Court Shows SESTA Is Not Needed: Says Backpage Can Lose Its CDA 230 Protections If It Helped Create Illegal Content

from the congress-couldn't-have-waited? dept

So, in the lead up to Congress’ vote on FOSTA/SESTA, we pointed out that a court in Boston was likely on the verge of ruling that Backpage was not protected by CDA 230, because of actions the site had taken. Considering that the publicly stated rationale by nearly everyone supporting FOSTA/SESTA was that it was needed to get around Backpage’s CDA 230 protections, we wondered why Congress couldn’t wait to see how the court ruled. Yesterday, the Judge indeed ruled against a motion to dismiss in the case of one of the plaintiffs (there were three in the case), saying that enough evidence had been presented to get around CDA 230 for the time being. The key issue: whether or not Backpage directly changed the content, making it the content creator, rather than just the service provider. Backpage has insisted that it didn’t make any changes (that a user did), but the court finds that there’s enough evidence to reject the motion to dismiss, and to allow the case the move forward:

The allegation in the complaint that ?Backpage . . . redrafted the advertisement [of Jane Doe No. 3] to suggest she was an adult? suffices to allow the complaint by Jane Doe No. 3 to proceed in the face of the CDA?s statutory immunity, which does not protect service providers when they create content, FTC v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009). The further discovery, while not clarifying greatly the matter, provides, drawing all reasonable inferences in Plaintiff?s favor, a modicum of support for the notion that Backpage has substantively changed an ad, which then supports the information and belief allegation in the complaint. Thus, the CDA poses no bar to Jane Doe No. 3?s claim at this stage of the proceedings.

On the other two plaintiffs, the court notes that merely classifying posts or removing terms that imply illegality doesn’t rid the site of its protections:

Plaintiffs allege Backpage revised one advertisement regarding Jane Doe No. 1 by not only deleting words but also by adding a word…. The advertisement initially included the language ?Latina shorty,? which was later replaced by the words ?Exotic Latina.? Id. Backpage?s alleged alteration of the advertisement of Jane Doe is not enough to transform Backpage from an internet service provider to the creator, even in part, of this advertisement?s content. ?Shorty?, per the Complaint, signaled, in slang, a young girl. Id. The deletion of this word did not create content. Backpage added the word ?exotic.? The Complaint does not allege that the word exotic carries any special or slang meaning. Ordinarily, the word means from a foreign or distant land. In the circumstances of this advertisement as described in the complaint, the addition of the word exotic is in the nature of editorial change rather than content creation, as its addition does not substantively alter the meaning of the already provided identifier ?Latina.?

Separately, the court feels the need to point out that what happened to the plaintiffs, as alleged in the complaint, is horrifying. But that does not mean it’s appropriate to blame a tool that was used by those doling out the horrific practices.

Finally, crediting the truthfulness of the Plaintiffs? allegations, as the law instructs, the Complaint describes unimaginable sexual abuse, repeatedly endured by each Plaintiff…. Nothing about the Court?s ruling as to Jane No. 1 or No. 2 diminishes the harm suffered by each of these woman. The ruling addresses only the applicable civil law. 47 U.S.C. § 230(e)(1) (creating immunity from civil and state criminal law, but not federal criminal law).

For FOSTA/SESTA supporters, they will almost certainly use this as vindication for why FOSTA/SESTA is still necessary. After all, the court ruled against them here. But, in actuality, it should again show why CDA 230 is properly calibrated. If Backpage had no direct role in creating the content, why does it make sense to hold it liable? What happened to the plaintiffs here does sound horrible. But the proper people to go after are those who actually engaged in trafficking the women. And nothing has ever stopped law enforcement from doing that. Similarly, as the court notes, Backpage is still subject to federal criminal law (and multiple reports have said that a federal grand jury has been empaneled to investigate the company’s operations).

And, finally, the fact that Jane Doe 3 is able to proceed shows that Backpage can potentially face liability if there is evidence to suggest that it had a real hand in creating the content, thus removing the liability. This ruling, once again, shows why FOSTA/SESTA was not needed to get at the original stated goal of those pushing for it. Indeed, as law professor Eric Goldman points out, this ruling makes it plain that the logic behind FOSTA/SESTA is “nonsensical.”

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Comments on “Court Shows SESTA Is Not Needed: Says Backpage Can Lose Its CDA 230 Protections If It Helped Create Illegal Content”

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Anonymous Coward says:

Re: Doesn't mean what you think it means


That’s not actually true.

Yes, the court affirmed that Backpage lost it’s 230 immunity because it did something legal. In that respect, no, nothing has changed.

However, the passage of SESTA/FOSTA DID change something. Before, as long as the provider itself did nothing illegal, they could not be held responsible for the illegal things their users did while using their platform.

NOW, what SESTA does is change that to the platforms can be held liable for the actions of their users, and it’s retroactive. Meaning that even if what they did was technically legal before, they have no chance to change to keep in compliance with the law because the law changed to make past actions that were legal, now illegal and prosecutable. That is generally not allowed under the Constitution.

If that was the case, you could make a law raising the drinking age to 30 and even if a 25 year old never touched a drop of alcohol since the law passed, they could still be prosecuted because they had done it in the past. That’s messed up.

Uriel-238 (profile) says:

Re: Re: Re:2 In other words, the US Constitution has failed

Only once we admit that we’ve reverted to a feudal caste system where aristocrats and yeomen can abuse us peons at whim and with impunity can we move forward.

Only then can we say we don’t want this, and reform the system.

Are we ready to do that? Or are we still pretending the US is the land of the free?

Because I’m seeing a whole lot of not-freedom going on.

Bergman (profile) says:

Re: Re: Doesn't mean what you think it means

As badly written as SESTA/FOSTA generally is, I have to wonder — did Congress specify that it applies only to the internet?

If not, then the fact that the US government owns the public infrastructure of the US would mean that the US government is civilly liable for any human trafficking that happens using that infrastructure.

Or put another way, if you spray paint “For a good time call Jenny @ 867-5309” across the front of the capitol building, the ability to physically do so even if there are rules against doing so means Congress facilitated the message, and by scrubbing it off they demonstrate knowledge of it.

Uriel-238 (profile) says:

Re: Re: Re: You don't know me but you make me so happy.

Yes. The cure for this (and all overreaching laws) is prosecutorial discretion (discussed on TechDirt and by Popehat at length). Essentially the CFAA incriminates everyone who uses the internet, enough to imprison them for longer than some murder charges. But DAs only use it to put away bad people.

The definition of bad people may, of course vary. Widely.

Uriel-238 (profile) says:

Re: Ignoring the actual arguments for SESTA

Oh, do elaborate! What actual arguments are there for SESTA? Be specific.

It’s been discussed at length that there are no good arguments for SESTA. Not one. Masnick went as far as petitioning the public to actually present one.

So if there is an actual argument to be made (other than but…Children!), you’re a bit late to the party. Still, please tell us!

Anonymous Coward says:

What exactly has Backpage done wrong here?

Social media accounts created on Facebook, reddit, G+, Twitter, Periscope, YouTube, and so forth have had listings from people soliciting illegal activity. Given the unreasonable expectation to have complete control over third parties visiting the site it’s reasonable to consider a website acting in good faith provided they take effort to remove illegal activity once brought to their attention.

In prior court filings, the case against Backpage document reasonable steps to remove illegal activity once brought to their attention.

This continues to strike me as a case where Backpage has been singled out for harassment for other reasons.

Is this a shake down attempt on the company?

Simply a convenient opportunity to push for tools that create environment that allow DA’s to legally shake down companies going forward?

There is a power play here that has nothing to do with legality.

Anonymous Coward says:

Re: Re:

Going after Backpage is simply the easiest way for a DA to appear tough on crime and for civil lawyers to earn some money riding on the tailcoats of other peoples misery.

Backpage is easier to find and prosecute than the actual criminals.

Backpage, unlike most criminals, actually has money that can easily be taken from them should they lose a case.

ECA (profile) says:


1 site is always mentioned..
1 site is being accused??
1 site that that COULD NOT be responsible for ????? children stolen, kidnapped, Runways, ????

I think its interesting that the numbers that have been posted around the net, would have 1-6 Children from Every state, Missing EVERY DAY of the week..

Others have looked at the numbers and Cut them down, because of Lax police paper work, Child returns home, Is Found Dead/alive, Family problems and for Many other reasons.. into the Hundreds per year.. AND almost ALLLL of them are runaways, Not kidnapping.. That end up on the streets with NO WHERE TO GO..of those that were into Drugs already, that had Home problems and Ran to the Drug groups they were involved with..

Does anyone see a REAL problem here??
NO PLACE to run, where do they end up?? No location for runaways?? NO protection for RUNAWAYS..
NO drug intervention.. And service that HELP only last 1-2 months..and DONT involve the WHOLE FAMILY..
Family intervention..SOLVE the problem where it STARTED..

We have service from the state that are willing to TAKE SMALL CHILDREN from families, because of problems…but NOTHING for Adult children/teens..

I find it of interest, that there ARE MANY service supplied by the Gov…BUT where are they?? Answer: “NOT HERE”. we pay for allot of services that Cant/Wont do anything. We have Other groups, that you Can hardly find, that can help, but “NOT HERE”, is a good location.

Another Difficulty, is those taking advantage OF the situation..

WE cant stop what they say is happening, but we CAN assist it from Continuing.. We have allot of groups taking money to HELP PEOPLE, but Little is really getting TO THESE PEOPLE..

Call it SOCIALISM…but can you guess HOW things used to be..WE HELPED EACH OTHER..and it didnt Cost you Much. It COULD solve allot of problems..

That One Guy (profile) says:

Is that a rhetorical question?

Considering that the publicly stated rationale by nearly everyone supporting FOSTA/SESTA was that it was needed to get around Backpage’s CDA 230 protections, we wondered why Congress couldn’t wait to see how the court ruled.

Because, much like having to actually provide evidence rather than just empty emotional appeals, doing so would have completely undercut the justification they used for the bill. If the site they held up as an example of why Something Must Be Done was actually held liable under the current law, then the question becomes ‘exactly why do you need a new law again?’

They didn’t wait because they didn’t care, and waiting would have undermined an already phantom justification all the more.

Sok Puppette (profile) says:

"Actions the site had ALLEGEDLY taken", please

There are a bunch of people out there pushing the narrative the Backpage created this sort of content, or at least actively edited it. There’s no credible evidence that it ever happened, and a lot of reason to expect that it did not.

The claim showed up in a Senate report… without evidence.

The claim is trumpeted all over media stories… without evidence.

And now you’re repeating it… without evidence.

The judge said that there was a “modicum of support” for the possibility that Backpage had done that, so the plaintiff would have the right to present further evidence and argument.

I’ll happily bet you that no convincing evidence will be forthcoming in this or any other case… because it didn’t happen. All Backpage ever did was refuse to accept ads with certain keywords in them. Period.

Uriel-238 (profile) says:

Re: Backpage "editing" content

I remember posting on Craigslist certain words would flag me with warnings, id est You seem to be selling contraband which you can’t do here. If you mean to be selling this other thing, we recommend you use this word.

During the early reviews, this feature was used to indict Craigslist (and later Backpage) for teaching pimps how to avoid the detection of law enforcement.

So yes, there have been some creative interpretations of the features of these websites.

Uriel-238 (profile) says:

Re: Re: Re: Backpage "editing" content

I’d argue it’s the latter since it’s a feature that is useful to non-pimps and non-clients, in greater numbers by orders of magnitude.

We do seem to like blaming new, disruptive technology for crimes facilitated by it. Like blaming explosives (used for mining and clearing tree stumps) for penetrating bank vaults.

Tim says:

what a joke

what disgusting commentary. You don’t understand why the men who limited the number of child prostitution ads they reported to authorities for financial reasons had any part in this? What about when they removed worded alluding to the trafficked woman being underage instead of the ad? What about when they refused to remove ads featuring missing children when the parents contacted them? What about the 2 girls who were murdered while being trafficked via backpage?

Of course this tone deaf article is written by another tech bro who thinks his personal freedom should come at the expense of vulnerable women and children.

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