moment that different jurisdictions have different rules for trade secret protections. The Canadian court ruling suggests that Equustek could find a jurisdiction–any jurisdiction–that recognizes its trade secret claim and then use a court order from that jurisdiction to globally scrub content, even if the other jurisdictions would not have recognized Equustek’s claim.

And once we step away from trade secrets and look at other types of regulated content where the legal rules vary substantially by jurisdiction–say, pornography or defamation–the strategic stakes of this case become even clearer. If every plaintiff can go to a country with the most restrictive law and get a court ruling under that country’s laws that dictates what content is available across the globe, then the Internet of the future will reflect the most restrictive laws around the globe–a very different Internet than the Internet we love today.

This is not a hypothetical concern. The same policy questions are raised by Europe’s “right to be forgotten,” which lets EU residents scrub certain types of search results. Initially, Google offered to scrub RTBF-targeted search results in its EU indexes but not in other indexes. Then, under pressure from the EU, Google offered to filter the results seen by EU residents, even if they voluntarily access a non-EU search index (i.e., if an EU resident goes to Google.com, the results they see from Google.com will remove the RTBF-targeted links). France has taken the position that Google’s latest solution still isn’t good enough;; it wants Google to remove the targeted links globally, from all search indexes. In other words, France’s vision would allow countries with more restrictive laws to determine the content seen in countries where the links are legal under local law.

Bush internetEven if the Canadian global delisting order and the France RTBF overreach ultimately fail, notice how far we’ve come from the circa-1990s global utopian vision of the Internet. The best-case outcome that’s still obtainable is that, due to variations in local law, the search indexes in different countries look different from each other. Indeed, most Internet companies now do localized versions of their service both for legal and non-legal (cultural and linguistic) reasons. Increasingly, the “Internet” in country A looks quite different from the “Internet” in countries B-Z. There is, in fact, no single “Internet” any more. We already live in a world with lots of different “Internets.” The social ramifications of the Internet’s fragmentation into the Internets remain to be seen.

Case citation: Google LLC v. Equustek Solutions Inc., 2017 WL 5000834 (N.D. Cal. Nov. 2, 2017)


Source: Eric Goldman Legal

Another Human Trafficking Expert Raises Concerns About SESTA (Guest Blog Post) 0

By guest blogger Nyssa P. Chopra

drudge sirenI’ve been an advocate of anti-human trafficking initiatives since I first became involved with the issue when I worked at the U.S. Embassy in New Delhi in the Bureau of International Narcotics and Law Enforcement. In addition to contributing to the annual Department of State Trafficking in Persons (TIP) Report, I worked with local anti-trafficking organizations to train community vigilant groups to spot and report trafficking across state lines and to set up rehabilitation centers for victims. From there, I focused my dissertation on the economics of human trafficking during my Master’s at the London School of Economics and honed my understanding of the role of the law in combatting human trafficking during law school. Currently, in an effort to push for responsible travel, I’m exploring ways in which the global hospitality and travel industry can coordinate initiatives with private advocacy groups and governments to combat the problem.

Upon first glance, when I saw the latest bill—Stop Enabling Sex Traffickers Act (SESTA)—make its way through Congress, I was glad that human trafficking was finally receiving the level of attention that it warrants. But upon delving deeper into the language and implications of the bill, I found SESTA to be overly broad and much more detrimental than helpful to the anti-human trafficking movement. To be frank, I’m surprised at the level of support that it has received, especially from anti-human trafficking groups and organizations. I will continue to follow its developments, but from what I have seen and read so far, I have a number of legal and policy concerns about its current structure.

Our current Internet setup is a complex system of online intermediaries with user-generated content—web hosting providers, social media platforms, news websites—all of which we use to speak out and communicate with each other. The main reason we’re able to enjoy a free flow of ideas is because of Section 230 of the Communications Decency Act of 1996—a law that shields platforms from certain types of liability for their users’ speech. Without those protections, most online intermediaries would not exist in their current form; the risk of liability (and the cost of litigation) would simply be too high. However, while Section 230 limits civil liability, an important thing to note is that it is not a carte blanche for online service providers; platforms still can be held accountable for violations of federal criminal laws by its users.

Under SESTA, online service providers would be held accountable for both civil and criminal liability, which in turn, would likely make online intermediaries rethink their platforms and reassess how people communicate on their sites. Aside from the serious free speech issues, it would also stifle innovation and competition and put small businesses in peril, as big tech giants such as Facebook and Google would enjoy a huge advantage—smaller platforms would not have the resources and funds to handle the inevitable litigation and heavier caseload.

This is only one such scenario; SESTA could also lead to online intermediaries employing a system that automates the filtering of users’ speech. When platforms rely too heavily on automated filtering, it almost always results in some voices being silenced. And the most marginalized voices in society, including victims looking for help online can be the first to disappear. Machines should not be trusted as the final arbiters of online speech, but many online communities would have little choice but to mitigate the risk that SESTA would pose by investing heavily in policing their members’ speech.

In addition, I believe that SESTA may force bad actors to get more clever with how they market and advertise online. Currently, due to their wide accessibility and visibility, websites such as Backpage that have been deemed to be problematic and facilitate human trafficking transactions have enabled individuals and nonprofits to find and recover family members and have served as a resource to identify and rescue victims. As a result, SESTA is more likely to eliminate a crucial lifeline of trafficking victims and less likely to stop traffickers from carrying out their illegal activities. If it’s not Backpage, then they’ll find another channel—one that is much less visible and would make it much harder to find victims.

If SESTA was truly effective in helping those marginalized voices and combating the issue (I haven’t seen any evidence to support its positive contribution to the anti-human trafficking movement), then a discussion about balancing free speech interests with fundamental human rights could be a fruitful one, and I would absolutely support it. But as the bill stands today, it doesn’t help victims, and in many cases, hurts victims, making it a bad policy. So while I appreciate the spirit of SESTA, I question its efficacy in combating the issue and believe it will do more harm than good.

More SESTA-Related Posts:

Another SESTA Linkwrap (Week of October 30)
Recent SESTA Developments (A Linkwrap)
Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (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

Another SESTA Linkwrap (Week of October 30) 0

drudge sirenI doubt I’ll do weekly updates on SESTA, but I had enough new developments since last week’s linkwrap to do another.

* On Friday, Communications Daily (in “Thune Sees Broadband Infrastructure as Top Senate Commerce Telecom Priority for Rest of 2017”) reported that Sen. Thune would prefer not to markup SESTA if the backroom discussions will produce “something negotiated that will have broad bipartisan support.” The article also quotes a GOP telecom lobbyist as saying that if SESTA went to the Senate floor now, it would pass with at least 85 votes.

More procedural details in Roll Call: “Sex Trafficking Bill Would Narrow Protections for Internet Companies.” Sen. Udall “said he was weighing an amendment to ensure a liability shield for so-called Good Samaritans who take affirmative steps to root out content related to sex trafficking.”

* Op-ed from Sen. Portman in Wired, “How Federal Law Protects Online Sex Traffickers.” A few “high”lights with my reactions:

– “The Communications Decency Act should not protect sex traffickers who prey on the most innocent and vulnerable among us.” Section 230 has never applied to federal criminal prosecutions, and we await the results of the Phoenix federal grand jury investigation of Backpage.

– “in August, a Sacramento judge threw out pimping charges against Backpage because of the liability protections afforded by this 1996 law.” That’s true but highly misleading. That ruling also allowed state law money laundering charges against Backpage’s executives to proceed.

– “It will protect good tech actors while targeting rogue online traffickers like Backpage.” I have yet to find any company who qualifies as a “good tech actor” who believes SESTA will “protect” them.

– “my Senate colleagues and I carefully crafted this legislation to remove immunity only for websites that can be proven to have intentionally facilitated online sex trafficking.” As I explained in my Senate testimony, despite its “careful crafting,” the bill will reinstate a Moderator’s Dilemma (do nothing and avoid liability, or try to police and accept liability for all failures) that we have not had in the Internet community for over 2 decades.

– “There are already exemptions in the Communications Decency Act’s liability protections for intellectual property violations that exist without undermining the fundamental intentions of the law.” That’s a true statement but highly misleading. Congress backfilled Section 230’s IP exception with the notice-and-takedown scheme of the DMCA, and trademark law has a similar common law notice-and-takedown rule. If Congress wants to create an analogous notice-and-takedown scheme for sex trafficking promotions, I think that could lead to productive discussions. Otherwise, the comparison between SESTA and the IP analogy is misleading, For more on why “just one more exception” to Section 230 can undermine the whole scheme, see this article.

* Daphne Keller, SESTA and the Teachings of Intermediary Liability:

SESTA makes bad policy choices. It would give OSPs reason to remove lawful speech in some cases, and turn a blind eye to illegal and dangerous activity in others. That outcome – unnecessarily chilling lawful speech without effectively achieving Congress’s valid goals – will make the law vulnerable to First Amendment challenges. SESTA is also remarkably badly drafted. Lawyers who have worked on it for months can’t agree on what its snarl of cross-referenced provisions actually means. Each side thinks the other is being disingenuous. But the bill is incredibly hard to parse, so the disagreements may be sincere…. if Congress wants content taken down, there are better ways to do it. If SESTA passes as currently drafted, real-world businesses will be back in the Internet of 1995: unsure of their obligations, and legally incentivized to avoid dealing with unlawful content at all

Also:

SESTA effectively says that sex trafficking content belongs in this “worst of the worst” category, alongside child pornography. As a result OSPs would remove it with no hesitation or procedural constraints. Putting sex trafficking content in this category clearly meets the first, “danger” criterion. There are few graver or more imminent dangers than the ongoing sexual exploitation of vulnerable and underage people. The second, “know it when they see it” criterion is harder. For child pornography images, nearly everything a legal decision-maker needs to know is on the screen in front of them. Content promoting sex trafficking is different. It requires the reviewer to draw conclusions about real-world, off-screen behavior based on online speech. Sometimes that will be easy; other times it will be very hard – for example, because of ambiguous language. The other important distinction is that discussions of sex trafficking, unlike child pornography, can be legal or illegal depending on the context. Identical words or images can have entirely different significance in different places.

* Op-ed from David Barnes, “Congress Should Not Gut Internet Protections In a Rush to Do Something About Sex Trafficking.” “This bill is certainly not the only way, or even the best way, to stop online sex trafficking or to obtain the justice that victims deserve.”

* Op-ed from Christina Pesavento and Ashley Baker: “No Safe Harbor: Congress Threatens Free Speech Online.” “Thanks to a sex trafficking bill, the Internet’s days as the bullhorn of democracy may be limited.”

* Op-ed from Dan King: “Sex Trafficking Can Be Stopped Without Destroying Free Speech and Innovation.” “The notion that law enforcement does not have the ability to prosecute sex trafficking cases because of CDA is flat out erroneous.”

* Watch this short video from “Protect 230”

More SESTA-Related Posts:

Recent SESTA Developments (A Linkwrap)
Section 230’s Applicability to ‘Inconsistent’ State Laws (Guest Blog Post)
An Overview of Congress’ Pending Legislation on Sex Trafficking (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