Legal Issues

by Mike Masnick


Filed Under:
cda 230, florida, fosta, immunity, sesta

Companies:
backpage



Yet Another Court Says Victims Don't Need SESTA/FOSTA To Go After Backpage

from the well,-look-at-that dept

We already pointed to a ruling in Massachusetts showing that victims of sex trafficking don't need SESTA/FOSTA to get around CDA 230 and go after Backpage when Backpage is an active participant, and now another court has found something similar. Found via Eric Goldman, a court in Florida has rejected a motion to dismiss by Backpage on CDA 230 grounds. The full order is here (and embedded below).

As with other cases (including the Massachusetts case) the real issue here is whether or not Backpage was just a service provider, or if it crossed the line into being a content provider itself, and did so in ways that broke the law. To be clear, the court here does seem... confused about CDA 230 and how other courts have ruled, and basically rejects plenty of existing caselaw and the nature of 230:

Some courts characterize the "protection" of § 230(c)(1) as "a broad immunity," but this view is not universal.... And some courts regard § 230(c)(1) as an affirmative defense that needs not be overcome by a complaint's allegations and is not the proper subject of a Rule 12(b)(6) motion to dismiss. Some courts have found that even if it is affirmative defense, the issue of the applicability of §230(c)(1) can be resolved on a 12(b)(6) motion if it is clear from the face of the complaint...."

That basically is laying out a few different interpretations of CDA 230 -- but does little to note that nearly all courts have found it to represent a broad immunity, and one that can be used at the motion to dismiss stage. Instead, this ruling points to a few limited cases that have found otherwise, and acted as if there's a widespread dispute with equal balance on either side. It also exaggerates the finding in some of those other cases, such as in Barnes where the court noted 230 immunity is not "absolute" (that case involved an employee promising to do something, which removed the 230 immunity). But here, the court interprets "not absolute" as meaning "not broad." And, as Goldman points out in his post, those two things are not synonymous.

Also odd in this ruling is that, unlike in the Massachusetts ruling, the court here presents no explanation of why Backpage has passed the threshold from service provider to content provider, and thus is no longer immune under CDA 230. Instead, it just says sufficient evidence has been presented.

Plaintiffs have alleged facts suggesting that Defendants materially contributed to the content of the advertisements, and thus the issue of CDA immunity cannot be resolved on a Rule 12(b)(6) motion to dismiss in this case.

That's... a pretty important sentence in a ruling, and you'd hope that it was backed up with evidence for why that is (as happened in the Massachusetts case). That's not to say it's wrong. It might be right, but it's important to know what activities take one from being a service provider to a content provider, and courts have fought over these issues in the past. Here, what you see in that sentence above is basically all the court has to say.

The court does note other problems with the complaint, and tells the plaintiffs to try amend the complaint, and this time to actually plead an actual federal claim. As it notes the existing claim doesn't make much sense -- arguing that Backpage tried to hide advertisements of minors, but this case doesn't even involve a minor. However, as Eric Goldman points out, even with this weak of a complaint and with a court that doesn't really explain its reasoning, the court is willing to get past the CDA 230 arguments, and again this raises the issue of why did we need SESTA and FOSTA in the first place.

The loudest advocates for SESTA/FOSTA kept falsely portraying Backpage as 100% immune from any claim due to CDA 230. Yet, this ruling and last week's ruling (not to mention an earlier ruling in Washington, a federal grand jury, and a Senate investigation) certainly suggested that Backpage was not 100% protected by CDA 230. Instead, just as Congress intended with CDA 230, it was protected from illegal actions done by others on its platform, and is not protected from illegal actions that it does itself.

But, of course, none of this seems to matter. Congress overwhelmingly voted SESTA/FOSTA through, and we're hearing that President Trump will sign it into law sometime next week.


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  • icon
    Ninja (profile), 4 Apr 2018 @ 12:07pm

    It was obvious from the start. Aside from some petty shills we see around here, it's not about helping victims. It's about grandstanding and/or control. It all depends on who you are talking about.

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

  • identicon
    Anonymous Coward, 4 Apr 2018 @ 12:19pm

    Sane people cannot fight against this stuff

    Instigated satanic cult panic? no problem we'll just make you AG (https://en.wikipedia.org/wiki/Day_care_sex_abuse_hysteria) want to censor public discourse no problem (https://en.wikipedia.org/wiki/Parents_Music_Resource_Center)

    the truth is that the political elite of America will support anything that harms children, do your own research if you don't believe me, from defeating school lunches to calling black children "super predators" criminalizing and victimizing children is the real skill of American politicians truly no child will be left left behind, to have some sort of free and happy life..

    They surrounded the Parkland school with 400 cops on the day that kids came back to school, just in case they had not got the message that violence is power.

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

    • identicon
      Anonymous Coward, 4 Apr 2018 @ 12:23pm

      Re: Sane people cannot fight against this stuff

      > They surrounded the Parkland school with 400 cops on the day that kids came back to school, just in case they had not got the message that violence is power.

      How colorful your hallucinatory world must be to come up with this kind of stuff.

      Screw cops and every last iota of their corruption but we all know why they were at Parkland and it wasn't for the reasons you state.

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

      • identicon
        Anonymous Coward, 4 Apr 2018 @ 1:18pm

        Re: Re: Sane people cannot fight against this stuff

        Really why where they there ? 400 of them.

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

        • icon
          Roger Strong (profile), 4 Apr 2018 @ 1:50pm

          Re: Re: Re: Sane people cannot fight against this stuff

          Remember National Security Advisor Michael Flynn and his son, also on Trump's transition team? Both of them along with Alex Jones broadcasting delusional PizzaGate claims? Leading to one of their followers shooting up the restaurant with an AR-15?

          Flynn Jr. is complaining on Twitter about the lack of violence against the Parkland students.

          Add that to Alex Jones, Fox News, the NRA, various Republican officials and more calling the students traitors, communists, and more. With lies about ripping up the Constitution, false flag operations and more.

          That's a whole lot of influential people demanding that Somebody Do Something about those students. Given how their followers have recently answered their calls - from neo-Nazi marches and attacks to the PizzaGate shooting - a large police presence is justified.

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

          • identicon
            Anonymous Coward, 4 Apr 2018 @ 5:02pm

            Re: Re: Re: Re: Sane people cannot fight against this stuff

            I'm sorry I don't see how that isn't telling kids that violence is power.

            A large police presence is a show of force nothing more.

            Did they expect another shooter that they where somehow protecting against.. No.. did they expect that other students would loose their little minds and shoot up the school..

            Probably

            The state is violence and the state ASSERTS a MONOPOLY on VIOLENCE

            the message was clear, fuck with us and you will be killed.

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

  • identicon
    Anonymous Coward, 4 Apr 2018 @ 12:20pm

    Missing the first part of the first sentence of the second to last paragraph.

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

  • identicon
    Anonymous Coward, 7 Apr 2018 @ 6:26am

    What about sites like wifeposter and wifelovers who operate in Florida and invite people to post vouryersim pics of their wives and have lust after threads about step daughters and neighbors plus rental threads. What about those victims?

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

    • identicon
      Wendy Cockcroft, 9 Apr 2018 @ 2:26am

      Re:

      Neither SESTA nor FOSTA will fix those issues.

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

      • identicon
        Anonymous Coward, 9 Apr 2018 @ 8:12am

        Re: Re:

        How would SESTA or FOSTA not apply to sites like wifelovers and wifeposter or bbwsex4u??? It's an american based company. If I'm not mistaken, it seems that these new laws could potentially make said webmaster tarrob web liable for the illegal and abusive content it's members commonly share and trade upon their forums and personal sections there.

        Rape requests, wife rentals, self admittingly distributing private photos of family members with no consent, self admitted in print the photos are sometimes acquired without the victims awareness, sometimes stolen photos. Threads trading photos of school teachers, step daughters, sisters and sister in laws, mother in laws, neighbors, friends, wives, ex wives, and more, plus commonly posted without victims awareness and regularly traded while poster tags them with words like unaware or unsuspecting.

        Often posted with zip codes and locations, with the poster asking other members online if they recognize them from their local towns. Just the tip of the iceberg there. Seems to me that the feds can now choose to shut these sites down instead of investigating each individual member for breach of the law. Which would be a massively great thing for the unaware victims of non-consensual porn there.

        Unless I misunderstood the new laws, which is always possible; I think it 100% applies. Just my opinion.

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


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