EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law(eff.org)
eff.org
EFF Sues to Invalidate FOSTA, an Unconstitutional Internet Censorship Law
https://www.eff.org/deeplinks/2018/06/eff-sues-invalidate-fosta-unconstitutional-internet-censorship-law
31 comments
I will never understand why the USA, while producing so much porn, is so strict with sex. Here prostitution is legal and you can buy sex toys at the drug store.
It's because our politicians are hypocrites who use morality as prestige, all the while engaging in the very behavior they decry.
I guess there's also less of a paper-trail when prostitution is illegal, and girls are less willing to come forward about beatings and nonpayment, so...
I guess there's also less of a paper-trail when prostitution is illegal, and girls are less willing to come forward about beatings and nonpayment, so...
You can buy a small selection of sex toys at the drug store in America: https://www.cvs.com/shop/sexual-health/vibrators-adult-toys
The word 'promote' used in the sense 'to contribute to the progress or growth of' is inappropriate in connection with prostitution, since it has been around quite a while.
Therefore, I conclude, use of the word 'promote' is a Victorian dog-whistle.
Therefore, I conclude, use of the word 'promote' is a Victorian dog-whistle.
Many legal sex workers have been hit by the takedown of sites like Backpage(1) and its sister cracker(2). These sites were the primary sources to advertise or find their services. It was heavily used by independent sex workers.
1. https://www.thecut.com/2018/04/7-sex-workers-on-what-it-mean...
2. https://www.news.com.au/lifestyle/relationships/sex/sex-work...
1. https://www.thecut.com/2018/04/7-sex-workers-on-what-it-mean...
2. https://www.news.com.au/lifestyle/relationships/sex/sex-work...
rablo(4)
Yes, and they will have to "suffer" so that the scum owners of backpage who actively promoted child sex trafficking can no longer make millions selling children.
If platforms keep child sex traffickers off their sites they won't get touched. If they don't they will get shut down.
It really isn't that hard.
If platforms keep child sex traffickers off their sites they won't get touched. If they don't they will get shut down.
It really isn't that hard.
But FOSTA doesn't make it illegal for sites to promote child trafficking specifically, it makes it illegal for a site to promote any prostitution.
Here is the text: https://www.congress.gov/115/bills/hr1865/BILLS-115hr1865enr...
FOSTA does make it explicitly illegal to operate a web site "with the intent to promote or facilitate the prostitution of another person" ... but that is not new. It has always been illegal to intentionally promote prostitution.
The EFF said the same thing arguing against FOSTA: that there was no need for a new criminal statute because existing criminal statutes already covered the same conduct.
The substantive change with FOSTA is: "CIVIL RECOVERY.—Any person injured by reason of a violation of section 2421A(b) may recover damages and reasonable attorneys’ fees in an action before any appropriate United States district court."
Before prostitutes couldn't sue a pimp because they were engaged in illegal activity (same reason a drug user can't sue a drug dealer). Criminalizing prostitution creates a legal immunity for pimps.
FOSTA changes that and now anyone who gets pimped on any of these escort sites can sue the owners. That is what will put them out of business. Not any police action.
A lot of liars out there spreading false info about how this is "bad for sex workers" ... but pimps are good at lying so that should be no surprise.
FOSTA does make it explicitly illegal to operate a web site "with the intent to promote or facilitate the prostitution of another person" ... but that is not new. It has always been illegal to intentionally promote prostitution.
The EFF said the same thing arguing against FOSTA: that there was no need for a new criminal statute because existing criminal statutes already covered the same conduct.
The substantive change with FOSTA is: "CIVIL RECOVERY.—Any person injured by reason of a violation of section 2421A(b) may recover damages and reasonable attorneys’ fees in an action before any appropriate United States district court."
Before prostitutes couldn't sue a pimp because they were engaged in illegal activity (same reason a drug user can't sue a drug dealer). Criminalizing prostitution creates a legal immunity for pimps.
FOSTA changes that and now anyone who gets pimped on any of these escort sites can sue the owners. That is what will put them out of business. Not any police action.
A lot of liars out there spreading false info about how this is "bad for sex workers" ... but pimps are good at lying so that should be no surprise.
You didn't really answer the question posed to you by OP. You just crowed about how awesome it is to be able to sue backpage now.
This doesn't specifically target child-prostitution. It easily could have, but doesn't. It targets all sex-work, which does have consequences.
So if the (I'm assuming) tiny fraction of child-prostitution is moved elsewhere (probably pimping them on the streets) then the grown adult sex-workers are now being forced to maybe go work for a pimp in dangerous situations vs. being independent and in control of when, where, and who they work with.
This law could very easily have been worded to make these companies responsible for any child-prostitution, but let adults be responsible for themselves.
This doesn't specifically target child-prostitution. It easily could have, but doesn't. It targets all sex-work, which does have consequences.
So if the (I'm assuming) tiny fraction of child-prostitution is moved elsewhere (probably pimping them on the streets) then the grown adult sex-workers are now being forced to maybe go work for a pimp in dangerous situations vs. being independent and in control of when, where, and who they work with.
This law could very easily have been worded to make these companies responsible for any child-prostitution, but let adults be responsible for themselves.
> You didn't really answer the question posed to you by OP
I very specifically answered that first. Intentional promotion of prostitution has always been criminal. FOSTA didn't change that, which the EFF repeatedly said themselves when they were arguing against it.
I very specifically answered that first. Intentional promotion of prostitution has always been criminal. FOSTA didn't change that, which the EFF repeatedly said themselves when they were arguing against it.
Where did you get this information?
This link does not suggest that the owners of backpage were actively promoting child sex trafficking or selling children.
The closest connection is about them automatically stripping suggestive words like "lolita" and "young" from online ads without blocking the advertisement. It's a bit of doublethink to suggest that removing suggestive words from an advertisement is facilitation.
Where they got into more trouble was in the manual editing process. They moved from outright deleting all posts that offend to editing advertisements to remove 'sex for money' (not child sex) references because it was potentially driving their user base elsewhere and ultimately not effective in educating their usersabout what specifically in the post was not acceptable. So, greed, really. But the manual review process was not the same as the automatic removal of questionable phrases (such as the ones picked up by the media and politicians to further an agenda).
Their moderators were not people actively seeking to enable the sale of children because the company would see increased advertising revenue. While they were greedy on the sex-for-money front, it's a huge unsupported leap to suggest actively enabling the sale of children. I'm sure if they saw some children for sale they would have acted appropriately. The same report that mentions the automatic filters advises that Backpage itself reports cases of suspected child exploitation to the National Center for Missing and Exploited Children and that in some months Backpage has transmitted hundreds of such reports to NCMEC.
Which, of course, I am sure they are no longer sending these hundreds of reports per month since they were effectively shut down. Maybe there will be some other system with a moderation process that is likely to draw in and report offenders. But we'll probably kill that too.
So, if the crime is facilitating prostitution, sure, they are guilty. Intent is clearly there. Knowingly facilitating child sex trafficking? No, the only indicator is automatic removal of phrases from posts. That's the fabrication extrapolated from scant evidence which was used to build support for encroaching legislation.
The source of data for the hyperbolic claims of child sex trafficking was this 2017 Senate report if you'd like to review and make your own conclusions:
https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report...
The closest connection is about them automatically stripping suggestive words like "lolita" and "young" from online ads without blocking the advertisement. It's a bit of doublethink to suggest that removing suggestive words from an advertisement is facilitation.
Where they got into more trouble was in the manual editing process. They moved from outright deleting all posts that offend to editing advertisements to remove 'sex for money' (not child sex) references because it was potentially driving their user base elsewhere and ultimately not effective in educating their usersabout what specifically in the post was not acceptable. So, greed, really. But the manual review process was not the same as the automatic removal of questionable phrases (such as the ones picked up by the media and politicians to further an agenda).
Their moderators were not people actively seeking to enable the sale of children because the company would see increased advertising revenue. While they were greedy on the sex-for-money front, it's a huge unsupported leap to suggest actively enabling the sale of children. I'm sure if they saw some children for sale they would have acted appropriately. The same report that mentions the automatic filters advises that Backpage itself reports cases of suspected child exploitation to the National Center for Missing and Exploited Children and that in some months Backpage has transmitted hundreds of such reports to NCMEC.
Which, of course, I am sure they are no longer sending these hundreds of reports per month since they were effectively shut down. Maybe there will be some other system with a moderation process that is likely to draw in and report offenders. But we'll probably kill that too.
So, if the crime is facilitating prostitution, sure, they are guilty. Intent is clearly there. Knowingly facilitating child sex trafficking? No, the only indicator is automatic removal of phrases from posts. That's the fabrication extrapolated from scant evidence which was used to build support for encroaching legislation.
The source of data for the hyperbolic claims of child sex trafficking was this 2017 Senate report if you'd like to review and make your own conclusions:
https://www.hsgac.senate.gov/imo/media/doc/Backpage%20Report...
IANAL, but do the plaintiffs actually have standing to sue given that they have not been charged under the act? The problems seem to stem from uncertainty and ambiguity in how people think the law may be enforced, not based on any actual enforcement.
Good question. (I am a lawyer but this is not legal advice.)
As recently as 2014, the Supreme Court held that “a plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.’” Susan B. Anthony List v. Driehaus, 573 U.S. __ (citing Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979)).
This is but the latest in a consistent thread of case law holding that an actual criminal indictment need not be made against a plaintiff for them to have standing. As long as there’s a credible threat of enforcement and they can show intent to commit the proscribed act, that’s sufficient to satisfy the standing requirement.
As recently as 2014, the Supreme Court held that “a plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.’” Susan B. Anthony List v. Driehaus, 573 U.S. __ (citing Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979)).
This is but the latest in a consistent thread of case law holding that an actual criminal indictment need not be made against a plaintiff for them to have standing. As long as there’s a credible threat of enforcement and they can show intent to commit the proscribed act, that’s sufficient to satisfy the standing requirement.
For the First Amendment in particular there's also a concept of a "chilling effect" on speech, which can make it a bit easier to establish standing.
That's one of the reasons for the broad array of plaintiffs. Maybe some of them don't have standing, but as long as one of them does, they can continue.
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Unfortunately the point you bring up is likely valid. It will probably get tossed due to lack of standing.