Politicians Who Said SESTA Was Needed To Takedown Backpage Claim Victory Over Backpage Takedown… Without SESTA

from the say-what-now? dept

From the very beginning of SESTA and FOSTA, its backers kept insisting that the bill was necessary to takedown Backpage.com. Indeed, Senator Rob Portman, in announcing SESTA, entitled his press release “Senators Introduce Bipartisan Legislation to Hold Backpage Accountable.” And he’s spent the past six months pointing to Backpage as the reason we absolutely needed SESTA. At launch, his quote was the following:

For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us.

Except, as we pointed out multiple times, that’s not at all what courts have said. What they’ve said is that CDA 230 immunizes the site from certain types of liability. But as two recent courts — not to mention the DOJ shutting down Backpage on Friday — have made clear, nothing in CDA 230 immunizes Backpage from illegal activity that it directly engaged in.

So you’d think that maybe, just maybe, Senator Portman would recognize that SESTA was a giant unnecessary boondoggle that puts a ton of people and speech at risk. But, nope. Instead, he’s released a statement praising the action and pretending that SESTA will “hold online sex traffickers accountable.”

?I?m pleased that Congress has taken additional steps by passing my SESTA legislation to let sex trafficking victims seek justice and allow state and local law enforcement to swiftly prosecute websites that violate federal sex trafficking laws. This bipartisan measure will make it easier to hold online sex traffickers accountable, and I look forward to seeing President Trump sign this bill into law next week.?

Except not a single thing in SESTA holds online sex traffickers accountable. Indeed, it does the exact opposite of that, in that it makes it that much more difficult for law enforcement to track down actual sex traffickers. Prior to SESTA, websites (including Backpage) frequently worked with law enforcement to help them track down those using their platforms for illegal activity. Under SESTA, no site will be willing to assist law enforcement in such a manner, because doing so will provide evidence of “knowledge” and thus, potentially, criminal liability. This sweeps the problem of sex trafficking under the rug, which might make Senator Portman feel better, but does nothing to tackle the actual problem, and makes it that much more difficult to find and prosecute actual traffickers, let alone find and rescue victims held against their will.

Still, at least Senator Portman acknowledges that SESTA/FOSTA has not been signed into law yet. That basic fact apparently escaped Representative Mimi Walters, who provided the amendment that attached SESTA to FOSTA in the House. She actually took to Twitter to claim that Backpage was shut down because of her amendment:

That’s pretty incredible, considering her bill hasn’t been signed into law yet. You would think that a Representative would know that her own bill wasn’t a law yet, wouldn’t you? Or does Congress not work that way? Anyway, SESTA/FOSTA is not the law yet, and it clearly wasn’t used to take down Backpage. And, of course, what was Rep. Walters’ reason for pushing SESTA in the first place? The need to take down Backpage. So, not only is she not admitting that her law (which she said was necessary) was not, in fact, necessary, she’s now living in a fantasy world where her law must have helped, despite it not yet being a law.

Can we elect better people to Congress please?

Then we have Senator John McCain. His wife has been at the forefront of the anti-Backpage campaign for many years. Indeed, many people I spoke to on Capitol Hill said that it was John and Cindy McCain’s support for SESTA that made the bill viable in the first place. So it’s no surprise that Cindy McCain was quick to tell the media how good the seizure is, calling it a “good day.” And then the Senator put out the following statement celebrating the takedown, but oddly insisting it proves why SESTA was needed.

The seizure of the malicious sex marketplace Backpage.com marks an important step forward in the fight against human trafficking. This builds on the historic effort in Congress to reform the law that for too long has protected websites like Backpage from being held liable for enabling the sale of young women and children. Today?s action sends a strong message to Backpage and any other company facilitating online sex trafficking that they will be held accountable for these horrific crimes.

But, considering that Backpage was taken down prior to SESTA becoming law, how can McCain honestly claim that the law protected Backpage from being held liable? It did not. It only protected them from liability for actions of third parties. It has never protected the site from liability for its own actions. And the takedown on Friday proved that. So it’s quite bizarre for McCain to pretend otherwise.

Either way, all of this is yet more evidence that SESTA was never truly about going after Backpage. That was all just a convenient excuse to gut Section 230 of the CDA and pave the way for changing some of the fundamental open parts of the internet, closing them off and putting up more and more gatekeepers. That those who supported SESTA and insisted it was necessary to take down Backpage are now pretending otherwise just underlines that fact.

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Comments on “Politicians Who Said SESTA Was Needed To Takedown Backpage Claim Victory Over Backpage Takedown… Without SESTA”

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44 Comments
Anonymous Coward says:

"just a convenient excuse to gut Section 230 of the CDA" - GOOD!

Corporations are NOT to be immune to common law requirements.

NOR are Corporations LICENSED as censors of “natural” persons. As the recent Sandvig decision showed, I’ve been right all along that businesses providing a forum thereby concede, NOT gain, rights. They are PUBLIC forums, where The Public has First Amendment Right just as elsewhere, so long as within common law. — That means Techdirt too.

Anyhoo, all you’ve got is more whining over a loss, trying to claim you were right all along, when in fact, you advocate on basis of CDA 230 that corporations can allow or disallow anything, which is simply WRONG, Google-boy.

Anonymous Coward says:

Re: "just a convenient excuse to gut Section 230 of the CDA" - GOOD!

You argument is confused, as section 230 allows companies to give users freedom of speech, while removing it and making them liable for user posts makes it more likely that they will censor their users, or not allow comments.

That One Guy (profile) says:

Re: Re: 'Cutting off your nose to spite your neighbor' but worse

Yeah, it never stops being funny watching someone who complains about how big companies are bad and sites should be required to host their anonymous drivel unaltered and always visible cheering on something that empowers large companies, consolidating power to the larger platforms, and makes it far more likely that sites will require people to create accounts and provide personally identifying information in order to post.

If they were worth taking serious the cognitive dissonance would be rather stunning, but as it is it’s just more entertainment from TD’s most dedicated fan/stalker.

Anonymous Coward says:

Re: Re: Re: 'Cutting off your nose to spite your neighbor' but worse

The really hilariously ironic thing: the only reason he comes and spouts his little free speech tirades here every day is that almost any other blog actually would have started deleting his comments or dropped the banhammer by now. (Assuming any other blog even allowed instant true-anonymous comments with no signup or email address required – which they don’t.)

Stephen T. Stone (profile) says:

Re: "just a convenient excuse to gut Section 230 of the CDA" - GOOD!

They are PUBLIC forums, where The Public has First Amendment Right just as elsewhere, so long as within common law.

Pray tell, what law was it that gave you the unquestioned and irrefutable right to force Techdirt into being a platform for your speech? You can keep trotting out that whole “common law” schtick as if anyone here but you cares about SovCit lingo, but until such time as you can cite an actual federal law or statute that gives you the unfettered ability to force a privately-owned platform into hosting your speech, you have no argument. (Insults are not an argument.)

The Wanderer (profile) says:

Re: Re:

I think the position he’s attempting to argue is something like “any forum which is open to posting (or other relevant participation) from members of the general public, rather than only from members of a defined group, is by definition a public forum, and it’s long-established that the First Amendment strictly limits the placing of restrictions on speech in any public forum”.

(Examples of a “members of a defined group only” forum would include e.g. a company-internal mailing list, or a discussion-forum Website where only people with accounts can post and you only get an account with the direct approval of the site’s moderators, or suchlike.)

Where that fails is in the fact that “public forum” as the term is used in First Amendment jurisprudence has its own definition, which is quite distinct from the one which he appears to subscribe to (and which I’ve attempted to paraphrase above); the mismatch between those definitions renders the conclusions he reaches invalid.

That One Guy (profile) says:

Not just good, SUPERNATURALLY good

Ah but you see it is thanks to the bill that they were able to take Backpage down. The bill is so effective at combating sex trafficking that it not only retroactively applies to the past it influences the future.

Clearly had the bill not been voted on the current laws that were used against the site would never have been able to be used, because reasons; it was only thanks to SESTA that the foul scourge that is Backpage was able to be brought to it’s knees, and sex trafficking completely eliminated.

ACCC says:

Re: Re: Re:

So if you do not vote what right do you have to say what goes on in this country? NO vote NO bitching, that is what is wrong with today’s special little flowers, they all think they can complain all they want but they do not want to have a say in our elections. This is what is wrong with our country.

AGAIN NO VOTE NO BITCHING.

And if you do not like the 2 evils then get out there and run yourself you special little flower.

The Wanderer (profile) says:

Re: Re: Re:

Er… where do you get “I didn’t vote at all” from “I didn’t vote in any of the current officeholders”?

I think it’s considerably more likely that the person voted for someone else, who then lost the election.

(Another possibility is that the person wasn’t eligible to vote, but that seems unlikely in this instance.)

That One Guy (profile) says:

Re: Re: Re: Heads I win, tails you lose

Along those lines if you voted for the candidate that lost then you’ve no right to bitch either, as clearly you’re in the minority. The majority has spoken, so sit down, shut up and deal with it.

Voted for the candidate that won? Hey, you voted for them, you deserve what they do.

Voted for the candidate that lost? More people wanted the other candidate, so clearly you’re in the minority and it would be absurd to claim you get to dictate what the majority does.

Didn’t vote for either? Not allowed to complain at all, it doesn’t matter that you didn’t want either candidate, you should have voted for one of them or run yourself(which is of course a trivial undertaking and something anyone can do).

Anonymous Coward says:

Re: Re: Re:2 Re:

Wow, your all special little flowers. Jumping on a guy for voicing his/her opinion.

I was raised that if you do not vote, you have no right to complain.

do you believe you live in a democracy? If you do , you must vote to be part of it, if you do not vote, then you are saying that whatever the rest of the country decides if fine with you.

So what way is it?

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:3 Re:

Whether one votes or not, whether one performs military service or not, whether one does or doesn’t do something else that some pinhead thinks should be required, just being a citizen allows for all the freedoms the Constitution provides, including being able to speak their minds.

Even you snowflake.

Anonymous Coward says:

Re: Re: Re:5 Re:

Ummm this entire thread is you saying "the system works! You must participate dutifully in the election process! Do as you are told – I do, because that’s how I was raised! If you don’t follow the rules, you forfeit any right to complain."

Point being: I don’t think you understand what "sheeple" means. Which is kinda fine because it’s a dumb term that only morons use, but given that you should just not use it at all instead of using it in a hilariously incorrect fashion. Grab a dictionary – or a mirror.

The Wanderer (profile) says:

Re: Re: Re:2

The best way to express that is to vote for a write-in candidate, even (possibly especially) a joke or otherwise nonexistent candidate. Just not voting at all means you aren’t counted towards the total which defines “majority”, so both of the candidates have an easier time winning, and it looks as if they both have more support (as a fraction of the electorate) than they actually do.

(My brother refuses to vote not because he doesn’t want to support any of the candidates in the race – although he often may not – but because he refuses to legitimize the system, which he considers to be so badly broken as to be irreparable from within, by participating in it.)

JoeCool (profile) says:

Re: Re: Re:3 Re:

A big problem with electronic voting isn’t that there’s no paper trail, even though that IS a big problem, it’s that there’s no facility for write-in candidates. That’s almost certainly on purpose. You vote for the SOMEONE out of the list, or you don’t vote at all. If you’re lucky, there’s a third party candidate available to vote for to serve as ‘none of the above’ since third parties never win (I’ve certainly never seen one win, accept in the news somewhere else). Many electronic voting systems don’t even let you skip the entry if you don’t want to vote for any of the choices. You HAVE to vote for someone… even if there’s only one name, and for many small, local positions, that’s very often the case.

That One Guy (profile) says:

Not delusional, 'just' dishonest

So, not only is she not admitting that her law (which she said was necessary) was not, in fact, necessary, she’s now living in a fantasy world where her law must have helped, despite it not yet being a law.

So it’s quite bizarre for McCain to pretend otherwise.

Lie.

The word you’re looking for is ‘lie’, as in ‘Walters and McCain are lying, deliberately and knowingly being grossly dishonest in portraying the recent shutdown of Backpage as being connected to, and justification for, their disgusting PR stunt of a bill, as opposed to showing that said PR stunt was, contrary to their claims, unnecessary for the purpose that they claimed it was needed.’

Between the two possibilities of ‘delusional’ or ‘dishonest’, I’m going to assume the latter. They know full well that they are lying by claiming that the shutdown of Backpage was related to, and a demonstration of the justification for their bill, they just feel safe in lying by claiming otherwise.

Blaine (profile) says:

Maybe Backpage HAD to come down before the law was signed

I’d guess Backpage could have challenged the constitutionality of the law the second it was signed. All of the noise made about SESTA / FOSTA targeting Backpage specifically may have given them standing.

With Backpage already gone, it will be more difficult for anyone else to challenge the law until it’s used against them.

Hell, the feds won’t even need to charge anyone under the law, just being able to say “it’d be a shame if your nice little website violated SESTA / FOSTA” will probably be enough to make any site “voluntarily” take down whatever the government wants.

Anonymous Anonymous Coward (profile) says:

Whether Legal or Not

There is a big question, that will take years to resolve, as to whether FOSTA/SESTA is Constitutional or not. It will take some cases to develop that actually, legally, use this law to perform some enforcement action that then get appealed in more than one Circuit. If those answers agree, and the law is declared un-Constitutional, then it will be over. If those answers don’t agree, then it will take some more time to get to the USSC, and given their behavior I have my doubts about whether we get a cogent answer from them.

But, as Scott Greenfield points out the passing of un-Constitutional laws is not actually necessary for some types of censorship to take place. Backpage shut down their adult ads back in January in order to prevent the kind of nonsense being displayed by the DoJ now. They didn’t need to, and in doing so made certain tactics law enforcement could use to get at actual traffickers impossible, but even considering the potential loss of revenue they did what they thought would ameliorate critics. The mere threat of the FOSTA/SESTA legislation creates an environment where censorship begins.

We don’t know yet what kind of evidence the DoJ has against Backpage, or for that matter what the actual charges are due to the sealed indictment, but it certainly appears that the Government is working at practicing censorship both with and without laws that demand censorship. This does not bode well for a free society.

Anonymous Coward says:

Re: Re:

Also, unfortunately, by someone who doesn’t seem to really understand what they are talking about here.

For one thing, the UPS example is deeply flawed. UPS and all other major shipping companies do not just ignore packages unless someone wrote "bomb" on the box – they have extensive security divisions with all sorts of inspection and detection practices, up to and including x-rays and simply opening and inspecting packages.

SESTA is the equivalent of telling UPS that it now has two choices: stop that entire apparatus and never inspect any packages in any way ever again, or do a full and detailed inspection on every single package because if they ever accidentally let a bad one through they will be considered to have "knowledge" of that fact.

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