More Aftermath from the ‘Worst of Both Worlds FOSTA’

drudge-siren-300x300In my prior post on the Worst of Both Worlds FOSTA, I enumerated three problematic developments that occurred before the bill was signed:

* the federal government shut down Backpage without relying on FOSTA’s new provisions.

* two different civil lawsuits against Backpage survived motions to dismiss without FOSTA’s evisceration of Section 230.

* several legitimate services anticipatorily shut down to reduce their liability risk, such as Craigslist’s personals section.

Now that FOSTA is in effect, lets take a look at some new problematic “high”lights:

1) Backpage Redux. Barely 24 hours after the law came into effect, Backpage and its CEO Carl Ferrer “pleaded guilty to conspiracy to facilitate prostitution using a facility in interstate or foreign commerce and to engage in money laundering.” These crimes were all available pre-FOSTA and, as mentioned in my prior post, were never limited by Section 230 because the immunity has never applied to federal criminal prosecutions. Ferrer’s plea agreement makes it clear that virtually all of his assets will be forfeited and put into the victim restitution fund. By flipping on them, presumably Ferrer has placed the other charged defendants in a tenuous position. (Game theorists will note the classic prisoner’s dilemma playing out here).

In a related but less-publicized move, Backpage, Ferrer and others pleaded guilty to money laundering in TexasA library of prosecution materials. Sorry to point out the obvious, but this guilty plea came even before the President signed FOSTA and was based on a state crime (money laundering) that had been available to state AGs all along without requiring any modification to Section 230.

These two developments provide yet more proof that the Worst of Both Worlds FOSTA was never necessary to shut down Backpage, punish its operators, or provide financial recourse to sex trafficking victims.

2) Facebook Redux. Facebook showed its “commitment” to protect the Internet industry when it caused the Internet Association to flip on SESTA and later blared out its support for the Worst of Both Worlds FOSTA. Obviously Facebook feels like it can handle its risk exposure, even if smaller sites can’t. But is Facebook really as risk-free as it hopes? Techdirt explains how a Facebook group–that Facebook knows about–might be construed as facilitating sex trafficking. Techdirt: FOSTA/SESTA Passed Thanks To Facebook’s Vocal Support; New Article Suggests Facebook Is Violating FOSTA/SESTA

3) CloudFlare’s Collateral Censorship. A new social networking site for sex workers, called “Switter,” sprung up in response to Backpage’s demise. But CloudFlare terminated services to Switter due to its concerns about FOSTA liability. As Techdirt explains:

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

Proof that the Worst of Both Worlds FOSTA has censorious effects, probably by design.

4) DC Redux. According to Politico, Sen. Lindsey Graham is proposing a “task force” to examine Section 230. My guess it that the task force won’t view its charge as trying to figure out how and why Section 230 works and what Congress could do to strengthen its immunity. I’m sure anyone who loves Section 230 has already gotten the point that Congress is doomed to undermine one of its greatest tech policy achievements ever, but let this “task force” be your daily snapshot of the train-wreck-in-motion.

Meanwhile. Sen. Cruz continues to publicly misrepresent Section 230. He’s still claiming that Section 230 only protects neutral public forums, even though his office surely knows better at this point. The EFF and Lawfare properly explain his errors, but at this point it seems more likely that the “error” is intentional.

5) Some other links:

* Vox’s “Today, Explained” had a good podcast on how SESTA/FOSTA hurt the Internet and won’t help sex trafficking victims. It includes an interview with repeat guest blogger Alex Levy.

* A new research study says: “Politicians and moral crusaders insist we need sweeping new laws to combat a so-called sex trafficking crisis. But their claims are easily disproven by the facts.”

* Technology Liberation Front: SESTA’s First Amendment Problems: 3 ideas of what a legal challenge might look like

* The Ringer:

 “I’m an antitrafficking advocate, but I’m also someone who relies upon evidence-based research,” said criminologist Kimberly Mehlman-Orozco, who wrote a book on sex trafficking in the United States. “People who think that FOSTA and SESTA are going to be used to combat sex trafficking or reduce sex trafficking, which is how the bills have been sold, that they are being misled. There’s absolutely no empirical research or theoretical evidence to suggest that it’s going to reduce it.”

6) Finally, join us for COMO at Scale, the DC version of our popular Santa Clara event on content moderation. May 7 in Washington DC. Registration used to be invite-only, but now it’s open-to-the-public, so register ASAP. I expect the event will sell out.

More SESTA/FOSTA-Related Posts:

‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration
Backpage Loses Another Section 230 Motion (Again Without SESTA/FOSTA)–Florida Abolitionists v. Backpage
District Court Ruling Highlights Congress’ Hastiness To Pass ‘Worst of Both Worlds FOSTA’– Doe 1 v. Backpage
More on the Unconstitutional Retroactivity of ‘Worst of Both Worlds FOSTA’ (Guest Blog Post)
Senate Passes ‘Worst of Both Worlds FOSTA’ (Linkwrap)
Why FOSTA’s Restriction on Prostitution Promotion Violates the First Amendment (Guest Blog Post)
SESTA’s Sponsors Still Don’t Understand Section 230 (As They Are About to Eviscerate It)
Can the ‘Worst of Both Worlds FOSTA’ Be Salvaged? Perhaps…and You Can Help (URGENT CALL TO ACTION)
Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)
What’s New With SESTA/FOSTA (January 17, 2018 edition)
New House Bill (Substitute FOSTA) Has More Promising Approach to Regulating Online Sex Trafficking
* My testimony at the House Energy & Commerce Committee: Balancing Section 230 and Anti-Sex Trafficking Initiatives
How SESTA Undermines Section 230’s Good Samaritan Provisions
Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill
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