Backpage's Biggest Law Enforcement Critic Doesn't Think He Needs SESTA To Take Down Backpage

from the hello-sheriff-dart dept

One of Backpage's most vocal critics in law enforcement has been Cook County Sheriff, Thomas Dart. As you may recall, this has been a nearly decade-long obsession with Sheriff Dart, in which he has been slapped down many, many times by courts. In 2009 he sued Craigslist for hosting adult ads, only to get slapped down pretty hard by a court explaining to him that you can't blame an online service for how its users use it. Once the ads on Craigslist moved to Backpage, Dart had a new target, which he regularly complained about in the press. In 2015, knowing he couldn't sue Backpage directly, he instead (successfully) strongarmed all the payment companies that worked with Backpage into cutting off service.

In response, Backpage sued Dart and very quickly won. The district court quickly pointed out that this seemed like a pretty clear First Amendment violation, with a government official using the law to attack non-criminal actions, creating classic prior restraint. The appeals court agreed with a masterful ruling by Judge Posner, about how this appeared to be a clear abuse of power by Sheriff Dart to bankrupt a company he disliked, but over whom he held no jurisdiction.

The case was then sent back to the lower court on a few points, and the two sides have been flinging paper back and forth for a while -- mostly to no avail. There had been little to no action in the case for many months... until last week Sheriff Dart suddenly sprung up to ask the court to reopen the process so he can issue subpoenas to Backpage, to dig more into what he insists must be criminal activity.

He's basing this on media reports related to a separate investigation into Backpage, which at the very least do raise some questions about whether Backpage is truly involved in the creation of its ads (which would take away its CDA 230 protections). Dart claims this proves that Backpage was lying to the court about how much of a hand it had in crafting ads on its site.

This July, THE WASHINGTON POST and NBC NEWS each published explosive articles reporting that Backpage is actively recruiting prostitutes and even creating ads for them to post on its website. Copies of these articles are attached as Exhibits A and B, respectively. While “Backpage has always claimed it doesn’t control sex-related ads, [n]ew documents show otherwise.” Exhibit A. Backpage has been “aggressively soliciting and creating sex-related ads.”...

The articles explain that the discovery of incriminating documents showing Backpage’ s solicitation and ad creation came about accidentally following the seizure of computers from one of Backpage’s Philippine agents in an unrelated civil lawsuit, but the fact that the revelations were accidental does not take away from their explosive character. The seized documents, if authentic and the reporting about them correct, prove that the essential premise of the original and amended complaints—that Backpage does not provide any of the content of the ads soliciting prostitution—is not well grounded in fact. Backpage has been lying to this Court...

[....]

Defendant now seeks leave to obtain through subpoena the very documents discussed in the two news articles—documents which, if authentic, corroborate the Red Beauty Sting and prove that Backpage has encouraged and participated in illegal activities, including the creation of advertisements that would destroy its Communications Decency Act defense that it is merely a web platform posting the advertisements of others.

Indeed, if it comes out that Backpage was actively involved in the creation of the content, it does not get CDA 230 protections. Under the Roommates.com standard, you can lose 230 protections if you "develop" the comment -- which means "materially contributing to its alleged unlawfulness." I have no idea if Backpage actually goes that far, but if it does, then its 230 protections go out the window and it's in a lot of trouble.

But here's the important point: for all the hubbub over the supposed "need" to break CDA 230 with SESTA in order to go after Backpage for this activity, Sheriff Dart's motion shows that there's no reason for SESTA. If Backpage truly did what those media reports are claiming, then CDA 230 won't apply and Backpage is hosed.

This is something that gets completely lost in all of the talk about CDA 230, where people (falsely) think that it completely takes away any liability for criminal activity. It does not. It just makes sure that the liability is actually on the parties engaged in the criminal activity. If it's the end users, CDA 230 does nothing for them. And if it's the platforms themselves, then CDA 230 also doesn't protect them from their own activities. The fact that Sheriff Dart is arguing that he can now go after Backpage again, and that the CDA 230 protections are gone, is a good reminder that we don't need SESTA to go after Backpage if it really violated the law.


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  • identicon
    Anonymous Coward, 22 Sep 2017 @ 9:49am

    And SOPA wasn't needed to take down Megaupload, either.

    Determined idiots will always find a way - and by find a way, I mean grease the palms and suck the cocks to get what they want regardless. Then they proceed to gloat and boast about how privileged and connected they are.

    Laws like these are little more than white elephants, proposed by authoritarians too prideful or ashamed to admit that they don't care about the citizenry.

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  • identicon
    Anonymous Coward, 22 Sep 2017 @ 10:12am

    You've just agreed with me that there's over-arching law!

    And CDA 230 protection is not absolute. -- All else that I hold follows, now that YOU are off the position that it's absolute.

    As I just wrote in prior piece, problem is INACTION, but principle that corporations are responsible and can be held responsible is nailed down solid from common law down.

    Now let's move on... Unless you actually still hold that corporations are protected from common law and are just using this to argue against passage of SESTA while contradictorily still against other enforcement of requiring sites to police use. I suspect so: you don't QUITE make that point clear (and I read EVERY word above) because you always try to have everything all ways at once, so long as serves corporate profits.

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    • identicon
      Anonymous Coward, 22 Sep 2017 @ 10:31am

      Re: You've just agreed with me that there's over-arching law!

      You don't know what common law is.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Sep 2017 @ 10:44am

        Re: Re: You've just agreed with me that there's over-arching law!

        His version is that it makes anything he disagrees with illegal.

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        • icon
          Stephen T. Stone (profile), 22 Sep 2017 @ 10:49am

          Re: Re: Re: You've just agreed with me that there's over-arching law!

          Fortunately for us, Mike Masnick’s existence cannot be declared “illegal”.

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    • icon
      Stephen T. Stone (profile), 22 Sep 2017 @ 10:34am

      This is an open-book test. You have one hour.

      YOU are off the position that it's absolute

      Please cite the article and quote where someone said CDA 230 protections are absolute.

      Unless you actually still hold that corporations are protected from common law

      Please define “common law” and explain how the concept bears any relevance to the article at hand.

      argue against passage of SESTA while contradictorily still against other enforcement of requiring sites to police use

      Please explain how advocacy for keeping CDA 230 protections the same as they are now equates to advocacy against “enforcement” of the law.

      you always try to have everything all ways at once, so long as serves corporate profits

      Please prove how Techdirt advocates for the absolute position of “corporate profits are more important than even the law”.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 22 Sep 2017 @ 10:46am

      Re: You've just agreed with me that there's over-arching law!

      From the article:

      "It just makes sure that the liability is actually on the parties engaged in the criminal activity. If it's the end users, CDA 230 does nothing for them. And if it's the platforms themselves, then CDA 230 also doesn't protect them from their own activities."

      It seems very, very, blindingly clear that if the platform is engaged in criminal activity they don't have CDA230 protections as it's the case with their users as well. Which means it's not absolute and that SESTA is not needed. So please explain how this is trying "to have everything all ways at once, so long as serves corporate profits."

      Of course I don't expect anything coherent but do try.

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  • icon
    OA (profile), 22 Sep 2017 @ 10:39am

    I'm late to the SESTA party and haven't, yet, waded through the earlier articles.

    That said, I think SESTA is a continuing thread towards a sort of Law and Order zealotry. We're creating laws and precedents that are circumventing the need for evidence. Untempered passion and naked power will take the place of evidence and due process if we allow this.

    Our popular ideas and understanding of extremism are too narrow and are causing us to miss serious problems that are out in the open.

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  • icon
    Ninja (profile), 22 Sep 2017 @ 10:50am

    Because if Backpage is actually engaged in criminal stuff then CDA230 doesn't apply and existing laws apply. In summary that's why SESTA is not needed.

    Unless of course, your real intent is to pretend to be doing something, wanting to circumvent due process and to go after the easier target even if it means real victims go to hell because you couldn't care less about them.

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  • icon
    MyNameHere (profile), 22 Sep 2017 @ 1:25pm

    There are dozens (if not hundreds or even thousands) of sites like backpage out there. They profit from the prostitution trade. Your assertions seem to be that law enforcement has to wait until each one individually makes a silly mistake to deal with the on an individual case basis.

    The issue that the legislative branch is trying to deal with is that these websites / companies / operators are hiding behind section 230, using it not to protect free speech but instead to protect their business models and to allow them to turn a blind eye. It is a situation that is intolerable enough that they are actually likely to pass bi-partisan legislation to deal with it.

    Waiting a decade or more for a company like backpage to make a mistake is not fixing the underlying problem. Using their (potential) error as a reason to turn a blind eye on all of the other similar situations out there is appallingly bad. There is a problem, and we should be happy that the legislative branch working to deal with what is truly a blight on society.

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    • icon
      Stephen T. Stone (profile), 22 Sep 2017 @ 4:32pm

      Re:

      If a company such as Backpage profits from human trafficking, law enforcement should need to prove that the company is complicit in those crimes. For example: Twitter may be used in trafficking circles, but unless law enforcement can prove Twitter is somehow directly and knowingly aiding traffickers, the service should not be held liable for the actions of criminals who use the service. If law enforcement lacks the resources—money, equipment, people—to effectively enforce the law, they should push for more resources instead of laws that obliterate longstanding legal protections and make easier the job of law enforcement.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Sep 2017 @ 6:00pm

      Re:

      And your plan is to seize site after site until they can prove that the site wasn't actually engaged in copyright infringement, like Dajaz1, then argue good faith for seizing the site in the first place. That plan is supposed to be better? We've seen your standards for "good faith". It's telling.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Sep 2017 @ 6:21pm

        Re: Re:

        Oh look a troll.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 22 Sep 2017 @ 6:36pm

          Re: Re: Re:

          You keep using that word. I do not think it means what you think it means.

          reply to this | link to this | view in chronology ]

          • icon
            MyNameHere (profile), 23 Sep 2017 @ 5:44am

            Re: Re: Re: Re:

            I don't know about him (or her) but I do.

            "In Internet slang, a troll (/ˈtroʊl/, /ˈtrɒl/) is a person who sows discord on the Internet by starting quarrels or upsetting people, by posting inflammatory, extraneous, or off-topic messages in an online community" - WIkipedia.

            The person posting is attacking me personally and trying to raise my ire. All it did was make me laugh, you would think Leigh would have better things to do (yes, he is very transparent!).

            The goal of the troll was to take the discussion off my points and onto me personally. I guess by answering, I have fed the troll here, but honestly, you gets need to start flagging people who do this sort of thing. It really does take away from the whole discussion, don't you think?

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Sep 2017 @ 10:32pm

          Re: Re: Re:

          Try logging back in. It helps what little credibility you have. Or are we going back to writing letters for Hamilton?

          reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 22 Sep 2017 @ 6:49pm

      Re:

      They profit from the prostitution trade.

      Citation and definition needed, and if it's really that obvious, and they actually are involved, then it would be trivial for the police/government to go after the sites in question assuming they can be bothered to do some gorram work.

      Your assertions seem to be that law enforcement has to wait until each one individually makes a silly mistake to deal with the on an individual case basis.

      Someone has to actually be shown to have broken the law in order to be investigated/prosecuted under the law. Crazy concept, I know.

      The issue that the legislative branch is trying to deal with is that these websites / companies / operators are hiding behind section 230, using it not to protect free speech but instead to protect their business models and to allow them to turn a blind eye.

      'The law says we don't have to do what you want us to do(pro-actively monitor, moderate and filter), therefore we aren't' is not 'hiding behind the law' any more than 'not speeding' is 'hiding' behind the speed limit laws. Not doing what you don't have to do is not 'hiding' behind the law, it's following it.

      It is a situation that is intolerable enough that they are actually likely to pass bi-partisan legislation to deal with it.

      It doesn't take much to get politicians on both sides to jump on board a counter-productive cheap PR stunt, so that's not much indication of anything.

      Waiting a decade or more for a company like backpage to make a mistake is not fixing the underlying problem.

      Neither is blaming a site for the actions of it's users because it's easier.

      There is a problem, and we should be happy that the legislative branch working to deal with what is truly a blight on society.

      Except they aren't. They're proposing a 'solution' that will cause massive harm, and will merely make the 'blight' harder to find and address.

      reply to this | link to this | view in chronology ]

      • icon
        MyNameHere (profile), 23 Sep 2017 @ 2:34am

        Re: Re:

        "Citation and definition needed, and if it's really that obvious, and they actually are involved, then it would be trivial for the police/government to go after the sites in question assuming they can be bothered to do some gorram work."

        Prostitution is like drug dealing. With thousands of cases and plenty of caselaw, the workers have developed systems, processes, and keywords that are just this side of legal when taken individually (as the law generally does) but adds up quickly and obviously to something obviously bigger. Here's a screen shot (from Fastcompany) of a SXSW "special" promoted in backpage:

        https://assets.fastcompany.com/image/upload/w_596,c_limit,q_auto:best,f_auto,fl_lossy/fc/30 57787-inline-i-3-sxsw-backpage-dates.png

        Look at the picture.

        What "skills" does she have that are unbelievable and relevant to being an escort and not a prostitute? Conversational skills? Can she uncork wine with just her mind power? One look at the ad and you know exactly what this girl is selling.

        Now, on the head of a legal pin, you could say that without a successful prosecution of this girl long after the fact, Backpage would have no way to know that she is a hooker. That would require that they are perhaps the most ignorant people on the planet.

        "Someone has to actually be shown to have broken the law in order to be investigated/prosecuted under the law. Crazy concept, I know."

        Backpage's mistake (in this case) appears to be helping the girls / pimps write ads. That is a mistake. It also shows that they are clearly very much aware of what the ads are for. It is not hard to infer that the rates they charge for ads is profiting from prostitution.

        "Except they aren't. They're proposing a 'solution' that will cause massive harm, and will merely make the 'blight' harder to find and address."

        OMG, you almost got it man! Making the "blight" harder to find is the entire goal. Prostitutes / pimps market and advertise because they need more clients. They need to be exposed to the public in the hope of finding someone who needs the action. Places like Backpage make it look safe and simple, no different from ordering pizza. Dealing with criminals should be hard. It should be hard to find them, it should be hard to contact them, and you should never get the impression that it's safe or easy. If removing the ads from the online space cuts down their consumer base by (say) 20% even, that is a big deal. It's very likely to do a whole lot more than that.

        Let's put it another way: Do you honestly think that, held to be accountable for the content of these ads, that Backpage would run them? The answer is no. They know it's prostitution. They know that they are an important cog in that business, and that the business sometimes includes underage girls, sometimes includes girls who are "owned" or controlled by others (stats say that 90% of prostitutes in the US have a pimp).

        "They're proposing a 'solution' that will cause massive harm"

        I disagree. While Mike has made some massive arm waving claims, the reality is quite simple. airBNB will not knowingly rent premises to prostitutes, porn film makers, or party people. If they are made aware, your account is banned and you can no longer rent through their system. They take action - even without prosecution. Moreover, AirBNB has no real horse in the game, considering we are talking section 230 here, which means the rental ads, and not the customers. Oh, yeah, Mike forgot to mention that! With or without section 230 as it is or changed, AirBNB has the same liability for it's renters actions - nothing changes because it's not about what is posted.

        Use critical reasoning skills and go back over his posts. Go look at who actually would really be affected. Classified ads and Cloudflare at the two most likely to have issues. Honestly, they just need to stop dealing with criminals. ;)

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        • identicon
          Anonymous Coward, 23 Sep 2017 @ 7:12am

          Re: Re: Re:

          "Prostitution is like drug dealing"

          lol - sure it is

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        • icon
          Stephen T. Stone (profile), 23 Sep 2017 @ 8:52am

          Re: Re: Re:

          Honestly, they just need to stop dealing with criminals.

          How is any company supposed to know, with the certainty of God, that they are “dealing with [a criminal]” until the act occurs?

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        • identicon
          Anonymous Coward, 23 Sep 2017 @ 9:42am

          Re: Re: Re:

          You give an example that may be questionable, if someone looks at it. What you are ignoring is that the staff of any large website cannot possibly look at all content posted on their site. What you need to show is not that the advert is for illegal services, but rather that someone at the site saw the advert and left it up.

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        • icon
          That One Guy (profile), 23 Sep 2017 @ 12:29pm

          Re: Re: Re:

          Now, on the head of a legal pin, you could say that without a successful prosecution of this girl long after the fact, Backpage would have no way to know that she is a hooker. That would require that they are perhaps the most ignorant people on the planet.

          Or didn't see it, didn't agree with your assessment(it's entirely possible that that was a person selling sex, but it's also possible that it wasn't, without an actual investigation it's impossible to know for sure). What you seem to be advocating is that they simply assume the worst and act accordingly, which will lead to innocent people having their stuff removed on a significant scale.

          Backpage's mistake (in this case) appears to be helping the girls / pimps write ads. That is a mistake. It also shows that they are clearly very much aware of what the ads are for. It is not hard to infer that the rates they charge for ads is profiting from prostitution.

          If you assume that they knew that a given ad was for illegal service rather than a legal one and allowed it through anyway, and/or that there's no such thing as a legal adult ad.

          However, that's beside the point, in that if Backpage was actively involved in the ads then they lose 230 protections, meaning the law isn't going to protect them, such that another new, worse law isn't needed.

          If you can prove that a site is actively involved with illegal content then the law doesn't protect them, and if they aren't, if other people are merely using their site service then holding the site accountable is blaming the wrong person and will have significant chilling effects on speech.

          It should be hard to find them, it should be hard to contact them, and you should never get the impression that it's safe or easy. If removing the ads from the online space cuts down their consumer base by (say) 20% even, that is a big deal. It's very likely to do a whole lot more than that.

          Except actions like this don't 'remove the ads from online space', they merely shift them to a more hidden spot, one that police have to hunt down all over again and/or one that has no interest in working with police.

          Contrary to your claim you want these pimps using a publicly visible service, because that makes it easier to find them. Making it harder for the general public to find also makes it harder for the police to find, and merely brushes the problem under the rug rather than going after the pimps and stopping it entirely one person at a time.

          Let's put it another way: Do you honestly think that, held to be accountable for the content of these ads, that Backpage would run them? The answer is no. They know it's prostitution.

          And other sites 'know' that copyright infringement is posted using their platforms, and yet courts have ruled that that's not enough to lay the blame at their feet. 'Knowing' in general isn't enough, if you want to go after the site you need to prove specifics, that they knew that a particular ad was for an illegal adult service rather than a legal one and left it up anyway.

          Companies that make and sell cars know that people use their products for illegal acts. Companies that make and sell guns know that people use their products for illegal acts. Just because a company 'knows' that people use their product/service for illegal acts isn't enough to blame and hold them accountable for those acts, you need to demonstrate specific knowledge.

          With or without section 230 as it is or changed, AirBNB has the same liability for it's renters actions - nothing changes because it's not about what is posted.

          And AirBnB choosing not to let certain people that they have been informed of from using their service has what to do with sites facing criminal charges if someone argues that they 'knew'(with the definition of that to be left up to the judge, because it's apparently not to be found in the bill) someone was using their service for illegal activity?

          Honestly, they just need to stop dealing with criminals. ;)

          Yes, if only companies would pay more attention to the legally mandated 'I am a criminal' tagline on all user submitted content posted by criminals so they knew who they were dealing with. /s

          Your argument isn't 'stop dealing with criminals', as most people would agree with, it's 'stop dealing with anyone who might be a criminal, or else', which most people here do not agree with.

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          • icon
            MyNameHere (profile), 23 Sep 2017 @ 1:49pm

            Re: Re: Re: Re:

            "Yes, if only companies would pay more attention to the legally mandated 'I am a criminal' tagline on all user submitted content posted by criminals so they knew who they were dealing with. /s"

            Which is why there are so many ads on Backpage for hit men, hard drugs, and invitation to join gangs intending to rob a jewelers store.

            See, they don't have to wait for someone selling drugs to be arrested and charged before they remove their ad (try it, try listing "heroin for sale" on backpage and see how long you ad lasts).

            Prostitution is illegal. None of the ads is for a legal service. Why wait for a conviction here when in other areas, they act immediately?

            Oh yeah, income. Forgot about the money!

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            • icon
              Stephen T. Stone (profile), 23 Sep 2017 @ 2:20pm

              Re: Re: Re: Re: Re:

              If an ad contains an explicit call for an illegal service, Backpage needs no other evidence to take action. Same goes for the police. But if an ad lacks that illegal content, law enforcement—and presumably Backpage—will need actual evidence to prove the ad is for an illegal service. Even then, Backpage carries no legal liability for the ad unless the site did something that would—and should—revoke the protections of CDA 230.

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            • icon
              That One Guy (profile), 23 Sep 2017 @ 5:42pm

              Re: Re: Re: Re: Re:

              See, they don't have to wait for someone selling drugs to be arrested and charged before they remove their ad (try it, try listing "heroin for sale" on backpage and see how long you ad lasts).

              It helps if the examples you propose aren't so insanely hyperbolic and undermine your own argument by demonstrating that when someone puts up an ad for an obviously illegal service/product the site is quick to take it down(if they allow it up at all).

              Prostitution is illegal. None of the ads is for a legal service. Why wait for a conviction here when in other areas, they act immediately?

              a) Because your 'it's obvious!' isn't. What I assume was hyperbolic sarcasm aside, people aren't going around posting ads for blatantly illegal services.

              As a hypothetical example, say a particular pimp advertises by putting up a listing for a couch, with a few random keywords or phrases to make it clear what's being offered. Unless Backpage or another site knows those keywords(and if the pimp is at all smart they'll be the kind of phrase that sounds harmless, like 'quick delivery'), they have no way to differentiating between someone who is selling a literal couch and one engaged in prostitution.

              b) Unless I am horrifically misinformed, 'adult ad' does not automatically equal 'illegal ad'. Were that the case I find it hard to believe the site would still be in business with an adult category(as something they directly created they would be liable for that were it illegal).

              As such the idea that they 'know' that 'none of the ads is for an legal service' is rubbish, you're again asserting that they should 'just know', and if you can spot illegal ads that easy then why in the world are you here, I'm sure there are likely hundreds of police and government agencies that would love to employ you.

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              • icon
                MyNameHere (profile), 24 Sep 2017 @ 2:17am

                Re: Re: Re: Re: Re: Re:

                "It helps if the examples you propose aren't so insanely hyperbolic and undermine your own argument by demonstrating that when someone puts up an ad for an obviously illegal service/product the site is quick to take it down(if they allow it up at all)."

                I used an extreme example to try to get you to think a bit - does the drug dealer have to be arrested and put in jail before they drop the ad? Nope, they won't accept the ad because they know that selling drugs is illegal. Prostitution is illegal as well. Knowing that all of the ads lead to paid sex (because they do), should they continue?

                For that matter, how many arrests do you think they would need before Backpage might consider that these ads are for prostitution? Should they take the police department's word, should they accept the AG for the state saying so?

                For that matter, what percentage of the ads have to be show to be for sex? Arw you suggesting that they run the ad until the court finds the defendant guilty?

                "As such the idea that they 'know' that 'none of the ads is for an legal service' is rubbish, you're again asserting that they should 'just know', and if you can spot illegal ads that easy then why in the world are you here, I'm sure there are likely hundreds of police and government agencies that would love to employ you."

                The police know as well. The problem isn't knowing that an ad is for a prostitute, it's the cat and mouse game required to prove it. It actually requires that the police book the girl, actually get there, and actual get her to admit (in as many words) what she charges for sex. Well trained girls (and pimps) make sure that they avoid the exact words and use very terms to avoid the entrapment. Some go as far as to not accept direct payment, but to require a "tip" put in an envelope on the night stand, without the girl touching, counting, or considering it during the act (it's a way to avoid the concept that she had sex for money, the sex was free will and the tip was just because she was such a nice person).

                So the police already know, they don't need me to tell them. It's why the concept of "keep it public so they can go after them" is such crap. They know where the hookers are, they know where the pimps are, and they play an endless game to try to get them to make just enough of a mistake to arrest them - otherwise, they skate free for another day. When you consider that a set up for a single arrest might take a team of cops a full shift, and that there are hundreds of ads every day, you can understand that it's spooning out the ocean material.

                it's why the goal is to remove easy access to the public, to make the business less "open" and acceptable, and move it more underground. Make it harder for the "occassional" worker to get involved, make it harder for girls to do sex tours, and generally make it harder for the public and the providers to connect.

                "b) Unless I am horrifically misinformed, 'adult ad' does not automatically equal 'illegal ad'. Were that the case I find it hard to believe the site would still be in business with an adult category(as something they directly created they would be liable for that were it illegal)."

                Thanks to section 230, it's not a question. The site is not liable even the ad is for something truly horrible. That is the issue, and that is the abuse of section 230 in a nutshell.

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                • identicon
                  Anonymous Coward, 24 Sep 2017 @ 6:29am

                  Re: Re: Re: Re: Re: Re: Re:

                  Third party liability, is not a good thing to hang one's hat upon as it will turn and bite its creator.

                  reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 24 Sep 2017 @ 6:50am

                  Re: Re: Re: Re: Re: Re: Re:

                  "For that matter, how many arrests do you think they would need before Backpage might consider that these ads are for prostitution?"

                  Same number of sites that have been taken down, then quietly restored later for "good faith".

                  reply to this | link to this | view in chronology ]

                • icon
                  Stephen T. Stone (profile), 24 Sep 2017 @ 8:46am

                  Re: Re: Re: Re: Re: Re: Re:

                  They know where the hookers are, they know where the pimps are, and they play an endless game to try to get them to make just enough of a mistake to arrest them - otherwise, they skate free for another day.

                  You say this as if the cops should be able to legally arrest someone without having to prove that the supposed “perp” committed a crime.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 24 Sep 2017 @ 12:05pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    They do this already - but I had not heard anyone, until now, speak in support of same.

                    reply to this | link to this | view in chronology ]

                  • icon
                    MyNameHere (profile), 24 Sep 2017 @ 1:36pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    No, I didn't say that at all, you didn't read my comment correctly.

                    What I am saying is that because it is difficult to make a case and the time requirement per case is very high, it's often not very effective to go after the pimps and prostitutes on individual case basis. It's often much more effective to do what might be considered "crime prevention".

                    The requirement for a prostitution bust is actually getting the girl to agree to have sex for money. the courts have over the years made this a really, really narrow set of circumstances. The use of special words and "donation" envelopes and all other sorts of work around are to avoid touching any of the things the court has ruled as actionable. Police are forced to make attempts to get the girls to say the wrong words in order to get an arrest.

                    The pimp? Forget about it! They either take the girl's money after the after the act, or use a flat fee referral system collected up front to connect the customer and the girl - and often do both. Why do you think the Las Vegas "Girls to your room" thing stands as legal? They charge a flat fee to deliver a girl to you. After that, it's up to you and the girl. So they can stay out of the dirty transaction, and the court allow them to by agreeing that they are only a referral service, even if they should be aware of the fuller picture.

                    The police know the players, they know the game. LV police routinely sting these girls, but it never leads them to the bosses, who have insulated themselves legally from the real action.

                    So no, it's not about arresting anyone without proof. It becomes much more a question of why the courts (and the laws) are unable to deal with larger, step by step organizations. The disconnection is somewhat insane and very obvious.

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                    • icon
                      Stephen T. Stone (profile), 24 Sep 2017 @ 3:13pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Law enforcement cannot deal with such organizations because the law provides protections against overreaches of power by government agents. Cops and prosecutors cannot just arrest and jail the pimps on mere “suspicion” of committing a crime—they must be able to prove that a suspected pimp has committed a crime. Our legal system still operates under the ideal of “innocent until proven guilty”, with the key word of the phrase being “proven”.

                      The same principle applies to services such as Backpage: Unless and until law enforcement can prove that people behind the service committed an illegal act—or were direct, knowing accomplices to an illegal act—Backpage retains its CDA 230 protections. The law does not allow the cops to arrest Backpage higher-ups or the courts to revoke those protections without proof of illicit behavior.

                      And the law forces the courts and the police to operate this way because the job of law enforcement should not be easy. Society burdens law enforcement with laws and regulations to prevent abuses of power and protect the innocent. We cannot abide by anything less.

                      reply to this | link to this | view in chronology ]

                      • identicon
                        Anonymous Coward, 24 Sep 2017 @ 10:12pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Why do you think MyNameHere complains about warrants so much? Because while he will claim to not suggesting that police function as judge, jury and executioner, he conveniently avoids mentioning here that he greatly dislikes any form of oversight, warrant or procedure that might slightly inconvenience the police.

                        Funny how for someone who brags about "the law is the law is the law" as a basis for why the RIAA cannot be held accountable for "good faith" violations, he's suddenly bending over backwards to let the police steamroll over everyone else. (By funny, I mean unsurprising.)

                        reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 25 Sep 2017 @ 12:24am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      What I am saying is that because it is difficult to make a case and the time requirement per case is very high, it's often not very effective to go after the pimps and prostitutes on individual case basis. It's often much more effective to do what might be considered "crime prevention".

                      In other words you want to give the cops the power of censorship under the guise of crime prevention. Doing so will have the same effect as imposing Sharia law, that is allowing a self righteous group to decide what is an is not acceptable behavior.

                      reply to this | link to this | view in chronology ]

                • icon
                  That One Guy (profile), 24 Sep 2017 @ 3:19pm

                  Re: Re: Re: Re: Re: Re: Re:

                  For that matter, what percentage of the ads have to be show to be for sex? Arw you suggesting that they run the ad until the court finds the defendant guilty?

                  What percentage of ads are for sex, compared to the percentage of things that might be for sex? I'm guessing the former is going to be vastly lower than the latter, yet you seem to be arguing that 'might be' is good enough and should be all that's needed for removal, and that standard would result in massive amounts of collateral damage as people who were offering a completely legal product/service have their posts taken down right alongside people who were offering illegal products/service.

                  Exactly what is your suggestion for mitigating that harm, or do you just consider that acceptable collateral damage, and just for clarification are you holding the position that Backpage should be actively looking for 'problematic' ads or merely reacting when people point them out?

                  When you consider that a set up for a single arrest might take a team of cops a full shift, and that there are hundreds of ads every day, you can understand that it's spooning out the ocean material.

                  Because while the alternative might make it slightly more difficult for people to find them, it also will impact a whole bunch of perfectly legal activity.

                  Law enforcement is supposed to be hard, it is supposed to take work, because taking the easy route is all but guaranteed to impact a lot of people doing nothing wrong, simply because they used the wrong word/phrase, happened to be in the wrong are at the wrong time, or do and/or say any number of things that could be construed as 'suspicious'.

                  Thanks to section 230, it's not a question. The site is not liable even the ad is for something truly horrible. That is the issue, and that is the abuse of section 230 in a nutshell.

                  And once again, it's not 'abuse' of a law to use it as intended. If the law is intended to shield sites from the actions of their users unless they are actively involved in the content in question, then they are not 'hiding behind' it or 'abusing' it to point out that the law provides them immunity.

                  reply to this | link to this | view in chronology ]

                  • icon
                    MyNameHere (profile), 27 Sep 2017 @ 6:05am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "What percentage of ads are for sex, compared to the percentage of things that might be for sex? "

                    You could do a quick phone survey and find out. Anyone advertising a legit "escorting" service wouldn't be posting there. So you can figure that almost every ad without exception leads to a sexual encounter. 90% of prostitutes are run by pimps, so you have a 90% chance of hitting a girl who is "owned".

                    "ollateral damage as people who were offering a completely legal product/service have their posts taken down right alongside people who were offering illegal products/service."

                    Quite simply, if you are offering a legit escorting service (ie, model for your prom or business function) you wouldn't be advertising in that area. Legit escorting is incredibly rare for the most part, and generally not offered by the hour at a hotel.

                    "Because while the alternative might make it slightly more difficult for people to find them, it also will impact a whole bunch of perfectly legal activity."

                    They will certainly be harder to find. It wouldn't impact legal activities in the slightest, again those offering legit escorting services / security and the like aren't going to advertising in that way and in that section. They don't want to get mixed up with pimps and hos.

                    "Law enforcement is supposed to be hard, it is supposed to take work, because taking the easy route is all but guaranteed to impact a lot of people doing nothing wrong,"

                    Yes, but in the case of prostitution, there is so much caselaw and so many flaming hoops to jump through, and the punishments are fairly low. Remember, because it's generally the girls getting the money, they are the "low hanging fruit" that gets busted. They end up going through the court system, locked up over night, paying a fine, and walking away the next day. To get there, it took the police to set up a sting, monitor (and maybe video) and try to get the girl to admit the payment is for a sexual act.

                    Want to get the pimp? You have to either get a girl to turn or get the pimp to admit the money is for sex, both of which are pretty rare.

                    The other option (and the one explored by this law) is that of removing at least some of the income potential.

                    "And once again, it's not 'abuse' of a law to use it as intended."

                    I don't think sainted Mr Wyden wanted underage escorts and their pimps to get a free ride online.

                    Section 230 let's sites turn a blind eye, when they could not do the same operating in the real world. That means that section 230 allows them to essentially ignore every other law, because they are magically exempted.

                    Now, it wouldn't be so bad if they were not looking for these types of ads but they showed up occasionally. It's not the case, they are actively looking for them and working very hard to find ways for people to pay for them. They know full well what the ads are for, and Backpage does report some cases to the feds in regards to minors. They cannot deny that they know what the ads are about.

                    reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 27 Sep 2017 @ 8:40am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      _Want to get the pimp? You have to either get a girl to turn or get the pimp to admit the money is for sex, both of which are pretty rare.

                      The other option (and the one explored by this law) is that of removing at least some of the income potential._

                      Again with the torch-the-house-with-a-flamethrower-to-kill-a-cockroach-that-might-be-in-there approach.

                      And of course you can't resist an e-boner for Wyden.

                      reply to this | link to this | view in chronology ]

                      • icon
                        MyNameHere (profile), 27 Sep 2017 @ 5:58pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Sorry, your answer makes no sense. There is nothing being torched. A very narrow part of section 230 is being revoked in regards to knowingly supporting illegal sex workers and their pimps. The rest of it is arm waving extreme case examples trying to rope as many non-related and irrelevant companies into the mix.

                        reply to this | link to this | view in chronology ]

                        • identicon
                          Anonymous Coward, 27 Sep 2017 @ 6:19pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          You mean like how supermarkets are considered IP-intensive industries that would be ruined if IP protections were slightly weakened?

                          The DMCA used to be about copyright - now it's used for everything from removing critique and analysis to all-purpose silencing regardless of whether the plaintiff even owns the copyright, and chucklenuts like you scream "good faith! good faith!" to shield them from any kind of meaningful consequence. Hell, even your biggest ally in the article above knows he doesn't need SESTA to do whatever he wants. It's a sad, transparent attempt to shoehorn in all the oversight and restraint removal you like, then declare "the law is the law is the law" when it's written in stone. Damn, warrants and police effort are a bitch, aren't they?

                          reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 22 Sep 2017 @ 2:15pm

    I wonder...

    I wonder if Backpage will be able to dodge Dart? *ducks*

    reply to this | link to this | view in chronology ]


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