Shockingly, NY Times Columnist Is Totally Clueless About The Internet

Failures

from the do-your-fucking-research,-kristof dept

It’s fairly stunning just how often the NY Times Opinion pages are just… wrong. Nick Kristof, one of the most well known of the NYT’s columnists, has spent years, talking about stopping sex trafficking — but with a history of being fast and loose with facts, and showing either little regard for verifying what he’s saying, or a poor understanding of the consequences of what he says. I would hope that everyone reading this supports stopping illegal and coerced sex trafficking. But doing so shouldn’t allow making up facts and ignoring how certain superficial actions might make the problems worse. Kristof, in particular, has been targeting Backpage.com for at least five years — but has been caught vastly exaggerating claims about the site to the point of potentially misstating facts entirely (such as claiming Backpage existed before it actually did, and that it operated in cities where it did not). Kristof also has a history of being laughably credulous when someone comes along with a good story about sex trafficking, even when it’s mostly made up. He’s been accused of having a bit of a savior complex.

And that’s on display with his recent, extraordinarily confused piece attacking Google for not supporting SESTA — the “Stop Enabling Sex Traffickers Act.” As we’ve explained in great detail, SESTA (despite its name) is unlikely to stop any sex trafficking and likely would make the problem worse. That’s because the whole point of SESTA is to undermine CDA 230, the part of the law that creates incentives for tech companies to work with authorities and to help them track down sex trafficking on their sites. What the bill would do is make websites owners now both civilly and criminally liable for knowledge of any sex trafficking activity on their sites — meaning that any proactive efforts by them to monitor their websites may be seen as “knowledge,” thus making them liable. The new incentives will be not to help out at all — not to monitor and not to search.

Meanwhile, by putting such a massive target on websites, it will inevitably be abused. We see how people abuse the DMCA to take down content all the time — now add in the possibility of sites getting hit with criminal penalties, and you can see how quickly this “tool” will be abused to silence content online.

But, never mind all of that. To Kristof, because the bill says it’s against sex trafficking, and he’s against sex trafficking, it must be good. And, he’s quite sure that the only people against the bill are Google, and that there’s ill-intent there.

Why? Why would Google ally itself with Backpage, which is involved in 73 percent of cases of suspected child sex trafficking in the U.S., which advertised a 13-year-old whose pimp had tattooed his name on her eyelids?

First of all, Kristof is, again, playing fast and loose with the facts if he thinks Google is an “ally” of Backpage. Google has directly come out and said that it believes that Backpage should be criminally prosecuted by the DOJ (remember, CDA 230 does not apply to federal criminal charges).

I want to make our position on this clear. Google believes that Backpage.com can and should be held accountable for its crimes. We strongly applaud the work of the Senate Permanent Subcommittee on Investigations in exposing Backpage’s intentional promotion of child sex trafficking through ads. Based on those findings, Google believes that Backpage.com should be criminally prosecuted by the US Department of Justice for facilitating child sex trafficking, something they can do today without need to amend any laws. And years before the Senate’s investigation and report, we prohibited Backpage from advertising on Google, and we have criticized Backpage publicly.

So, no, Google is not protecting Backpage. Kristof, towards the end of his post, waves off Google’s strong words about Backpage as proof that it has no reason not to support this legislation, without even once grappling with (a) what Google actually says or (b) why Google (and tons of others) would still oppose this legislation as being tremendously damaging. Even if you’re not quite as convinced as Google that Backpage has broken the law (the Senate Report appeared to take a number of Backpage actions completely out of context), to argue that Google is supporting Backpage is clearly just wrong. But, Kristof, having set up his thesis, is going to go for it, no matter how wrong:

The answer has to do with Section 230 of the Communications Decency Act, which protects internet companies like Google (and The New York Times) from lawsuits ? and also protects Backpage. Google seems to have a vague, poorly grounded fear that closing the loophole would open the way to frivolous lawsuits and investigations and lead to a slippery slope that will damage its interests and the freedom of the internet.

“Poorly grounded fear?” That’s just wrong. Kristof seems totally ignorant of issues related to intermediary liability on the internet — an issue that has been studied for quite some time. When you give people tools to put liability on online services for the actions of their users, the tools are abused. Every time. They get abused for censorship. We know this. You don’t have to look any further than the intermediary liability setup we have in the copyright realm, where every year we see millions of false DMCA notices filed just to censor content, and not for any reason having to do with copyright.

How do you think things will turn out when you’re able to not just threaten a website with civil copyright penalties with limited damages, but with potential criminal penalties, through a vaguely worded law where mere “knowledge” can get your entire site in trouble? But again, Kristof doesn’t care.

That impresses few people outside the tech community, for the Stop Enabling Sex Traffickers Act was crafted exceedingly narrowly to target only those intentionally engaged in trafficking children. Some tech companies, including Oracle, have endorsed the bill.

First, this is wrong. Lots of people outside the tech industry have raised concerns — including free speech groups like the ACLU. But, even if it were only the tech community, why wouldn’t you listen to the industry that actually has the experience in understanding how these kinds of laws are regularly abused to silence perfectly legitimate speech and to quash perfectly legitimate services? Wouldn’t their input be valuable? Why does Kristof brush them off? As for the Oracle line — let’s be clear: Oracle and HP are the only “tech” companies that have come out in support of the bill, and neither run online services impacted by CDA 230. It’s completely disingenuous to argue that Oracle represents “tech” when it’s not an internet services provider who would be impacted by changes in CDA 230. Why even listen to them, rather than those who have the actual experience?

And the idea that this was “crafted exceedingly narrowly to only target those intentionally engaged in trafficking children” is just on its face, wrong. First off, the bill doesn’t specifically just target trafficking having to do with children, but I think we can all agree that any trafficking is problematic. The issue is that it doesn’t just punish those “intentionally engaged in trafficking.” It specifically targets any website that is used in a way that “assists, supports or facilitates” trafficking and has broadly defined “knowledge” that the site is used that way. That’s… not intentionally engaging in trafficking. It’s much, much, much broader. Let’s say you’re Airbnb. SESTA makes it much riskier to be in business. If Airbnb hears that someone used Airbnb to traffic someone (which, unfortunately, is impossible to detect), now it risks criminal and civil lawsuits, because it “knew” of conduct that “assisted, supported, or facilitated.” This is even if Airbnb doesn’t know which accounts were used for this.

?This bill only impacts bad-actor websites,? notes Yiota Souras, general counsel at the National Center for Missing & Exploited Children. ?You don?t inadvertently traffic a child.?

This is… just so misguided and wrong it’s almost laughable. No, of course, no one “inadvertently” traffics a child. But that’s not what this law is about. The law is about blaming websites if one of its users does anything related to trafficking someone via its services. And, that creates massive potential liability. Say someone wants to get our little site in trouble? They could just go and post links in comments to sex trafficking ads, and suddenly we’re facing potential criminal charges. We’re not Google. We can’t hire staff to read every possible comment and recognize whether or not they’re linking to illegal activity. And despite what some will say, even Google can’t possibly hire enough staff, or get its AI good enough, to parse everything it touches to see whether or not it’s linked to illegal activity. But under the current setup of SESTA, this leads you to a risk of massive liability.

The concerns here are real — and Kristof is either ignorant or being purposely blind to the arguments here.

Senator Rob Portman, an Ohio Republican and lead sponsor of the legislation, says that it would clearly never affect Google. ?We?ve tried to work with them,? Portman told me

This is laughable. The bill would impact basically every site, including Google. After all, it was just a few years ago, that a Mississippi Attorney General went on an illegal fishing expedition against Google — put together by the MPAA’s lawyers — demanding all sorts of information from Google. Based on what? Well, Jim Hood said that because he could use Google to find sex trafficking ads, Google was breaking the law. A court tossed this out, and the two sides eventually settled, but under SESTA, Hood would now be able to go after Google criminally if any search turned up trafficking. And how the hell is Google supposed to make sure that no one ever uses any of its properties for sex trafficking?

But, never mind the facts. Kristof insists there’s no issue here because the bill’s sponsor says there’s no issue.

Senator Richard Blumenthal of Connecticut, the lead Democratic sponsor, adds that ?it?s truly baffling and perplexing? that some in the tech world (Google above all) have dug in their heels. He says the sex trafficking bill gathered 28 co-sponsors within a week, making it a rare piece of bipartisan legislation that seems likely to become law.

It’s truly baffling that those with actual experience and knowledge in how weakening intermediary liability laws creates all sorts of problems are now telling you there will be all sorts of problems? And, really, isn’t this the same Senator Richard Blumenthal who, when he was Connecticut Attorney General, was famous for campaigning against CDA 230 and blaming tech for basically everything? He’s not exactly a credible voice. But, Kristof has his story and he apparently seems willing to believe anyone who says anything, no matter how little is based on facts, if it supports his version of the story.

I write about this issue because I?m haunted by the kids I?ve met who were pretty much enslaved, right here in the U.S. in the 21st century. I?ve been writing about Backpage for more than five years, ever since I came across a terrified 13-year-old girl, Baby Face, who had been forced to work for a pimp in New York City.

And you’ve been repeatedly called out and corrected for factual errors in your writing on this issue. Because you’re quick to believe things that later turn out to be wrong. And, yes, stories like ones you’ve come across are awful and we should be doing everything possible to stop such exploitation. But blaming internet companies doesn’t help. You blame the actual criminals, the ones trafficking the children. But, Kristof is clear: he doesn’t care about blaming those actually responsible. He wants to take down internet companies. Because reasons.

But it?s not enough to send a few pimps to prison; we should also go after online marketplaces like Backpage. That?s why Google?s myopia is so sad.

Why? Why should we blame internet companies because people use them for illegal activity? What’s wrong with blaming the people who actually break the laws? CDA 230, as currently written, encourages platforms to cooperate with law enforcement and to take down content. SESTA would undermine that and stop companies from working with law enforcement, because any admission of “knowledge” can be used against them.

In response to my inquiries, Google issued a statement: ?Backpage acted criminally to facilitate child sex trafficking, and we strongly urge the Department of Justice to prosecute them for their egregious crimes against children. ? Google will continue to work alongside Congress, antitrafficking organizations and other technology companies to combat sex trafficking.?

Fine, but then why oppose legislation? Why use intermediaries to defend Backpage? To me, all this reflects the tech world?s moral blindness about what?s happening outside its bubble.

Why oppose it? Because the legislation is a nuclear bomb on how the internet works and a direct attack on free speech. It’s not “moral blindness” at all. In fact, SESTA would be a moral disaster because it removes incentives for companies to help stop trafficking, out of fear of creating “knowledge” for which they’ll face civil and criminal lawsuits. This has been explained to Kristof — and, in fact, people told him this on Twitter after his article was published, and he insisted that no one other than Google seemed concerned with SESTA.

That’s also not true. As we’ve seen with our own letter, dozens of tech companies are worried about it. And we’ve talked to many more who admitted to us that they, too, think this is an awful law, but they’re afraid of grandstanding folks like Kristof publishing misleading screeds against them falsely saying that worrying about SESTA is the same as supporting sex trafficking.

Incredibly, when an actual human trafficking expert and researcher, Dr. Kim Mehlman-Orozco, decided to challenge Kristof and point out that his opinions aren’t backed up by the actual research, Kristof dismissed her views and data as not being as valuable as the few anecdotes he has.

Even if Google were right that ending the immunity for Backpage might lead to an occasional frivolous lawsuit, life requires some balancing.

Uh, what? This is basically Kristof first admitting that he’s wrong that it won’t impact sites other than Backpage, and then saying “meh, no biggie.” But that’s… really fucked up. We’re not talking about the “occasional frivolous lawsuit.” From what we’ve seen with the DMCA, it seems likely that there would be a rash of dangerous lawsuits, and companies being forced out of business — not to mention tons of frivolous threats that never get to the lawsuit stage, but lead to widespread censorship just out of the fear of possible liability. How can Kristof just shrug that off as “balance”?

For example, websites must try to remove copyrighted material if it?s posted on their sites. That?s a constraint on internet freedom that makes sense, and it hasn?t proved a slippery slope. If we?re willing to protect copyrights, shouldn?t we do as much to protect children sold for sex?

HOLY SHIT. And here we learn that Kristof is so completely out of his depth that it’s not even funny. Seriously, someone educate Nick Kristof a little on how the DMCA has been abused to silence speech, to kill companies and to create huge problems for free speech online? And that’s with much lower penalties than what we’re talking about with SESTA.

I asked Nacole, a mom in Washington State whose daughter was trafficked on Backpage at the age of 15, what she would say to Google.

?Our children can?t be the cost of doing business,? she said. Google understands so much about business, but apparently not that.

Ah, always close with a “for the children!” argument after making a bunch of statements that are just devoid of facts. No one is fighting this for the support of “business.” They’re doing it because they understand how important intermediary liability protections are against undermining how the internet works and how free speech works online. Kristof has a long history of not caring about facts so long as he gets a good story about just how concerned he is about trafficking. We’re all concerned about trafficking — but passing a law that will make the problem worse just to appear like you’re a hero is not the solution, Nick.

Filed Under: cda 230, intermediary liability, nick kristof, sesta