Amended Complaint Filed Against Backpage… Now With SESTA/FOSTA

from the because-of-course dept

What a weird week for everyone promoting FOSTA/SESTA as being necessary to takedown Backpage.com. After all, last Friday, before FOSTA/SESTA was signed into law, the FBI seized Backpage and all its servers, and indicted a bunch of execs there (and arrested a few of them). The backers of FOSTA/SESTA even tried to take credit for the shutting down of the site, despite the fact that the law they “wrote” wasn’t actually the law yet. Separately, as we pointed out, after the bill was approved by Congress, but before it was signed into law, two separate courts found that Backpage was not protected by CDA 230 in civil suits brought by victims of sex trafficking.

On Wednesday, President Trump finally signed the bill despite all of the reasons we were told it was necessary already proven to be untrue (and many of the concerns raised by free speech advocates already proven true). And, on Thursday, in the civil case in Massachusetts (the first to rule that Backpage wasn’t protected by CDA 230 for ads where it helped create illegal content), an amendment complaint was filed, this time with FOSTA/SESTA included. Normally, this wouldn’t make any sense, but thanks to the unconstitutional retroactive clause in FOSTA/SESTA it could possibly apply (assuming the judge ignores the Constitutional problems).

From the amended complaint:

In March 2018, Congress passed the ?Allow States and Victims to Fight Online Sex Trafficking Act of 2017? (?FOSTA?), and the President signed it into law on April 11, 2018. Pub. L. No. 115-___, ___ Stat. ___ (2018) (codified at, inter alia, 47 U.S.C. § 230). FOSTA specifically states, among its legislative findings, that Section 230 of the Communications Decency Act (?CDA?), 47 U.S.C. § 230, ?was never intended to provide legal protection to websites that . . . facilitate traffickers in advertising the sale of unlawful sex with sex trafficking victims,? and that ?websites that promote and facilitate prostitution have been reckless in allowing the sale of sex trafficking victims and have done nothing to prevent the trafficking of children and victims of force, fraud, and coercion.? FOSTA § 2(1)-(2). Accordingly, Congress passed FOSTA to ?clarify that section 230 of [the CDA] does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation or sex trafficking.? … FOSTA amended, inter alia, Section 230(e) of the CDA to provide that ?[n]othing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit . . . any claim in a civil action brought under section 1595 of title 18, United States Code, if the conduct underlying the claim constitutes a violation of section 1591 of that title.? Id. ? 4(a). FOSTA also provides that its amendment to Section 230(e) ?shall apply regardless of whether the conduct alleged occurred, or is alleged to have occurred, before, on, or after [FOSTA?s] date of enactment.? … The effect of FOSTA is to ensure that website operators like Backpage can be held civilly liable to their victims for their violations of federal criminal law.

And thus, the retroactive clause is already in play. Assuming Backpage continues to fight this, you have to imagine it will note the serious constitutional problems with retroactive clauses like the one in FOSTA/SESTA.

But, that of course, depends on Backpage being around to fight this, and the company is gone thanks to the DOJ action. Oh, and apparently the company and its CEO have accepted plea deals to plead guilty to certain charges (though many other execs have pleaded not guilty).

Still, expect to see other civil lawsuits attempt to use the FOSTA/SESTA retroactive clause in the very near future.

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Companies: backpage

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Comments on “Amended Complaint Filed Against Backpage… Now With SESTA/FOSTA”

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43 Comments
Anonymous Coward says:

Re: Re:

Ex post facto applies to civil claims, like the ones made in this amended complaint?

Yes: "No Bill of Attainder or ex post facto Law shall be passed."

Note that Congress didn’t just pass an illegal law: passing the law was, itself, a violation of the constitution. Anyone who voted for it should be removed from office.

I know Mike isn’t a constitutional scholar, but this is a pretty big oversight on his part

Constitutional scholars and courts sometimes make things up, contrary to the text, but the text is perfectly clear. It’s not just talking about criminal law.

The Wanderer (profile) says:

Re: Re: Re:

I read his question as being “Does the ex-post-facto prohibition apply to civil claims, rather than only to criminal offenses?” – either implying that it doesn’t (and it’s a big oversight for Mike to miss that), or genuinely asking whether it does (and stating that it’s a big oversight for Mike to not address the question in the article).

HeAdmitsGuilt says:

QuitDefendingDeplorables

“The CEO, in a federal plea agreement unsealed in federal court in Arizona on Thursday, admitted that during the 14 years of the site’s existence, “the great majority” of Backpage’s allegedly hundreds of millions of dollars in revenue came from placing illegal ads for prostitution.”

Uriel-238 (profile) says:

Re: Deplorables = Undesirables = Untermenschen

These days, so many people admit to so many things in plea bargains, mostly to evade compound charges with stacked mandatory minimums specifically piled by the prosecutor in order to motivate them to confess, even if falsely.

The problem remains, we judge our legal system based on convictions, not on cases fairly adjudicated. And this is how we have prisons full of innocent warm bodies and our incarceration rate is the highest in the world.

Deplorables are the ones that most seriously need defense. Because once any of us — even you — are in the crosshairs of the same system, it’s easy for us to become deplorable in the eyes of the media, and consequently the public.

Anonymous Coward says:

Congress made INTENT clear so judges don't/can't (re)interpret.

It’s not ex post facto law, it’s making clear what ALWAYS applied.

Here’s the right take on FOSTA from The Register today: "Nobody except vile sickos will truly mourn the passing of Backpage: it was a nexus of underage sex trafficking in America."

But Techdirt is going to wail forever! — Not on behalf of me and The Public, but because mega-corporations can’t openly advertise prostitution and are slightly inconvenienced to enforce it!

Keep it up, Masnick: you’re now drawing only pirate / anarchist / drug user / corporatist / unlimited immigration / anti-Trump / child sex slave types (and all their zombie reps) here, and it’s FUNNY as hell to watch you put an Ivy League facade on anti-Americanism!

Uriel-238 (profile) says:

This is illegal seizure in the color of law.

I can only imagine that the prosecution is banking on the likelihood that this won’t get challenged enough to be put before a judge, or that a judge will be biased enough by the alleged threat to children to ignore the malfeasance that is indicated by the order of the process.

I’ve said this before: this is not about law, this is about enemies, and it informs the rest of us that we are all susceptible to the same predatory prosecution engine once it gets hungry again, and should any of us look to be a serviceable meal.

Anonymous Coward says:

Re: Re: Re: Re:

Where does it say that? The list indicates “the main problems with the law”, without saying they make it unconstitutional (sloppy for an article entitled “Why the FISA Amendments Act Is Unconstitutional”). The “Immunity for Lawbreakers” is said to “invite abuse” rather than actually being illegal.

Anonymous Coward says:

Forfeiture

Cyrus Farivar, in connection with his Ars Technica story yesterday, “Backpage CEO pleads guilty to conspiracy, money laundering (Apr 12, 2018), has posted a copy of the Ferrer Plea Agreement.

From p.3 of that document—

b. Forfeiture Assistance: The defendant stipulates and agrees that, upon entry of his guilty plea, he will take all steps within his power to forfeit to the United States . . . all corporate assets and other property owned or controlled by Backpage.com, LLC,  . . .

Reading closely, it doesn’t look like defendant agreed to forfeit the LLC itself — yet all the same, not even the ”Backpage” trademark is going to be left to that LLC.

Don’t think that a nameless, assetless LLC is going to have any more fighting to do.

That Anonymous Coward (profile) says:

I miss when they taught civics…. when people knew their rights & what violated them. They would get out an march when their leaders tried to infringe & take those right away, holding them accountable.

Now we can’t seem to give away our rights fast enough for good soundbites & blissful ignorance as we see the ‘bad people’ get screwed… ignoring next week we can be the new ‘bad people’.

Anonymous Coward says:

Re: Re:

That person would be YOU — through page and ad views. By trolling Masnick, you’re putting more money in his pocket, mainly by increased page/ad views by all the “troll feeders” (myself included) who respond to your endless drivel.

If you don’t want Techdirt to make money, then why do you continue to come here and …. make Techdirt money?

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