Why Does SESTA Allow State Attorneys General To File Civil Claims?

from the please-someone-explain dept

So we've already talked a lot about the problems of the "knowledge" standard in the amended version of SESTA, in that it's way too broad, and leaves smaller sites completely adrift in figuring out if they're on the right side of the law. But there were other changes in the amended version of SESTA as well -- some good, and some bad. Law professor Eric Goldman has an excellent post detailing the changes, but I want to focus on one really perplexing one.

For reasons that are totally unclear, SESTA now allows states Attorneys General to file civil charges against websites for violating sex trafficking laws. That's... weird. One good change in the new SESTA was the removal of letting state AGs go after sites for just violating state trafficking laws by requiring "conduct that violated a Federal criminal" trafficking law. That was important, because state laws are a hodgepodge of rules, and can change (often in weird ways) making it next to impossible for many websites to make sure they're magically in compliance with every state's laws on this issue. But perhaps to keep the state AGs happy, this was added instead:

In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been threatened or adversely affected by any person who violates section 1591, the attorney general of the State, as parens patriae, may bring a civil action against such person on behalf of the residents of the State in an appropriate district court of the United States to obtain appropriate relief.

As Goldman notes, this makes no sense at all:

I don’t understand this provision and why it’s needed, given that SESTA separately loosens the constraints on state AG enforcement of their state crimes. The scope of civil enforcement is still tied to the federal crime, which is good, but giving state AGs a second option to enforce the law is puzzling. I know the bill proponents feel like much of the sex trafficking enforcement work is done at the state and local level, so unleashing the state AGs from Section 230 will put more “cops on the beat.” However, why do they also need a civil action to do that work?

This change is significantly more troubling if you're at all familiar with the fairly recent history of state Attorneys General and their grandstanding against technology. We've written about this on Techdirt for the better part of a decade, but I'll point you to two "must read" articles on other sites to get a sense of how trusting state AGs with such a massive power is going to backfire badly. The first is Topix CEO Chris Tolles' horrifying account of having State AGs gang up on his company with no legal basis, just because they didn't like the way Topix dealt with what were deemed "abusive" comments. Notably, one of the state AGs leading the charge: Richard Blumenthal -- then in the middle of a campaign to become Senator for Connecticut (which he won) and now... the co-author of SESTA. Hmm.

From that first hand account:

After my lawyers reconfirmed that we weren’t being accused of breaking any specific laws, I decided to take a pretty open stance with these guys and give them the background on what we did, and how we did it, figuring that if they knew what we were doing, and in particular, if they knew that the paid expedition of reviews was only about 1% of all of our feedback, that we would be able to clear this up pretty easily. (I was wrong about this).

The call with these guys was actually pretty cordial. We walked them through how we ran feedback at Topix, that how in January 2010, we posted 3.6M comments, had our Artificial Intelligence systems remove 390k worth before they were ever even put up, and how we had over 28k feedback emails and 210k user flags, resulting in over 45k posts being removed from the system. When we went through the various issues with them, we ended up coming to what I thought was a set of offers to resolve the issues at hand. The folks on the phone indicated that these were good steps, and that they would circle back with their respective Attorneys’ General and get back to us.

No good deed goes unpunished

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That’s right. Another press release. This time from 23 states’ Attorney’s General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn’t like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and “immediately revamp our AI technology to block more violative posts” amongst other things.

I don't want to all stereotype state Attorneys General, but there's a reputation that the state AG position is a stepping stone to higher office -- generally state Governor or Senator. And, thus, there's a fairly long history of state AGs using their platform for regular grandstanding, getting themselves in headlines. And one good way to do that is to pick a hot topic that will create headlines, totally misrepresent it, and then jump in front of the press. That's what happened to Topix, but we've highlighted numerous other such cases, from Andrew Cuomo (when he was NY's Attorney General, before going on to be Governor) getting ISPs to cut off Usenet access to then South Carolina AG Henry McMaster (then AG, now Governor) threatening to throw Craigslist execs in jail to Pennsylvania's Tom Corbett (then AG, and soon after Governor -- sense a pattern yet?) demanding Twitter reveal anonymous critics to Mississippi Attorney General Jim Hood blaming everything bad on the internet on Google. In each of these cases, with no legal basis, state AGs attack big California tech companies. Because it generates headlines. As Tolles wrote in his piece:

The States’ Attorneys General are the place that complaints about your company will probably end up. This is especially true if you host a social or community based site where people can post things that others may dislike. And, there’s no downside to attacking a company based in California for these guys (MyScape, Facebook, Craigslist have all been targets in the past couple of years). Taking complaints from your citizenry and turning them into political capital is simply too good an opportunity for these guys to pass up.

And SESTA now provides them with a big weapon: a civil lawsuit. Back during the one hearing the Senate held on SESTA, California's AG, Xavier Becerra insisted that there was little chance of SESTA being abused, because he had to prove beyond a reasonable doubt that a site was facilitating sex trafficking. But, in opening up civil claims to state AGs in the new bill, that's no longer true. Now we're talking about a "preponderance of the evidence" which is a much lower standard -- i.e., one that will be much, much easier for state AGs to abuse to shakedown tech companies.

And here's where this gets potentially much, much worse. We've already discussed the problematic nature of the "knowledge" standard directly within SESTA, but this new portion allowing civil cases by state AGs may make the problem drastically worse. Note that the text quoted above, opening up civil claims to state AGs, technically would amend 18 USC 1595 to add that paragraph above. But when you put it into context, you realize that 1595(a) notes that civil actions can be brought against anyone who "knew or should have known" was violating sex trafficking laws. So, suddenly, we're beyond the already problematic "knowledge" standard directly in SESTA, and now opening up civil claims from already aggressive state AGs, who can now argue that the standard is that a site "should have known" about the facilitation of sex trafficking on the site. That is, there's no more "knowledge" requirement at all.

That's... really bad.

And now we get to the second off-site article that's worth reading to understand why this is so problematic. Three years ago, Eric Lipton wrote a bombshell of an article in the NY Times, entitled Lobbyists, Bearing Gifts, Pursue Attorneys General, all about how lobbyists were focusing a tremendous amount of attention on state AGs to do their bidding for them, including attacking companies they don't like.

Attorneys general are now the object of aggressive pursuit by lobbyists and lawyers who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means to push them to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators, an investigation by The New York Times has found.

Among the many, many shocking things in that article, is the suggestion that some of the "investigations" by state AGs have something of a "profit" motive, rather than a public interest one:

Executives from the company that distributes 5-Hour Energy, for example, have contributed more than $280,000 through related corporate entities in the last two years to political funds of attorneys general.

Company executives wrote those checks after the investigation into false claims and deceptive marketing, which initially involved 33 states, opened in January 2013. Requests started to come in for contributions, including a phone call this year directly from Mr. Ferguson of Washington State, whose staff was involved in the inquiry.

In a statement after the company was sued by three states in July, the company strongly denied the allegations and compared being solicited for contributions to being pressured to pay “ransom.” It asked, “Is it appropriate for an attorney general to ask for money from a company they plan to sue?”

And, if SESTA passes, these same state AGs will suddenly be able to bring civil suits against companies -- potentially using a "should have known" standard, in which the end result may be a monetary settlement.

That Lipton article lays out example after example after example of companies making big donations to try to influence state AGs, and sometimes doing the legal legwork for them. And if you think this won't be used by certain companies to get state AGs to attack tech companies on their behalf, you haven't been paying attention. Remember, thanks to the Sony Pictures email leak, we know that the MPAA was literally passing around that Lipton article about influencing state AGs, and discussing how they needed to get in on that as part of "Project Goliath" -- their plan to harm Google -- which eventually led to the sketchy subpoena from Mississippi AG Jim Hood. Remember, the letter that Hood sent Google was actually written by the MPAA's outside lawyers.

So, once again, the question needs to be asked: why do state Attorneys General need the ability to file civil lawsuits under this bill, with a much lower standard to bring those suits?


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  • identicon
    Anonymous Coward, 8 Nov 2017 @ 10:01am

    Now we have the truth of it, SESTA is a law to enable elected officials to grandstand their way up the political ladder, and has nothing to do with effective action to deal with the actual problem.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 8 Nov 2017 @ 10:07am

    "to obtain appropriate relief" -- between ignore and hang

    Sheesh. What a black and white world you live in, no gradations or degrees.

    I bet what you're trying for is to set the minimum in this area so high that it's very rarely charged, instead of a measured, "HMM, that seems to go against common law. Why don't you change your business practices?" -- Which is what happened to Topix, when rationally regarded instead of the hysteria you write.

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

    • identicon
      Anonymous Coward, 8 Nov 2017 @ 10:23am

      Re: "to obtain appropriate relief" -- between ignore and hang

      "What a black and white world you live in, no gradations or degrees."

      Excuse me while I go laugh myself to death after reading YOU write this.

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

    • identicon
      Anonymous Coward, 8 Nov 2017 @ 10:31am

      Re: "to obtain appropriate relief" -- between ignore and hang

      The end justifies the means?
      Again?

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

    • identicon
      Anonymous Coward, 8 Nov 2017 @ 10:44am

      Re: "to obtain appropriate relief" -- between ignore and hang

      Yeah. It's not like the government has a track record of going to comically absurd lengths for the sake of abusing literally every abusable piece of legislation they can. We should trust them to be able to reappropriate private money any time they're probably right. Why not just go the asset forfeiture route and make the victims prove they didn't do it?

      Jesus fuck, you're a moron.

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

    • icon
      Toom1275 (profile), 8 Nov 2017 @ 10:51am

      Re: "to obtain appropriate relief" -- between ignore and hang

      OOTB hates it when due process is enforced.

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

      • identicon
        Anonymous Coward, 8 Nov 2017 @ 10:56am

        Re: Re: "to obtain appropriate relief" -- between ignore and hang

        Let's be realistic here: OOTB hates the Bill of Rights in its entirety. He assumes himself safe from government malfeasance, and since he thinks he's safe, he doesn't give a fuck what other negative effects come from expanding overreach.

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

        • identicon
          Anonymous Coward, 8 Nov 2017 @ 1:05pm

          Re: Re: Re: "to obtain appropriate relief" -- between ignore and hang

          OOTB is not the only person that has this problem. Many people here at TD does as well... just with their political flavor attached.

          "<insert everyone here> assumes himself safe from government malfeasance,"

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

          • icon
            That One Guy (profile), 8 Nov 2017 @ 1:25pm

            Re: Re: Re: Re: "to obtain appropriate relief" -- between ignore and hang

            [Citation needed].

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

          • identicon
            Anonymous Coward, 8 Nov 2017 @ 1:26pm

            Re: Re: Re: Re: "to obtain appropriate relief" -- between ignore and hang

            Well there are ceretainly a few people here who like to try to speak for large groups of people whom they are not a part of.

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

            • identicon
              Anonymous Coward, 8 Nov 2017 @ 2:07pm

              Re: Re: Re: Re: Re: "to obtain appropriate relief" -- between ignore and hang

              My experience supports his assertion. People will cheer power grabs by their favorite flavor of politicians.

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

            • identicon
              Anonymous Coward, 8 Nov 2017 @ 5:29pm

              Re: Re: Re: Re: Re: "to obtain appropriate relief" -- between ignore and hang

              Sadly, irony is the sort of nuance that will sail over the head of our resident paint chip eater.

              He thrives on an irony-deficient diet.

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

  • identicon
    Anonymous Coward, 8 Nov 2017 @ 10:22am

    State's Attorney Generals are notoriously political.

    You can bet there would be significant political considerations in deciding who to and who not to go after.

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

  • icon
    Anonymous Anonymous Coward (profile), 8 Nov 2017 @ 10:40am

    Doesn't it all come down to speech?

    How could it be possible for this law to pass comprehensive First Amendment test? By comprehensive, I mean by persons/courts that are not invested in some agenda or other. Obviously the legislators that are propagating this law have an agenda, and likely one that is not discernible at this point.

    Since it is unlikely to be able to pass a First Amendment test, how is it conscionable for Congress to pass it?

    Right, Congress has no conscience.

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

    • identicon
      Anonymous Coward, 8 Nov 2017 @ 10:53am

      Re: Doesn't it all come down to speech?

      likely one that is not discernible at this point

      Cui bono? Their owners (sorry, "campaign contributors") want the internet turned into TV. Throw in a "national security" apparatus that hates anyone (other than themselves) having the ability to communicate quickly and securely, and it's a perfect storm of big government and big business being on the same side. There's nothing mysterious about it. It's money and power, just like it always is.

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

  • identicon
    Anonymous Coward, 8 Nov 2017 @ 10:40am

    Government actors should not be able to instigate civil anything while acting on behalf of the government.

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

  • identicon
    Anonymous Coward, 8 Nov 2017 @ 11:47am

    Link maintainance

    Law professor Eric Goldman has an excellent post detailing the changes…

    That hyperlink now leads me to a 404 landing page.

    Over the past two days, law professor Eric Goldman's Technology & Marketing Law blog seems to be slightly altering their url format. So, here's a working link —as of midday today— to his Nov 6, 2017 post, “Manager’s Amendment for SESTA Slightly Improves a Still-Terrible Bill”.

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

  • icon
    Coyne Tibbets (profile), 8 Nov 2017 @ 2:12pm

    Well,

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

  • icon
    MyNameHere (profile), 9 Nov 2017 @ 1:14am

    I think the key line in all of this is " by any person who violates section 1591".

    So now, the civil case cannot be made unless a violation of 1591 is shown, which would normally lead to criminal charges. Any lawsuit which hinged on the concept of " by any person who violates section 1591" would pretty much be on hold until the criminal part is complete.

    If the state AG's failed to file charges, they would have a very hard time in a lawsuit. They would be suing someone for something that violated the law, yet they are not actually enforcing the law on the criminal side.

    I can see a clear path to a very quick dismissal, with prejudice and collection of legal fees.

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

    • identicon
      Anonymous Coward, 9 Nov 2017 @ 8:52am

      Re:

      Any lawsuit which hinged on the concept of "by any person who violates section 1591" would pretty much be on hold until the criminal part is complete.

      The quoted language “by any person who violates section 1591“ is from section 5(a) of the amended version of the bill. That section of the bill amends 18 USC § 1595 by adding subsection (d), and the quoted language is inserted under that new subsection (d).

      Section 5(b)(1) of the bill further amends § 1595, by narrowing the scope of the stay provision in code subsection (b)(1). That is, the bill's § 5(b)(1) amends code § 1595(b)(1), so that the mandatory stay does NOT apply to the state attorney general parens patriae civil action provided for in the new § 1595(d).

      The bottom line is that the parens patriae action wouldn't necessarily be “on hold” during criminal proceedings.

       

      ( Incidentally, Eric Goldman's redline fails to show the changes to § 1595(b)(1) and (c) made by the bill's section 5(b) “Technical and Conforming Amendments”. This looks like an oversight by Professor Goldman. )

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

  • identicon
    Anonymous Coward, 9 Nov 2017 @ 9:41am

    S.1693 latest action

    Yesterday, Elliot Harmon at EFF's Deeplinks blog reported, “SESTA Approved by Senate Commerce Committee—Still an Awful Bill

    The Senate Commerce Committee just approved a slightly modified version of SESTA, the Stop Enabling Sex Traffickers Act (S. 1693). . . .

    (Embedded hyperlinks omitted.)

    As of this morning, the S.1693 pages on the Congress.gov site have not yet been updated to reflect yesterday's action. Presumably, they will be updated reasonably quickly.

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

  • icon
    Coyne Tibbets (profile), 10 Nov 2017 @ 12:22pm

    Money

    Why Does SESTA Allow State Attorneys General To File Civil Claims?

    Because states are looking for a new source of forfeiture money.

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


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