Senate's Latest Attack On Backpage Will Be Massively Counterproductive, Create Tremendous Harm

from the this-is-a-bad-approach dept

It’s no secret that there are a bunch of folks in the Senate who really, really, really dislike the fact that the site Backpage has been abused by some users for sex trafficking. They should be happy that through a lot of public pressure, Backpage has shut down its adult section.

For reasons that are not entirely clear, many people seem to blame Section 230 of the CDA for the fact that sex traffickers have used This is… weird and doesn’t make much sense. After all, Section 230 doesn’t apply to federal crimes around sex trafficking. So, if the platform itself is violating the law, the DOJ has the power and every right to go after the platform. Furthermore, as we’ve noted time and time again, these platforms have actually been tremendously helpful in allowing law enforcement to track down those responsible for trafficking and to help victims of trafficking. Still, because of this misplaced focus on CDA 230, earlier today, a bunch of Senators released a counterproductive and dangerous bill that would blow a massive hole through CDA 230, and it’s clearly written 100% to focus on Backpage. Nearly all of the quotes about the bill from the Senate co-sponsors mention Backpage.

And that’s… odd. Because just two years ago, Congress passed, and President Obama signed, another anti-trafficking bill that had provisions that were similarly designed solely to target Backpage. So why aren’t those actually being used if Backpage is such a problem (and, again, the DOJ could easily go after Backpage for violating trafficking laws if it actually did so). It’s especially odd that none of the supporters of this new bill even mention the fact that they passed a similar “kill Backpage” bill just two years ago and no one’s tried to use it.

And even worse, the approach in this new bill, dubbed the Stop Enabling Sex Traffickers Act, will be massively counterproductive to the goal of stopping sex trafficking. While the bill’s supporters claim it is “narrowly focused,” it is anything but that. It opens up a giant hole in CDA 230 — the law that protects internet platforms from being blamed for the actions of their users — saying that if federal sex trafficking violations (which, again, are already NOT covered by CDA 230) are involved, state Attorneys General and private individuals can now sue platforms — especially if the platforms have “knowledge” of how they’re being used for trafficking.

Law professor Eric Goldman has a thorough description of the problems with the bill.

  • what online services will be regulated other than Backpage? The press release accompanying the Senate bill draft references Backpage a half-dozen times. Is this law only about making sure a single company, Backpage, is dead dead dead? Or will the bill reach other online services? If so, who? The most likely answer is that this law potentially implicates every online service that deals with user-generated content, which would make this an unusually wide-ranging bill.
  • what about the SAVE Act, the law (sponsored by Rep. Wagner) that Congress passed in 2015 to kill Backpage? The bill?s press release doesn?t mention the SAVE Act once, even though it was designed to accomplish the same policy goals. Why not? Did Congress misjudge the policy efficacy of that law? Or perhaps it?s too early to judge the SAVE Act?s efficacy? A federal grand jury in Phoenix is considering indicting Backpage or its executives, and the odds are that the SAVE Act would be key ground for such an indictment. So perhaps Congress has already enacted all of the legislation it needs to kill Backpage?? If so, a new and major exclusion to Section 230 would not add any new policy benefits but would come with substantial policy costs.
  • does the elimination of a centralized online prostitution ad venue actually improve the situation for victims of sex trafficking? This is the fundamental policy objective of the bill, but I have yet to see any good evidence demonstrating this outcome. Maybe it?s so intuitive (shut down Backpage, victims are better) that members of Congress don?t expect to see any proof, but this is hardly intuitive to me. We?ve seen over and over again that anti-prostitution regulations redirect the demand for prostitution elsewhere. If this bill accomplishes its goal, where will that demand get redirected, and how will that affect victims? We?ve also seen many successful victim protection efforts by law enforcement using the public ads as leads/evidence. What will happen to those enforcement efforts, and what does that mean for the overall protection of victims?
  • what existing laws will be newly excluded from Section 230, and how will plaintiffs use those laws? I am extremely confident that none of the bill co-sponsors have comprehensively inventoried the existing state laws that will have tenable causes of action against online intermediaries once Section 230?s immunity is lifted. It could be zero laws (unlikely); it could be hundreds or thousands of new laws. Shouldn?t we model these effects before unleashing those laws?
  • I’d argue there are even bigger problems with the bill as well, focused on this: the end result will almost certainly be seriously counterproductive to the goal of ending trafficking. CDA 230 has two provisions that work together in unison: one that protects platforms from liability for actions of their users and a second one that is equally important (but often forgotten) that says that if a platform does moderate content, that moderation does not introduce new liability. The combination of these two provisions actually encourages platforms to monitor and police themselves, without adding a risk of new liability.

    However, this new law completely undermines that. It includes a provision that says “knowing conduct” makes you liable for assisting, supporting or facilitating trafficking. And how might one “know” of such conduct? If you know how your platform is being used. Thus, the end result of this bill would be the exact opposite of what its sponsors are seeking. It will encourage platforms to turn a blind eye to what’s happening on their platform, out of fear that reviewng or moderating content might be used as evidence of “knowledge.” Yikes!

    Even worse, this will undermine a bunch of ongoing projects that the tech industry has put together to help stop trafficking already. If you look at what programs are actually effective, they tend to involve tech companies actively working on solutions and information sharing. But, now, if a tech company works on one of those programs, that could be used as evidence by grandstanding state Attorneys General or trial lawyers as “evidence” of “knowledge” of their platforms facilitating trafficking! Why would any tech company continue working on these effective programs when the “thanks” they’ll end up getting are a bunch of lawsuits?

    And, we’ve already seen years of state AGs grandstanding on issues by blaming tech companies for things their users do, as well as hundreds, if not thousands, of frivolous lawsuits where private individuals and companies sue platforms over actions of their users, all trying to find holes in CDA 230. And this bill opens up a wide one. Just make some halfway credible claim that someone somehow engaged in trafficking uses the platform and voila. The liability for platforms is going to be amazing, and the end result is… what? Backpage has already shut down its adult section, and sex trafficking has just moved elsewhere. The bill doesn’t target the actual perpetrators at all. It will just make them harder to find.

    Tech companies who currently help catch traffickers will now be told not to do that out of a fear of liability. Platforms that already cut off traffickers from using the platform will now have the incentive to turn a blind eye (and certainly not to help law enforcement). And a ton of frivolous lawsuits will likely be filed. And it’s all to “stop” Backpage — a company that has already decided to stop accepting such ads.

    Sex trafficking is a real and serious problem. But this weird sledge hammer approach directed at one particular company — Backpage — is misguided on so many levels. It doesn’t provide the DOJ with any more tools than it already had to go after Backpage, if the company violated the law. It only provides more tools to state AGs and trial lawyers to bring frivolous lawsuits and fishing expeditions against tons of other companies, many of whom have actively helped to attack the problem of trafficking. And, the bill is designed in a way that encourages them to stop helping.

    And make no mistake, those who speak up against this bill will be unfairly attacked with a broad brush, with claims that they’re “supporting” trafficking by opposing this bill. But the opposite is true. This bill will not help stop trafficking. In all likelihood it will make the problem worse.

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    Comments on “Senate's Latest Attack On Backpage Will Be Massively Counterproductive, Create Tremendous Harm”

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    That Anonymous Coward (profile) says:

    Soundbite Legislation

    We need to keep the peons riled up, so we are going to take a problem we claim is huge (despite slim actual evidence) & do SOMETHING!

    Backpage and Craigslist worked with cops to target those who were doing bad things. They didn’t have to, they wanted to. They did everything we could want, but it wasn’t enough to stave off the ‘ZOMG INTERNET PREDATORS!!!’ screeching.

    CL caved, and even with several departments saying this was a stupid thing to do, they went after BackPage.

    We want to hold BackPage liable for all of the wrongs, & we’ll screw with the law to accomplish it.
    I expect these assholes to explain why victims families can’t sue gun makers.
    Explain why robbery victims can’t sue car makers.
    Explain why we can’t sue WalMart because they sold the hoodie the criminal wore.
    Yet they want “victims” to be able to sue BackPage.

    It’s 2017 and we need to accept some uncomfortable truths.
    We have people who have chosen to be sex workers & people who want those services. They are not evil people, just people doing a job. If we stop being hysterical over them, perhaps we could focus on the real problems.

    There are not 3 million trafficked kids brought to each superbowl or other large event.

    “I was trafficked on BackPage, it’s their fault!!!”
    Because they have money I guess.
    Lets gloss over you made really STUPID decisions to hook up with a guy online who wanted to pimp you out.
    Lets gloss over the guy pimped you out & pocketed the cash.
    Lets focus on the big corkboard he put the ads on, ignoring that there are still several mediums they can use to get clients who want to bang underage kids.

    It’s horrible you were pimped out, but that does not & should not make a 3rd party responsible to pay you & if you demand that whats the limit? The hotel chain, the clothing maker, the condom maker, the company that washes the sheets?

    Perhaps if the cops weren’t forced to always be investigating & probing BackPage for anything an AG with higher political goals can try to turn into bad acts, they might enjoy teaming up with BackPage to actually stop the actual criminals.

    We’re to busy trying to stuff everyone into the trafficked victim mold, because we can’t accept someone willingly would exchange sex for money. What we need to do is thin the haystack, legalize the worlds oldest profession & focus on those being forced into the work and those forcing them to do it. Crackdown on the pimps rather than just trying to blame all the ills on BackPage.

    ECA (profile) says:

    Re: Soundbite Legislation

    Its all true..
    But its funny to THINK..
    WHY do this?

    All it does if FORCE something underground, where it is HARDER TO SEE and MODERATE..

    They keep saying that 100,000 Children are taken every year in the USA..
    HOW??, WHERE?? 100,000 kids EACH YEAR in the sex trades?? I really dont see it. Human trafficking?? Shipping out 100,000 Kids IS NOT easy to hide, I WOULD THINK…
    Lots of Small batches sent OUT of country?? that is allot of chances to get caught..
    Private SHIP?? 100,000 kids and FOOD?? DONT THINK SO..

    There is only 1 option..and I HOPE its not happening, that we have ENOUGH KILLERS in this country to get away with 100,000 Murders per year..and NOT find a body..

    WHEN do you consider a child, AN ADULT and can make their OWN CHOICES??
    WHEN did your child NOT believe in YOU, to run off and NOT TELL YOU, what they were doing.

    Next idea going to happen is to TAG/CHIP every child at BIRTH..
    BUT that REALLY only lets you Identify the body..NOT LOCATE THE PERSON..

    ITS FOR THE CHILDREN.. is 1 hell of an excuse, and allot of propaganda.

    The Wanderer (profile) says:

    Re: Soundbite Legislation

    The answer to your various “explain why” questions is simple:

    Because in each of those cases, at the time of sale, there was nothing to indicate what the purchaser intended to do with the thing being purchased, and specifically nothing to indicate that the purchaser intended to engage in crime connected with the purchase.

    When buying a gun, or a car, or a hoodie, you do not need to submit any information indicating what you are going to do with that gun, or car, or hoodie – and even if you did, there’s nothing to induce you to actually tell the truth.

    But when buying an ad, you do need to submit information indicating what purpose that ad will serve for you: the contents of the ad itself.

    (I’m playing somewhat of devil’s advocate, here. I agree with the thrust of the article, and its various arguments, including the long-established ones about “mandating review of user-submitted content before it is posted will lead only to prohibiting all user-submitted content”; it’s just that I believe it’s useful to confront the arguments the other side will actually make, and that includes not overlooking those arguments when constructing your own.)

    That One Guy (profile) says:

    PR time

    So why aren’t those actually being used if Backpage is such a problem (and, again, the DOJ could easily go after Backpage for violating trafficking laws if it actually did so). It’s especially odd that none of the supporters of this new bill even mention the fact that they passed a similar "kill Backpage" bill just two years ago and no one’s tried to use it.

    There’s nothing ‘odd’ about it really. If they mentioned the last bill they’d have to admit that they didn’t seem to get around to using that, placing it pretty firmly in the ‘nothing but PR’ category, and opening up the possibility of someone pointing out that if they didn’t use the last bill, what use is this one going to be?

    I’m guessing this is a mixture of a PR stunt and an attempt to get the various state AG’s to stop whining about how ‘unfair’ it is they can’t sue/threaten sites directly for their own PR efforts.

    Much like similar bills this has nothing to do with actually stopping or even noticeably reducing the problem of trafficking, it’s all about looking like they’re doing something even while they make the problem worse.

    Anonymous Coward says:


    many people seem to blame Section 230 of the CDA for the fact that sex traffickers have used

    The copyright industry will use any underhanded trick or excuse it can to attack Section 230. Everything from "think of the children!" to "terrorism!", whether it makes sense or not, if it fits their agenda.

    Anonymous Coward says:

    Re: Copyright

    >> The copyright industry will use any underhanded trick or excuse it can to attack Section 230. Everything from “think of the children!” to “terrorism!”, whether it makes sense or not, if it fits their agenda.

    You have nailed IT! — “It” being Techdirt’s targeted combination of off-topic and vaguely blame copyright holders for all perceived ills.

    Anonymous Coward says:

    What is meant by "know"? -- What do I mean by "meant" and by "by"? -- "Libertarians" are nothing but a Monty Python skit of de-constructionism.

    “does the elimination of a centralized online prostitution ad venue actually improve the situation for victims of sex trafficking?” — Far more probably than not. The more in the open, it’s NOT the more criminals caught, but the more is normalized and so the more become criminals. Iron law. (A doper group has acronym of “NORMAL” because want their particular currently criminal conduct to become normal.) Criminals ALWAYS want lack of “regulation”. There’s no such thing as a “free market”: the only times that’s approached is when economic criminals FEAR a righteous gov’t. (The latter is what the US had and again needs, but won’t get closer to it if let other criminals run loose, now will we?)

    “This is the fundamental policy objective of the bill, but I have yet to see any good evidence demonstrating this outcome.” — SO? Willfully ignorant solipsism is your argument?

    “now have the incentive to turn a blind eye” — No, they’d have big incentives to actively police. Putting a burden on businesses does not bother me at all! That’s one of their duties in exchange for permission to exist in the first place! If don’t want to take on the responsibilities, they stay out. — And often, it would be better to not have so damn many proto-criminals “innovating” on how to extract money without responsibility.– The Internet has been left UNregulated for too long, and only now are internet businesses being called on to perform JUST LIKE ALL OTHERS.

    Enough of the easy “copy-and-contradict” technique.

    I’ll just point out that I’m right yet again that the whole area WILL be changed, and much for the better, at least to decent folk, not pirates and other criminals.

    ECA (profile) says:

    Any reason??

    Is there any reason to obstruct a resource??

    There are a FEW..
    Forcing things UNDERGROUND, into the OLD WEB(black web)??

    Cutting OFF the head of a Weed does not kill the weed(most times) its NOW underground and still growing..AND you have no way to see it.

    Unless you can GET THE ROOT AND THE WHOLE WEED…you have empty hands..and Soon you MAY have more WEEDS..

    Spray the weed with Grass killer and you kill the grass..also.
    FIND the correct way to kill the WHOLE weed. Dont hide it.

    Anonymous Coward says:

    Masnick is ALWAYS concerned when criminals (or corporations, same thing) might be hampered to not operate in the open.

    Comes through in everything he writes. He has no clue about a decent environment, like all city dwellers thinks he’s tough and realistic because inured to organized crime (especially corporate) and drugs. Actually, the city weakens you in every way. You have no good baseline, and are not fit to tell other people what’s moral. — Neither am I! Look to common law, or try to avoid the loony parts of stone-age religions.

    coward (anon) (profile) says:

    Same underlying problem as always

    The underlying problem is that prostitution, sex trafficking, and human trafficking are not interchangeable. There is plenty of human trafficking that is not sex related (maids, nannies, etc) and plenty of prostitutes who are not trafficked (college girls trying to pay their tuition for example. One could make the argument that they were forced into it by circumstances, but they weren’t trafficked). Yes, there is some amount (I doubt anything near the 100,000 number that is bandied about) of children, young women, and adults who are forced into prostitution, and we should do everything we can to put an end to that. But lumping all three into the same group does no one any good (except the politicians who get to appear holier-than-thou and get some publicity, and then ultimately get caught with a prostitute or are arrested for child porn). Let’s focus more on the trafficked part and less on the sex part.

    That Anonymous Coward (profile) says:

    Re: Same underlying problem as always

    It is a human failing.
    We like things to have easy to understand labels, and eventually stretch the label to silly proportions to avoid revisiting the topic.

    We’ll spent years & millions to figure out who is to blame, before putting a cent into making sure it doesn’t happen again.

    Sex work should not be criminal between consenting adults.
    Despite the prohibitions & laws against it… its still happening.
    Tell the moral majority (who far to often get caught in sweeps of hookers & johns) to get off the high horse & move on.

    If it was legal, it would be easy to eliminate those ads from looking for those pimping unwitting kids.

    Sex trafficking is a horrible thing, but the hysteria & “reports” quoting made up numbers to support more made up numbers just gets people freaking out & looking to assign the blame.

    Human trafficking often happens to those who want a better life and for some reason think the US is the place to find it.

    While all of this money & effort has been wasted chasing BackPage, have they passed a SINGLE law increasing punishments for men who lure children into prostitution? Have they added an enhancement to the charges if they used drugs to keep control over the child?
    No, they waved the wand and it is all BackPages fault and if we can break them the problem will be solved.

    Sadly voters lap this crap up which means we can expect more meaningless moral panic attacks that avoid addressing the problems.

    Legal_Savvy says:

    Backpage doing more harm than good

    I’m constantly flabbergasted by writers, bloggers, and commenters who say that Backpage is working to combat the issue. They site to the fact that BP, at times sends info regarding child victims, and that law enforcement get on the site to set up stings to rescue children.
    But here is the problem: Backpage facilitates MORE child sex trafficking than 1) they report, and 2) law enforcement can rescue. Also, keep in mind that while this is happening (the reporting and sting operations) each child that will be rescued still must endure days/weeks/months/years of trafficking – which entails being forced to be raped by countless men a day and being beaten by pimps each night. So how can you say this is helpful? Backpage’s very existence facilitates the rape and violence that occurs to each child on the site.
    And if you look at the report submitted by the Senate subcommittee last January, it is clearly evident that Backpage knew it was facilitating child sex trafficking and it was complicit in helping pimps traffick kids. Backpage is in no way an innocent actor.

    That One Guy (profile) says:

    Re: Because there are no other avenues for such activity besides them

    So how can you say this is helpful? Backpage’s very existence facilitates the rape and violence that occurs to each child on the site.

    Along with the kicking of puppies, making soda go flat and the sun exploding every other day. The subject itself is no laughing matter to be sure, but your excessive and over the top statements there certainly are.

    A site knows in general that someone is using it for illegal activity is not good enough to say that they are responsible for it; you might as well say that the phone and mail companies are responsible for the crimes committed by people using their services because they know that people are doing so.

    Now if you can point to one or more examples where the people running Backpage knew about specific instances of illegal activity and didn’t do anything about them then you might have a case to say that they are facilitating such activities, but until then your claims are just as baseless as the others attacking the site, and just as likely to help stop the problem(which is to say, not at all).

    keithzg (profile) says:

    Surprising lack of Kamala Harris

    I’m a bit surprised to find that Kamala Harris isn’t part of this bipartisan bill, at least not as per the linked-to senator’s announcement page, considering how much she went after Backpage as California’s DA. Hell, she even slapped new charges on them in the interregnum between between winning the senatorial election and actually taking office:

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