More Aftermath from the ‘Worst of Both Worlds FOSTA’

April 23, 2018 · by Eric Goldman · in Content Regulation, Derivative Liability, Marketing

In 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 Texas. A 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:

More Aftermath from the ‘Worst of Both Worlds FOSTA’

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